https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1397

Kathurima v Mworia (Civil Appeal 171 of 2020) [2026] KECA 1397 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1397 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal 171 of 2020 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between Wilson Kathurima Appellant and John Kaimenyi Mworia Respondent (Being an appeal against the Judgment of the Environment and Land Court at Meru (Cherono, J.) dated 14th November 2018inOriginating Summons No. 104B of 2009 Originating Summons 104b of 2009 ) Judgment 1.We shall consider a brief history of the case in order to provide context for the dispute before the court. The respondent, John Kaimenyi Mworia, filed an Originating Summons (OS) dated 16th September 2009, in the High Court at Meru, naming the appellant herein, Wilson Kathurima, as the respondent, and seeking a declaration that he was entitled to the parcel of land known as L.R. No. Nyaki/Thura/580 (suit property), measuring 0.6 hectares, by way of adverse possession, which property was registered in the name of the respondent; an order that he be registered as the sole proprietor of the suit property in place of the respondent, and an order requiring the respondent to sign all requisite documents to effect the transfer of the suit property to him, in default the Deputy Registrar executes the same, along with an order for costs of the suit. 2.The summons was supported by the affidavit of the respondent, sworn on 29th September 2009, in which he deposed that though the suit property was registered in the name of the respondent, in 1989 he entered into a sale agreement with one, Maricella Njiru to purchase the suit property, he immediately took vacant possession of the suit property alongside his extended family, including his wife, four children, and their grandfather. 3.The appellant asserted further that he had significantly developed the land, he had constructed two permanent houses and a store; he practised zero grazing, planted subsistence crops and implemented a water piping project. Further, he had fenced the entire property with chain-link and barbed wire. He contended that the respondent had never been in possession of the suit property, yet his own occupation had been for more than 20 years, characterised as being open, unhindered, notorious, undisturbed and uninterrupted. 4.In response the respondent, John Kaimenyi Mworia filed a replying affidavit sworn on 8th February 2010 and on his part asserted that he was the registered proprietor of the suit property and claimed that the appellant had trespassed since March 2009, prompting the respondent to file a suit seeking for eviction in the High Court of Kenya at Meru, being Civil Suit No. 125 of 2009, where the appellant failed to file a memorandum of appearance within the stipulated period, despite being duly served with summons and the plaint. As a result, an interlocutory judgment was entered against him on 22nd October 2009, and eviction orders, a permanent injunction, and costs of the suit were granted on 3rd December 2009. 5.The respondent further stated that a decree for eviction was issued by the High Court on 9th December 2009, and the appellant was evicted on 15th December 2009. He further stated that he had given the appellant a notice to vacate on 4th August 2009, but the appellant ignored it. It was his case that the issue of adverse possession was irrelevant, and he stated that his ownership rights should not be interfered with by someone who had no legitimate claim to the property in question. He contended further that the appellant is a stranger and should pursue any remedy against Maricella Njiru, rather than targeting the respondent or his legally acquired property. 6.At the hearing, the matter proceeded by way of viva voce evidence. The appellant (PW1) testified that he had lived on the suit property since 1989 and that it was registered in the respondent's name. He claimed to have purchased the land from Maricella Njiru, the widow of Igweta Riata, for Kshs. 62,500, but did not receive a title. Upon purchasing the property, he constructed a three-bedroom timber house, later a permanent house up to the lintel, and planted various trees. He claimed that Maricella refused to complete the succession process, leading him to take her to the Meru Tribunal (LDT No. 7 of 1999), where elders ordered her to proceed with succession. 7.Maricella appealed to the Provincial Disputes Appeal Tribunal while the appellant continued living on the land. While in Nairobi, he was informed that Maricella had evicted his family from the suit property. The appellant received a letter from the District Commissioner of Meru reinstating the appellant's position until the appeal was resolved. He regained possession of the property but was evicted again in 2009 through a court order (HCCC No. 125 of 2009). He further claimed that his lawyer successfully challenged the eviction order, which was set aside. He also asserted that one Julius Kathurima had placed a caution on the suit property on 28th January 1986, and that the respondent had never lived on the land. 8.He claimed further that he lived on the land until 2009, which was a total of 20 years, and sought to be declared the owner based on the doctrine of adverse possession. 