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Court of AppealDismissedCivil Appeal (Makueni ELC originating summons appeal)

Ndeto (Suing as a legal representative of James Mutua Ngui - Deceased) v Chania Enterprises Ltd & Nominees (Civil Appeal 121 of 2019) [2025] KECA 299 (KLR)

Court of Appeal of Kenya
21 February 2025
3,818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal held that living on land with the owner's permission, or visiting occasionally, can never ripen into ownership through adverse possession.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Kiage, Korir and Odunga, JJA) dismissed an appeal against the decision of C.G. Mbogo, J. of the Environment and Land Court at Makueni, delivered on 19th November 2018, which had refused a claim for a declaration of ownership of land parcel Makueni/Kikumini/460 by adverse possession. The original claimant, James Mutua Ngui, died during the appeal and was substituted by Justinah Nzilani Ndeto. The suit property had been auctioned by Kenya Commercial Bank in the 1970s and registered in the respondent's name on 10th August 1979, but the respondent never evicted the claimant's family, whose matriarch remained living on the land. The appellant, who lived in Mombasa and Kibwezi and only farmed sporadically on the parcel, claimed to have occupied it openly and continuously for over thirty years. The Court, on a first appeal under rule 31(1)(a) of the Court of Appeal Rules, 2022, re-appraised the evidence and held that the essential ingredients of adverse possession were not met: the twelve-year period could not be ascertained; the appellant was not in continuous, actual occupation; the family's possession was with the respondent's permission, evidenced by the respondent's director's visits and her offer of five acres; and there was no proof of dispossession of the registered owner. The Court affirmed the trial court's dismissal and ordered the appellant to pay the respondent's costs, while expressing the hope that the respondent would still carve out a portion of the land for the matriarch or her beneficiaries.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant established a claim for adverse possession of land parcel Makueni/Kikumini/460
  2. 2.Whether the appellant was in continuous, open and undisturbed occupation of the suit property for the requisite period of twelve years
  3. 3.Whether the appellant dispossessed the registered owner of the suit property

Key legal issues

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01

Ingredients of adverse possession

Holding

The claimant must prove open, continuous and undisturbed possession without the owner's permission for at least twelve years, and actual dispossession of the owner or the owner's abandonment coupled with the claimant's continued occupation.

Reasoning

Relying on section 7 of the Limitation of Actions Act and the decisions in Mtana Lewa and Chevron (K) Ltd, the Court held the critical period is twelve years and the burden is on the claimant to prove the period, that possession was without the true owner's permission, and that the owner was dispossessed or discontinued possession. Possession must be nec vi, nec clam, nec precario - without force, secrecy or permission.

p. 5
02

Whether occupation by family members can found the appellant's personal claim

Holding

It cannot. The appellant sued personally, and his mother's and siblings' occupation of the homestead was with the respondent's permission; the appellant himself lived elsewhere and only visited sporadically.

Reasoning

The Court noted that it was James, not Beth Mukule Ngui, who sued. DW1 testified she frequently visited the land, always met PW1, and verbally permitted her continued stay, even offering five acres. James conceded he lived in Mombasa and Kibwezi and only farmed on the land. The trial judge's finding that he was 'hiding behind Beth (PW1) and his siblings' was upheld, and no continuous dispossession of the respondent was proved.

p. 7
03

Failure to plead and prove the commencement date of the limitation period

Holding

A claimant must show on what date possession began, its nature, whether it was known to the owner, how long it continued, and that it was open and undisturbed for twelve years; the appellant proved none of these.

Reasoning

The Court adopted the test in Richard Wefwafwa Songoi v Ben Munyifwa Songoi and found it was not clear when the twelve-year period began running. James could not establish continuous occupation from a fixed date, and the corroborated evidence of the valuer David Wambua Masika dealing with him contradicted his claim of never having dealt with the registered owner.

p. 6
04

Appellate interference with findings of fact

Holding

On a first appeal the Court re-appraises the evidence and draws its own inferences, but will not interfere with the trial judge's findings unless they are based on no evidence, a misapprehension of the evidence, or wrong principles.

