Mbaruk v Gaddim & another (Civil Appeal E122 of 2022) [2025] KECA 1023 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if you occupy land with the owner's permission, you can never claim ownership through adverse possession.
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 wrong in finding that the Appellant had not proved his claim for adverse possession of the suit property
Key legal issues
#Whether the Appellant proved adverse possession of the suit property
No. The Appellant was a licensee permitted by the Respondents' deceased uncle to cultivate the land; his possession was permissive, not adverse, and he did not reside on the property.
The Court re-assessed the evidence as a first appeal. Defence witnesses, including the local Chief and DW4 who built the structures in the Appellant's photographs, established that the Appellant lived in Mzambarauni and merely cultivated a portion with permission, sharing produce with the caretaker uncle. Permissive occupation negates the adversity required by Sections 7, 13, 17 and 38 of the Limitation of Actions Act. The trial Judge's dismissal was affirmed.
Whether the activities of other permitted cultivators (e.g. DW4's poultry farming) interrupted the Appellant's alleged possession
The point became moot because possession was never adverse; the Appellant's own photographs depicted structures built by DW4, not him.
The Court found that the photographs did not show permanency or the alleged period of occupation, and DW4's evidence established that he, not the Appellant, built the structures claimed. The Appellant therefore never had the exclusive, open and notorious possession that could be interrupted; his cultivation was periodic and permissive throughout.
Legal principles established
#- A licensee cannot convert permissive occupation into a claim for adverse possession; adverse possession cannot arise where occupation is under a licence.
- On a first appeal, the Court of Appeal must analyse and re-assess the evidence and reach its own independent conclusions, though it has neither seen nor heard the witnesses.
- The claimant must prove the date of entry, the nature of possession, the owner's knowledge, the length of continued possession, and that possession was open and undisturbed for the requisite 12 years - nec vi, nec clam, nec precario.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The Appellant shall bear the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court (trial Judge referred to as High Court first appeal duty applies)
- Jurisdiction invoked
- First appeal to the Court of Appeal (appeal as of right from the High Court/EandL Court; duty to re-assess evidence per Selle v Associated Motor Boat Co. Ltd)
Relief refused
#Declaration of title by adverse possession to Plot No. Kilifi/Mtwapa/229 and registration as proprietor
The Appellant was a licensee whose possession was permissive, not adverse; he failed to prove exclusive, continuous and uninterrupted adverse possession for 12 years
Extinguishment of the Respondents' title under Section 17 of the Limitation of Actions Act and bar of eviction under Section 8
Follows from failure of the adverse possession claim; the appeal was dismissed in its entirety
Costs
The Appellant shall bear the costs of the appeal.
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 sum, the appeal has no merit and is hereby dismissed in its entirety. The Appellant shall bear the costs of the appeal. It is so Ordered.
Having been authorized to cultivate on the suit property meant that the Appellant was at all times a licencee. This being the case, he cannot now turn around and convert the permission he was granted to be on the land into a claim for adverse possession.
The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity, and in extent to show that possession is adverse to the title owner.
the critical period for the determination whether possession was adverse is 12 years and the burden is on the person claiming to be entitled to the land by adverse possession to prove, not only the period but also that his possession was without the true owner's permission
Issues in the judgment
#The judgment inconsistently refers to the Appellant's supporting witnesses: the record names PW2 Ramadhan Said, but the analysis refers to 'the evidence of PW3 and PW6' although only PW2 is described as testifying.
DW5 is named inconsistently as 'Mohammed Said' when testifying and as 'Mohamed Mahfudh Said' in the analysis.
The Respondents' deceased uncle is named 'Mbarak Ali Gadim' and later 'Mbarak Gadim', and DW3 is described both as 'Zaki Ali' and 'Zaki Ali Mohamed'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaruk v Gaddim & another (Civil Appeal E122 of 2022) [2025] KECA 1023 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1023/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.