9.Mary Kirumba (PW2), the appellant’s wife, testified that they purchased the suit property in 1989 from Maricella Njiru and initially built a semi-permanent house, followed by a permanent house in 1995. She further stated that they farmed on the suit property, grew crops, and had settled there with their family. She asserted that although Maricella attempted to evict them,the District Commissioner advised them to stay until their case, filed by her husband in Embu in 1999, was resolved. They won the case but were later evicted by the respondent and the OCS, pursuant to a court order dated 23rd December 2009, resulting in the demolition of their houses. She claimed that they had suffered with the children and wished to be reinstated to the suit property. 10.Justus Kathurima M’Thinyai, PW3, testified that the original owner of the suit property was his late uncle, Igweta Riyata, who did not live on the suit property but resided 15 km away. His mother previously farmed the land but stopped around 1989, the same year Maricella sold the property to the appellant, who then took possession, built houses, developed the land, planted trees, and began farming, while PW3 was living nearby in Thuura. 11.He testified that he previously had an interest in the land as it was their ancestral land and had sued Igweta, but the case was dismissed, and thereafter the appellant purchased the land. Further, he had placed a caution on the land in 1986. He also confirmed the appellant lived there until he was evicted in December 2009. He was aware that Maricella sold the land to the respondent, who then evicted the appellant pursuant to a court order. 12.The respondent, DW1, testified that he had not known the appellant before the case. He lives on the suit property which he acquired through the Meru High Court Succession Case No.364 of 2005. He was a petitioner in the succession cause, together with Julius Muthuma Igweta and Susan Kaguri Igweta, as administrators of the estate of the late Andrew Igweta M’Irutha, the previous registered owner. The affidavit for the grant confirmation stated that the suit property was registered in the respondent's name, and the court granted the orders on 17th October 2008. 13.He stated that in 2009, he began clearing bushes, and he discovered a structure where an old man lived. The old man revealed that the structure belonged to his son, Kathurima. The respondent then obtained eviction orders from the High Court (HCCC No. 125 of 2009) and continued clearing the bushes and developing the property by building two permanent houses and a semi-permanent timber house. 14.He stated further that no one had questioned his acquisition of the suit property during the succession proceedings. He pointed out that the individual from whom the appellant allegedly purchased the land was not an administrator of Igweta's estate, and no legal action had been taken against the estate's administrators. 15.On 14th November 2018, the High Court delivered its judgment where it held that the appellant was unable to show how he acquired the property from Marcella Njiru, while it was still registered in the original owner's name. Furthermore, the appellant did not provide a copy of the sale agreement, which could have helped the court evaluate the legality of his claim regarding the alleged transaction with Marcella Njiru. 16.The court concluded that even if the appellant had purchased the land from Marcella, the alleged purchase of the suit property in 1987 did not grant him any legitimate interest, as Marcella had not obtained letters of administration to conduct any legal business on behalf of the estate of Igweta Riata. The court held that if the appellant was claiming any interest in the estate of Igweta Riata based on the land purchase, he should have presented his claim to the administrators of the deceased’s estate before they confirmed the grant and distributed the estate among the beneficiaries. The appellant failed to assert his rights or interests in the estate by suing the administrators in 2009, after they had already obtained the letters of administration. 17.Regarding the claim of adverse possession, the court ruled that since the appellant admitted he was no longer in possession of the suit property, his claim could not be upheld. In response to the appellant’s argument that he was not a defendant in the eviction suit based on the court order, the court maintained that once the appellant failed to challenge his removal from the property via the court order within the said suit, he could not file a separate suit seeking reinstatement to the same property. 18.Moreover, the court found that the appellant's admission of taking possession of the suit property as a purchaser disqualified him from the principles of adverse possession. His occupation of the property before eviction was deemed not adverse. Ultimately, the court found that the claim of adverse possession was not proved and that the suit was not meritorious and dismissed the same with costs. 