Malakwen v Kogo (Civil Appeal 290 of 2019) [2024] KECA 912 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot claim the same land through both customary trust and adverse possession — they're legally incompatible.
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 learned judge was right in finding that the respondent has acquired the 2 acres of the suit land through adverse possession
Key legal issues
#Whether the respondent acquired 2 acres of the suit land by adverse possession
The Court found the respondent was on the land with the permission of the original owner and therefore was not a trespasser; his presence was legitimate and the judge rightly dismissed the appellant's claim, but the adverse possession counterclaim could not stand alongside a customary trust claim.
The Court traced the respondent's occupation: he was born, raised, circumcised and married on the suit land, living there with Veronica Chebichii, the original purchaser, whose permission he had, as did his father who was 'adopted' into the land. Possession with permission is not adverse, so the appellant's trespass claim failed. However, having pleaded a customary trust in the same land, the respondent was inconsistent in also claiming adverse possession, so the counterclaim was dismissed.
The requirements of adverse possession under the Limitation of Actions Act
The claimant bears the burden of proving 12 years of possession that is without the true owner's permission and inconsistent with the owner's enjoyment of the land.
The Court adopted the statement in Chevron (K) Ltd v Harrison Charo Wa Shutu that the critical period is 12 years and the burden lies on the claimant to prove not only the period but that possession was without the true owner's permission and inconsistent with the owner's enjoyment of the soil. Because the respondent's occupation was permissive, the elements of adverse possession were not made out.
Legal principles established
#- A claimant cannot simultaneously claim the same parcel of land under a customary trust and by adverse possession; the two claims are inconsistent and cannot co-exist in one case.
- On a first appeal, the Court of Appeal has power to re-appraise the evidence and draw inferences of fact.
Court orders
#- 1.The respondent's counter-claim against the appellant stands dismissed.
- 2.The appellant's suit against the respondent stands dismissed.
- 3.Each party to bear their own cost.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Eldoret
- Not stated in the judgment
- Jurisdiction invoked
- First appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022
Relief refused
#Respondent's counterclaim for a declaration of customary trust or acquisition of 2 acres by adverse possession
A party cannot plead entitlement under a customary trust and in the same breath claim the same land by adverse possession
Costs
Each party to bear their own cost.
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 respondent cannot plead to have been entitled to 2-acres of land under a customary trust and in the same breath claim to have acquired the 2-acres of land under the doctrine of adverse possession.
From the foregoing we are in no doubt that the learned Judge ought to have dismissed the appellant's suit against the respondent as he did because clearly, the respondent was not a trespasser.
a. The respondent's counter-claim against the appellant stands dismissed. b. The appellant's suit against the respondent stands dismissed. c. Each party to bear their own cost.
Issues in the judgment
#The judgment holds that the respondent was on the land with permission, which ordinarily negatives adverse possession, yet it also affirmatively dismisses the respondent's adverse possession counterclaim without expressly stating whether time ever ran; the reasoning partly overlaps with the trial court's contrary finding that adverse possession succeeded.
The name of the grandmother is rendered inconsistently in the judgment as 'Veronica Chebichii', 'Veronica Chebichi Korir' and 'Veronica Chelembech Korir', and the appellant's testimony calls her 'the appellant's maternal grandmother' while other passages describe the grandparents as purchasers.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Talam v Chepngeno & 3 others (Environment and Land Case E001 of 2023) [2026] KEELC 3082 (KLR)[2026] KEELC 3082 (KLR)21 May 2026
Cite this brief
#Cite this brief
Caselaw, "Malakwen v Kogo (Civil Appeal 290 of 2019) [2024] KECA 912 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/912/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.