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Court of AppealPartially AllowedCivil Appeal at Mombasa (appeal against ELC No. 108 of 2021 [O.S.], Malindi)

Mwagandi v Lewa (Civil Appeal E004 of 2022) [2025] KECA 1036 (KLR)

Court of Appeal of Kenya
5 June 2025
AMA. K. MurgorPNP. NyamweyaGOG. V. Odunga
4,684 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed an adverse possession claim because the land occupier couldn't prove twelve years of continuous, exclusive occupation with credible evidence.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Murgor, Nyamweya and Odunga JJA) dismissed an appeal against the Environment and Land Court at Malindi (Olola J), which had rejected an adverse possession claim over Tezo/Roka/374. The Appellant claimed occupation since 1992 and sought a declaration of ownership and excision of the occupied portion from the Respondent's title. The appeal collapsed on proof: the key 2007 letter from the District Land Adjudication and Settlement Officer was held inadmissible as proof of its contents because its maker was not called and no statutory exception under section 35 of the Evidence Act was established, admission as an exhibit not amounting to proof. Undated, unauthenticated photographs, being electronic records lacking a section 106Bpara 4 certificate, were of limited probative value on the duration of occupation. The Court affirmed that the onus lies on the adverse possessor to prove exclusive possession for twelve years without the owner's consent, and held that the Respondent's 1995 charge of the land to Kenya Commercial Bank constituted acts of control rebutting discontinuance of his possession. However, the Court partially corrected the decision below: it set aside the trial Judge's finding that the Appellant was required to lodge an objection under section 26 of the Land Adjudication Act, holding that adjudication processes were irrelevant to an adverse possession claim, which defeats registered title however acquired. The appeal was otherwise dismissed with each party bearing their own costs of the appeal. The judgment binds lower courts on the distinction between admission and proof of documents, the authentication of photographs, and the irrelevance of adjudication objections to adverse possession claims.

Questions the Court framed

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

  1. 1.Whether the totality of the evidence adduced in the trial Court supported a finding of adverse possession by the Appellant
  2. 2.Whether the letter dated 28th February 2007 was proved and admissible in evidence
  3. 3.Whether the charging of the suit property to Kenya Commercial Bank Ltd defeated the claim of adverse possession
  4. 4.Whether failure to lodge an objection under section 26 of the Land Adjudication Act precluded a claim of adverse possession

Key legal issues

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01

Proof and admissibility of the 2007 letter

Holding

The letter was inadmissible as proof of its contents because its maker was not called and no basis for the exception was laid

Reasoning

Under section 35 of the Evidence Act both conditions - personal knowledge of the maker and the maker being called as witness - are conjunctive and cumulative. The Appellant did not call the maker nor lay any basis for the statutory exceptions, so the trial Court could not assess the letter's probative value. The trial Judge did not err in holding the letter inadmissible.

p. 7
02

Evidentiary value of photographs

Holding

Unauthenticated, undated photographs have limited probative value on duration and continuity of occupation

Reasoning

Photographs are electronic records requiring a section 106Bpara 4 certificate, which was not produced. The photographs were undated and not shown to relate to the suit property. As static and inert representations, they identify a person, item or place only at the moment taken and cannot prove the twelve years of continuous occupation required for adverse possession.

p. 7
03

Effect of charging the suit property to a bank

Holding

Charging the land met the threshold for acts of control rebutting discontinuance of the owner's possession

Reasoning

A title owner may rebut adverse possession by evidence of retention of physical possession, intermittent acts of control, or positive steps to recover possession. The Court found that the Respondent's 1995 charge to Kenya Commercial Bank constituted such acts of control, so the trial Judge did not err on the legal effect of the charge.

p. 8
04

Relevance of failure to object under section 26 of the Land Adjudication Act

Holding

The trial Judge erred; adjudication objections are irrelevant to an adverse possession claim, which defeats registered title however acquired

Reasoning

The issue in the trial Court was whether the Appellant proved adverse possession despite the allocation of the land to the Respondent. The Land Adjudication Act processes were irrelevant to that question, since adverse possession defeats a registered title however acquired and is maintainable notwithstanding a certificate of title.

p. 8

Legal principles established

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  • A document admitted in evidence as an exhibit is not thereby proved; the maker must be called as a witness (or a statutory exception established) for it to have probative value
  • A claim of adverse possession defeats a registered title however acquired, and is maintainable notwithstanding that a certificate of title has been issued
  • The onus remains on the person claiming adverse possession to prove complete and exclusive physical possession and control for the requisite twelve years without the consent of the true owner
  • Photographs are electronic records requiring a certificate under section 106Bpara 4 of the Evidence Act, and even when authenticated have limited probative value on duration of occupation

Court orders

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  1. 1.Setting aside the finding of the trial Court that the Appellant was required to raise an objection under section 26 of the Land Adjudication Act
  2. 2.Dismissal of the appeal
  3. 3.Each party shall meet their own costs of the appeal

The bench

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

AM
majority
PN
majority
GO
majority
On appeal from
Environment and Land Court at Malindi
ELC No. 108 of 2021 [O.S.]
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over an appeal from the Environment and Land Court

Relief refused

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The appeal (declaration of adverse possession and excision/registration orders)

The Appellant failed to prove continuous, exclusive occupation for twelve years with credible, proved evidence

p. 7

Costs

Each party shall meet their costs of the appeal

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.

Save for setting aside the fnding of the trial Court that the Appellant was required to raise an objection under section 26 of the Land Adjudication Act after he learnt that the Respondent had been allocated the suit property when claiming for adverse possession, we fnd no merit in this appeal, which is hereby dismissed
Final orders - partial setting aside and dismissal of appeal
We also order that each party shall meet their costs of the appeal in light of our fndings
p. 8Costs order
mere admission of a document in evidence as an exhibit should not be confused with proof of the document
p. 5Distinction between admission and proof of documents
The two conditions are conjunctive and cumulative, and both must be satisfed to confrm the veracity and factual basis of documentary evidence
p. 6Section 35 Evidence Act conditions for probative value
the onus always remains on the person claiming adverse possession to prove that he or she has complete and exclusive physical possession and control over the subject land for the requisite period of twelve years
p. 7Burden of proof in adverse possession
the efiect of a claim of adverse possession is to defeat a registered title however acquired
p. 8Adverse possession versus registered title

Issues in the judgment

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minor

The judgment refers to the appeal as a first appellate court duty while quoting decision years inconsistently (Jabane v Olenja cited as [1968] KLR 661), which may be a citation error in the original

minor

The respondent's name is spelled inconsistently in the judgment ('Lewa' and 'Mtana'/'Matana')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Mwagandi v Lewa (Civil Appeal E004 of 2022) [2025] KECA 1036 (KLR)", Case Analysis (2025). Civil Appeal at Mombasa (appeal against ELC No. 108 of 2021 [O.S.], Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1036/eng@2025-06-05

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