19.Dissatisfied with the judgment, the appellant preferred this appeal and raised 5 grounds of appeal in his memorandum of appeal dated 10th November 2020, claiming that trial court erred in law and fact: by misconstruing the evidence in relation to the doctrine of adverse possession; failing to find that the appellant had proven his case on a balance of probabilities; failing to properly analyze the evidence on record and considered extraneous matters, resulting in a wrong finding; by arriving at a conclusion against the weight of the evidence presented. 20.Learned counsel for the appellant filed submissions dated 21st May 2025. On whether the court properly construed the evidence to arrive at its conclusion, counsel argues that the appellant occupied the suit property continuously and uninterrupted from 1989 to 2009. He asserts that the trial court failed to recognise that after 12 years, the respondent held the title merely as a trustee for the appellant and any subsequent transferee. In support of his contention, counsel relies on Grace Kamene M’Berece vs. Joyce Rigiri w/o David Mbogori & Another, Civil Appeal No. 73 of 2015, where this Court held that the owner holds the title as a trustee, as the same is extinguished vide the doctrine of adverse possession after 12 years. 21.Counsel further contends that the appellant's occupation was based on an agreement with another party rather than with the owner’s permission, as the land was sold to him by the widow of the original owner, not the owner. He argues that the claim that the appellant was evicted by a court order is unfounded because that order was later set aside and was issued after the appellant had been in peaceful and continuous possession for a period of 12 years. Counsel asserts that the eviction was a deliberate attempt to undermine the pending suit, carried out illegally while the case was ongoing in another court. 22.On whether the court considered extraneous matters, counsel submits that the trial Judge focused on extraneous matters pertaining to the estate of Igweta Riata, rather than on the specific issue of the suit property, which was under the respondent’s control. Counsel argues that the appellant was not claiming an interest in the estate of Igweta Riata but instead was pursuing a claim for adverse possession against the registered owner. Counsel contends that the trial Judge failed to focus solely on the adverse possession claim and did not properly weigh the evidence presented, resulting in an erroneous conclusion. 23.In opposition, learned counsel for the respondent filed submissions dated 21st May 2025. On whether the appellant has been in occupation of the suit property since 1989, counsel submits that the appellant alleges taking possession of the suit property in 1989, 3 years after the death of the deceased, the previous owner. The grant in the estate of the deceased was issued on 19th September 2006. Counsel argues that before then, the dependents of the deceased registered proprietor had no legal capacity to either sell the land or sue on behalf of the estate, as they had no capacity to do either. 24.Counsel argues that the lack of capacity ceased on 19th September 2006 when the grant was issued. Further, under the Limitation of Actions Act, an action to recover land could be brought at any time before the lapse of 30 years from 1989, when the alleged right of action accrued against the respondent, ending in 2019. Counsel maintains that if the appellant had taken possession of the suit property during the lifetime of the deceased registered owner, the typical 12-year limitation period would have applied; however, that was not the case. 25.Counsel further argues that by failing to join the legal representatives of the late registered owner or of Maricella Njiru, who allegedly sold the suit property to the appellant in 1989, 3 years after the death of the registered owner, the appellant disentitled himself from the court computing the period before the respondent became the registered owner on 15th July 2009. 26.Counsel asserts further that, since the administrators of the deceased’s estate and the one who allegedly sold the land were not joined as parties to the suit, the court would not have been right to consider and make a determination on the nature of occupation of the suit property by the appellant against parties not actually before it. It would have been disadvantageous to the respondent who was not in the picture between1989 and 2009 when he became the registered owner, and against the letter and spirit of Order 1 rule 9 of the Civil Procedure Rules. 27.This being a first appeal, it is our duty, in addition to considering submissions by the appellants and the respondents, to examine, analyse, and re-assess the evidence on record and reach our own independent conclusion in the matter. This approach was adopted in Kibui & Another vs. Kibui (Administrator of the Estate of Mary Wangechi Kibui) & 6 Others [2025] KECA 1149 (KLR), where this Court held; -“Being a first appeal our mandate as donated by rule 31 of the Court of Appeal Rules, 2022 is to re-appraise the evidence and to draw inferences of fact; to retry the case. That mandate has been captured in various pronouncements of this Court in such cases as Nairobi Bottlers Limited vs. Imbuga (Civil Appeal E661 of 2022) [2024] KECA 434 (KLR) where it was stated:“Our mandate in a first appeal as donated by rule 31 of the Court of Appeal Rules, 2022 is to re- appraise the evidence and to draw inferences of fact; to retry the case. That mandate has been the subject of various judicial pronouncements in such cases as Nicholas Njeru vs. Attorney General & 8 Others [2013] eKLR, where it was stated: “[In] a first appeal, we are required to re- evaluate the evidence and arrive at our own independent findings and conclusions of the matter.” 