Reasoning

Citing rule 31(1)(a) of the Court of Appeal Rules, 2022, Makube v Nyamuro and Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja, the Court held the trial judge correctly addressed the factors establishing adverse possession, analysed the evidence, and arrived at a proper decision that the occupation, if any, was not uninterrupted. There was therefore no basis for faulting his conclusion.

p. 7

Legal principles established

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  • To acquire title by adverse possession a claimant must prove actual, effective and continuous occupation of the true owner's land, without the owner's permission, hostile and adverse to the owner's rights, for at least twelve years, and must prove dispossession of the owner; mere occasional visits or periodic cultivation do not suffice.
  • Where possession of land claimed by adverse possession began with the owner's consent, the burden lies on the claimant to prove the point in time at which that possession became adverse; failure to do so is fatal to the claim.
  • An appellate court will not lightly interfere with findings of fact by a trial judge who saw and heard the witnesses unless they are based on no evidence, on a misapprehension of the evidence, or the judge acted on wrong principles.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant shall pay the costs of the appeal to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

concurring

Agreed with Korir, JA that the appeal must be dismissed with costs, restating the settled ingredients of adverse possession: actual, effective, continuous possession without the owner's permission, hostile and adverse for at least twelve years, proved by evidence.

For one to succeed in such a claim, he must show that he has been in possession (with actual occupation being the best form of such possession) of the property of the true owner, without such owner's permissionp. 1
majority

Wrote the judgment

Wrote the leading judgment. On a first appeal the Court re-appraised the evidence and held that the appellant failed to prove continuous, open and undisturbed occupation and dispossession of the registered owner for the requisite twelve years; his possession was sporadic (he lived in Mombasa and Kibwezi) and the family's occupation was with the respondent's permission. The appeal was dismissed with costs.

The upshot is that the appeal lacks merit and I would dismiss it with costs to the respondent.p. 7
concurring

Agreed with both lead judgments, adding that where possession began with the owner's consent, the claimant must prove when that possession became adverse, failing which the claim is untenable.

Once there is evidence that the possession of the land claimed by way of adverse possession was by consent of the owner, the burden is upon the claimant to prove at what point in time that possession became adverse to the interest of the owner.p. 7
On appeal from
Environment and Land Court at Makueni
Originating Summons regarding land parcel Makueni/Kikumini/460
Jurisdiction invoked
First appeal to the Court of Appeal under rule 31(1)(a) of the Court of Appeal Rules, 2022

Relief refused

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Declaration that James Mutua Ngui (and his estate) had acquired title to Makueni/Kikumini/460 by adverse possession

The appellant failed to prove twelve years of continuous, open and undisturbed possession and dispossession of the registered owner; his family's occupation was with the owner's permission.

p. 7

Costs

Appeal dismissed with costs to the respondent.

Quotable passages

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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 upshot is that the appeal lacks merit and I would dismiss it with costs to the respondent.
p. 7Disposition - dismissal of appeal
Being so satisfied myself, I readily agree with Korir, JA that this appeal is for dismissal, and with costs. As Odunga, JA also agrees, it is so ordered.
p. 2Final orders of the Court
Once there is evidence that the possession of the land claimed by way of adverse possession was by consent of the owner, the burden is upon the claimant to prove at what point in time that possession became adverse to the interest of the owner.
p. 7Burden of proof where possession began by consent
The possession has to be actual, efiective and continuous, so that mere occasional visits to the land, in a touch-and-go fashion, cannot sufice to dispossessed the titleholder.
p. 1Quality of possession required for adverse possession
Such possession-based dispossession, which must be without right, without secrecy and without violence on the part of the trespasser-now-turned-claimant, must be proved by evidence.
p. 1Proof of dispossession

Issues in the judgment

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minor

The lead judgment refers to 'the doctrine of recent possession', an evident slip for the doctrine of adverse possession.

minor

The same case (Mtana Lewa v Kahindi Ngala Mwagandi) is cited with inconsistent citations in the two judgments ([2015] KELA 532 versus [2015] KECA 532 (KLR)).

minor

The judgment contains no case number for this appeal; the appeal is identified only by reference to the suit property and the substituted appellant.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndeto (Suing as a legal representative of James Mutua Ngui - Deceased) v Chania Enterprises Ltd & Nominees (Civil Appeal 121 of 2019) [2025] KECA 299 (KLR)", Case Analysis (2025). Civil Appeal (Makueni ELC originating summons appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/299/eng@2025-02-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.