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Court of AppealPartially AllowedCivil Appeal No. 208 of 2019

Zephan Kareithi and Company Limited & another v Githae & 2 others (Civil Appeal 208 of 2019) [2025] KECA 963 (KLR)

Court of Appeal of Kenya
9 May 2025
4,216 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled a man who occupied family land under a licence could not claim it by adverse possession, and must vacate within 60 days.

What this practically means

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Executive summary

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This first appeal from the Environment and Land Court at Nyeri concerned a parcel of leasehold land, LR. No. Aguthi/Gatitu/667/101, Ruringu Town. The 1st respondent had sued on an alleged 1987 sale agreement and, in the alternative, claimed title by adverse possession. His suit was dismissed for want of prosecution, and the appellants prosecuted their counterclaim for eviction. The trial judge nonetheless found that the 1st respondent's roughly 30-year occupation constituted an overriding interest under the land registration statutes, that the appellants' right to evict was time-barred under section 7 of the Limitation of Actions Act, and dismissed the counterclaim. The Court of Appeal allowed the appeal. It held that the trial judge erred in granting a favourable judgment to a plaintiff whose suit had been dismissed, applying by parity the reasoning in Abdul Rehman v R H Gudka. On the merits, the only evidence was that the 1st respondent entered as a licensee under an informal lease; the authorities (Wambugu v Njuguna, Mbira v Gachuhi, Alfred Welimo v Mulaa Sumba Barasa) require evidence of when the licence ended and possession became adverse, which was absent. Further, if the appellants' lease had expired in 1994, the land reverted to the Government, and section 41(a)(i) bars adverse possession against Government land. The court set aside the judgment of 8th February 2019, allowed the appellants' counterclaim, ordered the 1st respondent to give vacant possession within 60 days with eviction in default, and awarded the appellants the costs of the appeal against the 1st respondent.

Questions the Court framed

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

  1. 1.Whether the 1st respondent acquired title to the suit property by adverse possession notwithstanding the dismissal of his suit for want of prosecution
  2. 2.Whether the 1st respondent's occupation as a licensee became adverse to the appellants' title, and if so when
  3. 3.Whether the learned Judge erred in allowing a favourable judgment to the 1st respondent on a suit that stood dismissed
  4. 4.Whether the appellants' counterclaim was merited

Key legal issues

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01

Ingredients of adverse possession

Holding

The claimant must prove ownership by the person against whom the claim is made; open, continuous and exclusive possession for at least 12 years; and assertion of a right inconsistent with the owner's rights. Failure to prove any one ingredient defeats the claim.

Reasoning

Drawing on Wambugu v Njuguna and Mbira v Gachuhi, the court distilled the elements of adverse possession. It stressed that merely counting years of occupation is insufficient; there must be an adverse incident in the possession present from the time the claimant takes possession, evidenced by steps or actions asserting rights inconsistent with the title of the valid owner.

p. 6
02

Permissive possession and when time begins to run

Holding

Where entry was under a licence, possession only becomes adverse upon determination of the licence; occupation with permission and adverse possession cannot co-exist.

Reasoning

The only evidence was the 2nd appellant's testimony that the 1st respondent entered as a licensee under an informal lease based on trust. Since his claim was dismissed for want of prosecution, he led no evidence of when the licence ended. Without such evidence there was no basis for finding possession adverse; mere abandonment or non-use by the owner does not establish adverse possession.

p. 7
03

Adverse possession against Government land

Holding

By section 41(a)(i) of the Limitation of Actions Act, adverse possession cannot run against Government land; if the appellants' lease expired, the land reverted to Government and the claim collapsed.

Reasoning

The 1st respondent contended the lease expired on 1st January 1994. If so, the land reverted to the Government, and section 41(a)(i) bars acquisition of title by adverse possession to Government land or land otherwise enjoyed by the Government, defeating the claim entirely.

p. 7
04

Judgment in favour of a plaintiff whose suit stands dismissed

Holding

A court cannot hand a favourable judgment to a plaintiff on a suit dismissed for want of prosecution.

Reasoning

Relying on Abdul Rehman v R H Gudka by parity of reasoning, the court held that the trial judge's finding that the 1st respondent acquired the property by adverse possession was untenable because his suit had been dismissed; no declaration may issue in a plaintiff's favour absent a counterclaim or a live suit.

p. 7

Legal principles established

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  • A declaration ought not to be made in favour of a plaintiff where the suit has been dismissed, unless it is merely the negative of a declaration claimed in the defence and counterclaim
  • A party may not, without leave, support the decision of the superior court on any ground not relied on by that court except by notice under rule 96
  • Where a claimant's entry onto land was as a licensee, there must be evidence of the point at which the licence was terminated or lapsed and possession became adverse

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment in Nyeri ELC Case No. 38 of 2014 delivered on 8th February 2019 set aside and substituted with judgment in favour of the appellants
  3. 3.Appellants' counterclaim allowed
  4. 4.1st respondent to give vacant possession of LR. No. Aguthi/Gatitu/667/101, Ruringu Town within 60 days, failing which the appellants may evict him
  5. 5.Costs of the appeal awarded to the appellants, borne by the 1st respondent

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court, Nyeri
Nyeri ELC Case No. 38 of 2014
Jurisdiction invoked
First appeal under the Court of Appeal Rules (appellate jurisdiction over the Environment and Land Court)

Relief refused

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1st respondent's claim for registration as proprietor by adverse possession and specific performance

Claim dismissed for want of prosecution leaving adverse possession claim unsupported; possession was permissive and adverse possession cannot run against Government land once lease expired

p. 7

Costs

The costs of this appeal are awarded to the appellants to be borne by the 1st 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.

From the above decisions, the ingredients of adverse possession are: ownership of the land by the person against whom the claim is made; open, continuous and exclusive possession of the land by the claimant for at least 12 years; assertion of right by the dispossessor which must be inconsistent with the rights of the owner.
p. 6Elements of adverse possession
The occupation can only be either with permission or adverse; the two concepts cannot co-exist.
p. 6Permissive vs adverse possession (quoting Wambugu v Njuguna)
We set aside the judgement in Nyeri ELC Case No. 38 of 2014 delivered on 8th February 2019 and substitute therefor a judgement in favour of the appellants.
p. 8Final orders - reversal of judgment below
We allow the appellants' counterclaim and direct that the 1st respondent gives vacant possession of the parcel of land known as LR. No. Aguthi/Gatitu/667/101, Ruringu Town, to the appellants within 60 days from the date of this judgement and in default, the appellants be at liberty to evict the 1st respondent.
p. 8Final orders - possession and eviction

Issues in the judgment

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minor

The pleading paragraph contains an internally contradictory date for the lease term: 'a term of 33 years from 1st January 1961 July 1994' - two alternative dates appear in the same passage

minor

The trial court's judgment is described as dismissing the 1st respondent's case for want of prosecution yet granting him the property by adverse possession, an internal contradiction the appellate court itself noted

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, "Zephan Kareithi and Company Limited & another v Githae & 2 others (Civil Appeal 208 of 2019) [2025] KECA 963 (KLR)", Case Analysis (2025). Civil Appeal No. 208 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/963/eng@2025-05-09

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