28.Having reviewed the pleadings, the evidence placed before the court, submissions by rival parties, case law cited and the law, we are of the view that the only issue arising for determination in this appeal is whether the appellant proved entitlement to the suit property by way of adverse possession. 29.In its analysis, the trial court held:“The defendant produced a grant of letters of administration intestate issued in succession cause no. 364 of 2005 (Meru) in respect of the estate of Igweta Riata who died on 11/1/1986 and the administrators of his estate were Julius Gituma Igweta…(sic) They were the same people who transferred the suit property to the defendant on 15/7/2009 from that background the purported purchase of the suit property by the plaintiff from Maricella Njiru in 1987 was not capable of conferring any interest to the plaintiff as the said Maricella Njiru had not obtained letters of administration to enable her transact any legal business on behalf of the estate of Igweta Riata.” 30.The appellant’s initial entry into the suit property was by way of an alleged purchase from one Maricella, wife of the deceased. We agree with the trial court’s holding above that Maricella could not possibly have sold any interest in the suit property, as she had none herself. It is trite law that a party cannot transfer a proprietary interest in land where he has no title or interest capable of being transferred, and any purported sale in such circumstances is null and void. In Mwangi James Njehia vs. Janetta Wanjiku Mwangi & Another [2021] KECA 768 (KLR), this Court stated thus:“Could the deceased in the circumstances pass good title to any buyer, whether innocent or otherwise?...We have no hesitation in concluding that the appellants do not fall in the category of innocent purchasers. Their appeal is destined to fail for two reasons. First, because as we have demonstrated in this judgment, the deceased had no good title to pass to anybody; second because the appellants were not innocent purchasers for value without notice and they cannot call in aid the provisions of Section 26 (1) of the Land Registration Act.” (Emphasis added) 31.The trial court further observed that the appellant had indeed not proved the alleged sale of the suit property to him. To this end, the trial court held that:“It is not shown how the plaintiff purchased the suit property from Marcella Njiru while the same was still in the name of the original owner. The plaintiff has not produced a copy of the sale agreement to enable this court determine the legality or otherwise of his agreement with the alleged Maricella Njiru.” 32.On whether the appellant proved entitlement to the suit property by way of adverse possession, the law on adverse possession is settled. A claimant must demonstrate actual, open, exclusive and continuous possession for at least twelve years without interruption. In Sisto Wambugu vs. Kamau Njuguna [1983] KECA 69 (KLR) this Court held that:“In order to acquire by the statute of Limitation title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it… The proper way of assessing proof of adverse possession would be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period.” 33.Similarly, in Lewa vs. Mwagandi (Civil Appeal 56 of 2014) [2015] KECA 532 (KLR), this Court stated:“Adverse possession is essentially a situation where a person takes possession of land, asserts rights over it and the person having title to it omits or neglects to take action against such person for a period of twelve years.” 34.The appellant claimed to have entered the land in the year 1989 through a purchase from a person who was not the registered owner. This Court has consistently held that possession founded on a sale agreement is not adverse until the purchaser’s possession becomes inconsistent with the title of the true owner. In Sisto Wambugu vs Kamau Njuguna (supra), this Court further stated that where a person is in possession of land with the consent of the owner, the possession cannot be adverse until the consent is terminated. This Court held:“The plaintiff must show some further quality, namely adverse possession. The plaintiff was allowed in possession as a purchaser pending completion; and he was allowed to stay there because he was a purchaser. If he had been a mere trespasser no doubt the vendors would have brought proceedings. But the vendors, in all the circumstances of the case, seem to have decided by accident or design to allow matters to drift on without taking steps to evict him from the premises, …For example, in