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Court of AppealPartially AllowedCivil Appeal (Kisumu) — appeal against the judgment in ELC Case No. 619 of 2014

Andafu v Akhulunya (Civil Appeal 70 of 2019) [2025] KECA 714 (KLR)

Court of Appeal
25 April 2025
HOHannah OkwenguJMJ. MativoJNJoel Ngugi
5,645 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that occupying land with an owner's permission is not adverse possession, reversing an order transferring the land to the occupant.

What this practically means

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Executive summary

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This first appeal from the Environment and Land Court concerned a claim of adverse possession over Land Parcel No. Butsotso/Indagalasia/248 (7.5 acres). The respondent, the registered owner's vendor, claimed he had occupied the land since 1974 under a sale agreement for Kshs 6,000, of which only Kshs 3,000 was paid; he alleged he later rescinded the sale and refunded the deposit by money orders. The ELC (Matheka J, hearing the matter de novo after Republic v Chengo) declared the appellant's title extinguished, cancelled his title deed, and ordered transfer of the land to the respondent. The Court of Appeal (Okwengu, Mativo and Ngugi, JJA) allowed the appeal. It first disposed of three preliminary points: evidence from the aborted hearing before Mwita J could not be relied on after the de novo restart; the suit proceeded ex parte but the parties' affidavits formed part of the evidence; and three documents filed in a supplementary record without leave were expunged. On the merits, the Court held that the respondent's possession was not adverse: he remained on the land under the appellant's permission (an averment never controverted) and claimed the land as of right, having filed a claim before the Lurambi Land Disputes Tribunal acknowledging the appellant's ownership. Permissive occupation is inconsistent with adverse possession, and the burden lay on the respondent to prove when the permission was withdrawn. Further, continuity of possession was interrupted by the appellant's filing of Kakamega CM Misc. No. 65 of 2000 in 2000, leaving less than twelve years before the suit in 2006. The Court reversed the ELC judgment, dismissed the originating summons, and awarded the appellant costs in both courts.

Questions the Court framed

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

  1. 1.Whether the learned Judge was correct in concluding that the respondent proved all the elements of adverse possession to justify the proprietary rights of the appellant being extinguished and his title deed being cancelled and/or revoked and transferred to the respondent as the sole proprietor
  2. 2.Whether the respondent's occupation of the suit land LR No. Butsotso/Indangalasia/248 amounts to adverse possession
  3. 3.Whether the respondent has been in occupation and possession of the suit land for an uninterrupted period of 12 years and without consent of the appellant

Key legal issues

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01

Whether possession pursuant to a sale agreement, where the seller remained on the land, is adverse possession

Holding

Possession maintained after a sale agreement, where the seller claims to have rescinded the sale and refunded the deposit, is not adverse because the seller claims as of right and recognises the purchaser's ownership; filing a claim before the Land Disputes Tribunal was itself a recognition that the appellant was the true owner

Reasoning

The respondent's own case was that he cancelled the sale and reclaimed the property as of right. Filing at the Lurambi Land Disputes Tribunal acknowledged the appellant's ownership. Remaining on land under the vendor's assertion of right (or under permission) is inconsistent with the possession being adverse to the registered owner, so limitation does not run in the claimant's favour on that footing.

p. 9
02

Effect of permissive (licensed) occupation on a claim of adverse possession

Holding

Permissive possession defeats adverse possession; adverse possession can only begin once the permission is expressly or impliedly withdrawn, and the claimant must prove when that occurred

Reasoning

The appellant's uncontradicted averment was that he permitted the respondent to remain after the sale. The respondent did not controvert this. Since the respondent failed to show when permissive possession ended, the twelve-year limitation period could not be shown to have commenced. Reliance was placed on Wambugu v Njuguna and the quotation from Gabriel Mbui v Mukindia Maranya.

p. 10
03

Whether the appellant's filing of Kakamega Chief Magistrate's Court Misc. No. 65 of 2000 interrupted the continuity of adverse possession

Holding

Yes. The filing of the adoption application in 2000 was an effective interruption of possession, so the twelve-year period could not have run thereafter before the respondent filed suit in 2006

Reasoning

The respondent conceded the interruption. The Court held that judicial assertion of ownership by the registered owner is the most aggressive interruption an owner can mount. Even if the period had begun to run earlier, it was broken in 2000, and the suit filed in 2006 was within twelve years of that interruption.

