Kiruga v Kiruga & another (Civil Appeal 52 of 1985) [1988] KECA 122 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that living on a relative's land with permission grants no ownership rights, and buyers of registered land aren't bound by such informal occupation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge's finding of fact on conflicting oral testimony (credibility of the parties) could be disturbed on appeal
- 2.On the issues joined between the brothers, who bore the onus of proof
- 3.Which of the two divergent stories was the more likely
- 4.Whether the appellant acquired title by adverse possession
- 5.Whether the land was held in trust for the appellant under Kikuyu customary law
- 6.Whether the appellant's occupation gave him an overriding interest binding the second respondent as purchaser
Key legal issues
#Appellate deference to trial judge's findings on credibility
The majority declined to disturb the trial judge's finding that the 1st respondent was credible and the appellant was not, applying Watt v Thomas and Peters v Sunday Post.
The trial judge saw and heard the witnesses and made a positive finding on conflicting oral testimony. The appellant was shown to have lied on oath about inheriting and selling land. Following Peters v Sunday Post, an appellate court may review the evidence but must exercise that jurisdiction with caution; it is not enough that it might have reached a different conclusion. The 1st respondent's story was consistent and inherently credible.
Burden of proving a customary trust
The appellant, claiming that the registered proprietor held half the land in trust, bore the onus of proof and failed to discharge it.
As registered proprietor under section 27 of the Registered Land Act, the 1st respondent enjoyed absolute ownership. The appellant's two mutually inconsistent stories (sole inheritance versus joint exchange) and his proven lies about receiving land destroyed his credibility. Documentary evidence showed at least two plots registered in and sold by the appellant, making the trust claim improbable.
Adverse possession claim
The appellant's occupation was permissive, by invitation of his brother, and could not found adverse possession.
Both appellate accounts accept that the appellant was invited to live on the land with the family. A licensee's occupation is not adverse to the registered owner. The licence was revoked on the 1971 sale; the appellant then became a trespasser liable to be ejected. Platt JA, dissenting, would also have rejected adverse possession but found a customary trust instead.
Overriding interests under the Registered Land Act
The majority held the appellant had no overriding interest; Platt JA dissented, finding an overriding interest under section 30(g) binding the purchaser who failed to inquire of the occupants.
Section 30 protects a person in actual occupation entitled in right of such occupation. On the majority's view the appellant was a mere licensee with no legal right to occupation, so nothing bound the purchaser; Boland was distinguished. Platt JA, relying on Hodgson v Marks, held the purchaser's failure to enquire of the appellant's wife left him bound by the equitable interest in possession.
Legal principles established
#- An appellate court will not substitute its own factual finding for that of a trial judge who saw and heard the witnesses unless there is no evidence to support the finding or the judge is plainly wrong.
- An appellate court cannot upset a trial judge's finding of fact merely by holding that evidence was 'not proved'; where there was evidence accepted by the trial court, the appellate court's disagreement is not a valid ground.
- Mere permissive occupation of a relative's land does not create an overriding interest under section 30 of the Registered Land Act binding a bona fide purchaser.
- A party alleging that a registered proprietor holds land in trust bears the burden of proving that trust.
Court orders
#- 1.Appeal dismissed with costs
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Would have allowed the appeal in part: found a customary trust impressed on No. 76, rejected adverse possession, and would have ordered partition of one-third to the plaintiff with one-half of High Court costs.
The result then is that I would allow the appeal and set aside the judgment of the High Court. I would not grant the prayer for adverse possession, but I would uphold the claim of a customary trustp. 8
Wrote the judgment
The trial judge's finding on credibility of conflicting oral testimony should not be disturbed; the appellant failed to discharge the onus of proving a trust and acquired no overriding interest as a mere licensee.
an appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrongp. 13
Wrote the judgment
Agreed with Apaloo JA: the appellant inherited and sold his own land, occupation was an act of charity not a trust, and section 143(1) of the Registered Land Act protects the first registration.
In the result I would agree with Apaloo JA that there is no merit in this appeal and that accordingly it should be dismissed with costs.p. 17
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute; the judgment does not state the specific provision.
Relief refused
#Declaration that the 1st respondent held the land in trust for the appellant under Kikuyu customary law
The appellant failed to discharge the burden of proving the trust; he had inherited and sold his own land
Claim to the land by adverse possession
The appellant's occupation was by invitation and licence of his brother, not adverse
Claim of an overriding interest under section 30 of the Registered Land Act binding the purchaser
A licensee permitted to occupy out of humanity acquires no overriding interest; Boland distinguished
Costs
Appeal dismissed with costs; the appellant was ordered to pay the respondents' costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The conclusion is that this appeal fails and should be dismissed with costs.
In the result I would agree with Apaloo JA that there is no merit in this appeal and that accordingly it should be dismissed with costs.
an appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong
The word "proof", as a legal concept, is not pre-ordained and has no objective existence, discoverable either by logic or analysis. It is merely the conclusion that the tribunal draws on any given set of facts or evidence.
an elder brother who is permitted by his younger brother to occupy his land because he had none of his own acquires, in my judgment, no overriding interest which binds a purchaser.
I would not grant the prayer for adverse possession, but I would uphold the claim of a customary trust and I would order the second defendant to cause the property to be partitioned into portions of one-third for the plaintiff and two-thirds to the second defendant
Issues in the judgment
#Internal date inconsistency: Platt JA's dissenting judgment is headed 'October 18, 1988' but the judgment is dated and delivered at Nairobi on 13 October 1988.
Platt JA's dissent proposes orders 'as proposed by Apaloo JA', yet Apaloo JA proposed dismissal of the appeal, while Platt JA would allow it and substitute judgment; the reference is internally contradictory.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwaniki v Mwaniki & another (Civil Appeal 84 of 2020) [2026] KECA 804 (KLR)[2026] KECA 804 (KLR)24 Apr 2026applied
- Mugambi & 2 others v M'Mugambi (Civil Appeal 274 of 2019) [2025] KECA 1235 (KLR)[2025] KECA 1235 (KLR)27 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Kiruga v Kiruga & another (Civil Appeal 52 of 1985) [1988] KECA 122 (KLR)", Case Analysis (1988). Civil Appeal (High Court suit over parcel No. Ndeiya/Makutano/76). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/122/eng@1988-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.