the first ten years of the plaintiff’s occupation, he could have taken up the same attitude and, as far as we know, would have taken up the same attitude …that he was a purchaser in possession awaiting ascertainment of the purchase price and completion. In those circumstances, it does not seem to me to be right that he can, in retrospect, say:‘Oh, that was all a mistake. True, I looked like a purchaser in possession, but the vendors could have evicted me; and, although I did not say so, although the contract was still subsisting, although I took no steps to repudiate it so that they were entitled to look on me as a purchaser, although they did not realize it and it may not have suited me at the time, I was in fact a purchaser in adverse possession quietly picking up the years which are necessary to elapse before the Limitation Act 1939 barred the vendors’ title ...’In my judgment, the plaintiff, having in effect been able to go in and stay under the contract, cannot now repudiate the contract with hindsight. As I have said, if at any time he made it clear that he was no longer bound by the contract, then different considerations would apply. Equally, no doubt, if he had made that clear, then the vendors would have taken action against him. It is only the fact that he was there as a purchaser pending completion which has enabled time to run in his favour, as he says, and which enables him to claim a title by adverse possession. Accordingly, in my judgment, although the full period required by the 1939 Act has elapsed, the plaintiff has not shown that he was in adverse possession.” (Emphasis added) 35.In this regard, the learned Judge held that:“The admission by the plaintiff that he took possession of the suit property as a purchaser clearly removes his claim from the principles of adverse possession.” 36.Following the holding above, had the appellant rescinded the contract and still been allowed to remain in possession, then it would have been a different case. But to enter the suit property under the guise of a sale agreement, stay thereon in the hope that the sale agreement is valid, and then, at the point of eviction, turn around and say time had been running for the purpose of adverse possession, smacks of impropriety. 37.The learned Judge was therefore correct in holding that the appellant, having entered onto the suit property originally as a purchaser, could not sustain a claim for adverse possession. Instead, he could have laid a claim against the estate, an option he chose not to pursue. The trial court held that:“If indeed the plaintiff was claiming any interest from the estate of the said Igweta Riata by way of a purchase of land, he should have presented the same before the administrators for consideration before the grant was confirmed and the estate distributed to the beneficiaries. The administrators of the estate of a deceased person occupy a legal position in law similar to that of the deceased before his demise. They have the same legal capacity to sue and be sued on behalf of the estate of the deceased for any interest or claim. Being a purchaser for value in the suit land which was an interest in the estate of the deceased Igweta Riata the plaintiff failed to assert his right and/or interest in the estate of the said Igweta Riata by suing the administrators in 2009 after they obtained letters of administration on behalf of the estate of the said Igweta Riata.” (Emphasis added) 38.We agree with the learned Judge that the appellant’s claim lay as against the estate of the deceased, if not the estate of Maricella. Indeed, it is rather interesting that the respondent filed suit for eviction in HCCC No. 125 of 2009 on the 16th of September 2009, seeking eviction, and about two weeks later, the appellant filed the OS whose judgment is the subject of this appeal, seeking a declaration that he is the owner of the suit property vide the doctrine of adverse possession. 39.We have carefully considered the reasoning of the trial court in all aspects, and we find no misdirection in law or fact. The learned Judge properly considered: the history of the title; the alleged purchase; the succession proceedings; the eviction order and the lack of continuous and uninterrupted occupation against the current title holder's possession. 40.It is trite that this Court will not interfere with findings of fact unless they are based on no evidence or on a misapprehension of the evidence. In Mwirabua & Another vs. Governor of Meru County & Another (Civil Appeal 305 of 2019) [2026] KECA 354 (KLR), this Court cited with approval the case of, Peters vs. Sunday Post Ltd [1958] EA 424, where the court held that an appellate court will not lightly, differ from the findings of a trial court on questions of fact unless it is evident that the findings are based on no evidence or are plainly wrong. 41.In the end, we find that the appeal lacks merit, and the same is dismissed with costs. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.S. ole KANTAIJUDGE OF APPEAL.........................................J. LESIITJUDGE OF APPEAL.........................................ALI-ARONIJUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.