Baya & 2 others v Nazerali & 6 others (Civil Appeal E106 of 2022) [2025] KECA 1081 (KLR)
The bottom line
#The Court of Appeal dismissed a Kenyan land claim because the occupiers could not prove 12 years of continuous, open occupation as of right, not with the owner's permission.
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 appellants proved adverse possession of the suit properties for the requisite period of 12 years
- 2.Whether the trial Judge erred in failing to find that the 1st and 2nd respondents' title had been extinguished before transfer to the 3rd to 5th respondents
- 3.Whether the failure to produce the sale agreement under which the 3rd to 5th respondents purchased the properties vitiated their title
Key legal issues
#Whether adverse possession was proved
Not proved; the appellants failed to demonstrate continuous occupation for 12 years and their evidence suggested they were licensees of an alleged Rwandese purchaser.
The 1st appellant testified she moved onto the properties in 1991, but affidavits on record indicated occupation from 2005 to 2009, so 12 years had not elapsed by the 2015 suit. She could not produce her claimed business licence or identify which portion she occupied. Witness statements of co-appellants were carbon copies and their makers did not testify. The court affirmed the trial Judge's finding that possession was not continuous or adverse.
Whether non-production of the sale agreement between the 1st and 2nd respondents and the 3rd to 5th respondents was fatal to the respondents' title
The complaint had no merit because the validity of the respondents' acquisition was not an issue before the trial court.
The appellants argued on appeal that no sale agreement was produced in breach of Section 3(3) of the Law of Contract Act. The court held that the respondents' title was acknowledged and how they acquired it was not a matter pleaded or litigated below, so the complaint failed. The respondents' title was also said to be regular under Sections 24 and 26 of the Land Registration Act.
Legal principles established
#- The burden of proving adverse possession lies squarely on the claimant, who must establish when and under what circumstances occupation began, and prove continuous, open possession as of right for 12 years.
- Adverse possession requires possession that is neither by force, stealth nor under the licence of the owner, and it must be adequate in continuity, publicity and extent.
Court orders
#- 1.Appeal as against the 1st, 2nd and 3rd respondents marked as withdrawn
- 2.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court at Mombasa
- Originating Summons dated 22nd January 2015
- Jurisdiction invoked
- Appellate jurisdiction under the Court of Appeal Rules (Rule 31(1)(a)); first appeal from the Environment and Land Court
Relief refused
#Registration of the appellants as proprietors of the suit properties by adverse possession
The appellants did not adduce clear and unequivocal evidence of continuous possession for 12 years; their evidence suggested they were licensees
Impeachment of the 3rd to 5th respondents' title for failure to produce the sale agreement
The manner in which the 3rd to 5th respondents acquired title was not an issue before the trial court
Costs
The appeal was dismissed with costs; the trial court had also dismissed the suit with costs.
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.
Based on the material before the trial court, there was no clear and unequivocal evidence of the appellants# possession of the properties for a period of 12 years. The appellants did not therefore establish their claim for adverse possession.
The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner.
The onus is on the person claiming adverse possession to prove, in the words of Kneller J. (as he then was) in Kimani Ruchine v Swift, Rutherford & Co. Ltd [1980] KLR 10
The appeal fails and is hereby dismissed with costs.
Issues in the judgment
#The trial court's quoted judgment refers to occupation 'for over 20 years' while the appellate analysis and authorities turn on a 12-year limitation period; the judgment does not reconcile the 20-year pleading with the 12-year statutory period.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baya & 2 others v Nazerali & 6 others (Civil Appeal E106 of 2022) [2025] KECA 1081 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1081/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.