Njami v Njami (Civil Appeal 34 of 2018) [2025] KECA 492 (KLR)
The bottom line
#The Court of Appeal dismissed a brother's claim to family land, confirming that permissive occupation and unproven trust allegations cannot defeat a registered owner's title in Kenya.
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 respondent held the suit land (L.R. No. Nyandarua/Tulaga/5217) in trust for the appellant and his family
- 2.Whether in the alternative the appellant had acquired the suit land through the doctrine of adverse possession
Key legal issues
#Whether a trust (express, resulting or constructive) existed in favour of the appellant
No trust was established. The respondent was the first allottee of the original parcel from the Settlement Fund Trustees and advanced a development loan; the appellant produced no evidence that his father paid the purchase price, and the father, who was alive throughout, never asserted a trust.
The Court adopted the Supreme Court's exposition in Shah v Mombasa Bricks & Tiles on constructive trusts as overriding interests under sections 25, 26 and 28 of the Land Registration Act. Proof of intention to create a trust must be cogent; bare, unsubstantiated allegations cannot displace the indefeasibility of a registered title. The father's silence during his lifetime undermined the trust claim.
Whether the appellant acquired title by adverse possession
The claim failed. The appellant entered with the respondent's permission as a 'muhoi'/tenant at will, his occupation was interrupted in 1980 and by subsequent suits, and it was not exclusive since other family members also occupied the land.
Applying Mbira v Gachuhi and Kimani Ruchine v Swift, the claimant must prove non-permissive, actual, open, notorious, exclusive and adverse possession for 12 years without interruption. A tenant at will has no time running in his favour. The appellant's own statement that his brothers also lived on the land negated exclusivity, and the caution he lodged showed the possession was not peaceful.
Defects in the counterclaim pleadings
The appellant's prayers claimed the land for himself alone, not for his siblings; he failed to name third parties who had acquired subdivisions, and his prayer for 39.5 acres was not tied to any specific portion of the subdivision.
The Court read the prayers literally and found the appellant claimed for himself, contradicting his submission that he sued for the family. The respondent's constitutional objection regarding third parties was not argued before the trial court and was rejected as a ruse; equally, the contention that the suit was a representative suit for the estate was not legally tenable.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- A licensee or tenant at will cannot claim ownership of land by adverse possession because time does not run in his favour; possession must be nec vi, nec clam, nec precario, peaceful, exclusive and uninterrupted for the statutory 12 years
- A trust is an overriding interest under section 28 of the Land Registration Act, but a party alleging a trust (including a constructive trust) must prove it; a constructive trust is imposed by law whenever justice and good conscience require it and can be imported into a land sale agreement to defeat a registered title
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (trial court)
- ELC No. 55 of 2013 (formerly HCCC No. 2 of 2009)
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court (appeal as of right from the trial court's judgment)
Relief refused
#Declaration that the respondent held the suit land in trust for the appellant and transfer of 39.5 acres
No evidence that the respondent's father or any family member contributed to the purchase price; no express, resulting or constructive trust established
Declaration that the appellant acquired title by adverse possession to 39.5 acres
Possession was permissive as a 'muhoi'/tenant at will, was interrupted from 1980, was not exclusive, and did not run for a peaceful and uninterrupted 12 years
Setting aside of the trial court's judgment
The trial Judge's findings on allotment, trust and adverse possession were sound and could not be faulted
Costs
Appeal dismissed in its entirety with costs to the respondent
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.
In conclusion, we find that this appeal has no merit and we dismiss it in its entirety with costs to the respondent.
A licensee and therefore a tenant at will cannot claim ownership of land by dint of the doctrine of adverse possession as he does not have time running in his favour
It was imposed by law whenever justice and good conscience required it. A constructive trust can be imported into a land sale agreement to defeat a registered title.
this Court must reconsider the evidence, evaluate it and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and thus should make due allowances in this respect
A person who claims adverse possession must inter alia show: a. on what date he came into possession. b. what was the nature of his possession? c. whether the fact of his possession was known to the other party. d. for how long his possession has continued and e. that the possession was open and undisturbed for the requisite 12 years.
Issues in the judgment
#The trial court's judgment as quoted states the suit property 'Nyandarua/Tulaga/1002 is the property of the plaintiff', but elsewhere in the same judgment and in this appeal the suit parcel is described as the subdivision Nyandarua/Tulaga/5217 from the parent parcel Nyandarua/Tulaga/1002; the parcels appear transposed in the trial court's concluding holding.
The Court of Appeal does not state its own appeal number or a neutral citation, and the coram lists the judges by surname and initials without full given names.
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.
- Otieno v Nyakongo (Enviromental and Land Originating Summons E023 of 2026) [2026] KEELC 5365 (KLR)[2026] KEELC 5365 (KLR)31 Aug 2026
Cite this brief
#Cite this brief
Caselaw, "Njami v Njami (Civil Appeal 34 of 2018) [2025] KECA 492 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal against judgment in ELC No. 55 of 2013, formerly HCCC No. 2 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/492/eng@2025-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.