p. 10
04

Scope of evidence admissible on appeal following a trial de novo and the admissibility of additional evidence

Holding

Evidence tendered before E.C. Mwita, J before the de novo restart could not be relied on; documents never produced at trial and filed in a supplementary record without leave were expunged

Reasoning

A trial de novo wipes the slate clean; all witnesses must testify afresh and be cross-examined, and transcripts or notes from prior proceedings are impermissible. Similarly, the Court lacks leave-based authority to consider additional evidence filed without leave, so the three documents in the supplementary record were expunged.

p. 7

Legal principles established

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  • A trial de novo wipes the slate clean: the new judge cannot rely on evidence, transcripts or notes from prior proceedings, and all witnesses must testify again and be cross-examined
  • A person who enters or remains on land with the permission of the title owner cannot subsequently claim adverse possession; adverse possession can only begin when that permission is expressly or impliedly withdrawn, and the claimant bears the burden of proving its revocation
  • Permissive occupation is inconsistent with adverse possession and gives the licensee no title under the limitation statute
  • The filing of proceedings by the registered owner asserting ownership interrupts the continuous possession required for adverse possession
  • Additional evidence may not be filed in the Court of Appeal without leave of the Court, and documents never produced as evidence at trial cannot be relied on in the appeal
  • On a first appeal, the appellate court is obligated to re-consider and re-evaluate the evidence and come to its own independent conclusions

Court orders

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  1. 1.Reversal and setting aside of the judgment dated 17th May, 2018 in ELC Case No. 619 of 2014
  2. 2.Judgment entered dismissing the originating summons dated 19th April, 2006 in its entirety
  3. 3.The appellant to have the costs both in the Court of Appeal and in the Environment and Land Court
  4. 4.The three documents in the supplementary record of appeal (transfer of land forms dated 7th September, 1974, certificate of official search, and copy of official search) expunged from the supplementary record of appeal

The bench

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

HO
majority
JM
majority
JN
majority
On appeal from
Environment and Land Court
ELC Case No. 619 of 2014
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court (the judgment does not cite a specific constitutional or statutory provision for jurisdiction)

Relief refused

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Declaration of title by adverse possession, cancellation of the appellant's title deed and transfer of the suit land to the respondent

The respondent failed to establish all elements of adverse possession: his initial possession was permissive, he did not prove when that permission was withdrawn, and the period of adverse possession was interrupted by the filing of Kakamega Chief Magistrate's Court Misc. No. 65 of 2000 in 2000

p. 10

Costs

The appellant shall have the costs both in this Court and at the Environment and Land Court.

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.

Consequently, we reverse and set aside the judgment dated 17th May, 2018 in ELC Case No. 619 of 2014. In its place, we enter judgment dismissing the originating summons dated 19th April, 2006 in its entirety. The appellant shall have the costs both in this Court and at the Environment and Land Court.
p. 10Final orders — reversal and dismissal
One who enters or remains on land at the invitation of or with the permission of the title owner cannot, subsequently, claim adverse possession.
p. 9Permissive possession defeats adverse possession
Permissive occupation is inconsistent with adverse possession.
p. 10Licensed occupation (quoting Gabriel Mbui v Mukindia Maranya)
The filing of that suit was as aggressive an interruption as an owner can mount to thwart the legal implications of adverse possession.
p. 10Interruption of continuous possession by legal proceedings
when a matter begins de novo (afresh), the judge cannot take into account the evidence heard before the case was restarted. The rationale for this is that a trial de novo essentially wipes the slate clean
p. 7Effect of a trial de novo
As such, these documents are additional evidence filed without the leave of this Court. These documents cannot be relied on by this Court in determining the appeal at hand.
p. 8Additional evidence without leave
Being a first appeal, we are obligated to re-consider and re- evaluate the evidence and come up with independent conclusions
p. 6Duty of a first appellate court

Issues in the judgment

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minor

The trial judgment quoted in this appeal contains an internal inconsistency in the date of the alleged sale, referring first to a sale in 1974 and later stating the plaintiff purported to sell the land in 1994

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Andafu v Akhulunya (Civil Appeal 70 of 2019) [2025] KECA 714 (KLR)", Case Analysis (2025). Civil Appeal (Kisumu) — appeal against the judgment in ELC Case No. 619 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/714/eng@2025-04-25

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