Karitu v Mwihike Farmers Company Limited & 3 others (Civil Appeal E397 of 2024) [2025] KECA 1127 (KLR)
The bottom line
#The Court of Appeal confirmed that a buyer who paid in full and occupied land openly for over 12 years owns it, even if the seller's family later gets registered as owners.
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 trial court erred by finding that the 1st respondent had sufficiently proved its claim of adverse possession with respect to the suit land
Key legal issues
#When time for adverse possession begins to run where entry was initially with permission under a sale agreement
Time began to run on 14th September 1998 when the vendor acknowledged full payment and granted full possession; permission ceased on completion of payment
The Court applied the principle in Public Trustee v Wanduru and Gabriel Mbui v Mukindia Maranya that a purchaser in possession after paying the purchase price is one in whose favour limitation runs. The 1st respondent entered under a 1998 sale agreement, paid Kshs.600,000/- in full, took possession, and developed 40 sub-plots. Possession thereafter ceased to be permissive and became adverse, so the 12-year period had elapsed by 2014 registration of the appellant.
Whether the statutory period of adverse possession was complete by 2014 when the appellant and his father were registered as proprietors
Yes - the 1st respondent's title by adverse possession had already crystallised by 2014 after more than twelve years of open, continuous and exclusive occupation
The Court found undisputed evidence of occupation from 1998 to suit filing in 2016, corroborated by the Deputy Registrar's site visit report and photographs showing permanent structures, fencing, roads, a school, water and electricity, crops and livestock, demonstrating an intention to dispossess. Consequently, subsequent registration of the appellant as tenant in common could not defeat a title already accrued by adverse possession.
Whether the appellant's alleged attempts to evict interrupted the running of time
No - without legal proceedings or an effective entry on the land, alleged eviction attempts did not stop time
Relying on Mwangi Githu v Livingstone Ndeete, the Court held that time ceases to run only when the owner asserts his right by legal proceedings or effective entry, or when the adverse possessor admits his right. The appellant produced no evidence of any effective entry on the land, and cross-examination showed he took no tangible steps over more than 18 years. His failure to initiate legal proceedings meant the claim was not defeated.
Whether adverse possession could be claimed over only the deceased co-owner's four-acre share where land was held under tenancy in common
Yes - the claim concerned only the four acres sold by the deceased father holding 65%, not the appellant's 2.17 acres, and the sale agreement created a binding relationship
The certificate of title showed the appellant and his father as tenants in common in 35%/65% shares. The handwritten agreement of 27th February 1998 and typed agreement of 19th March 1998 identified the subject as four acres out of the 6.175-acre parcel, with parties, consideration and completion terms clearly set out and executed. The claim therefore did not touch the appellant's share, and the deceased, having acknowledged full payment, relinquished his interest.
Legal principles established
#- On a first appeal, the Court must re-evaluate, re-assess and re-analyse the evidence and reach its own conclusions
- A claimant for adverse possession must prove the adverse character of occupation as a fact - hostile, open, actual, uninterrupted, notorious, exclusive and continuous for 12 years - and mere exclusive possession does not suffice
- Where a purchaser takes possession under a sale agreement, time for adverse possession begins to run on full payment of the purchase price; where payment is by installments, it runs from the last installment
- Time ceases to run under the Limitation of Actions Act only when the owner takes legal proceedings or makes an effective entry into the land; mere attempted evictions or notice do not stop time
- Adverse possession may run against land registered to tenants in common as regards the share of the co-owner who sold it; where a co-owner sold his defined portion and acknowledged full payment, his interest was relinquished
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the 1st and 4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (trial court)
- Originating Summons dated 26th September 2016 (amended 28th February 2019 and re-amended 21st October 2021)
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's decision (not stated by specific provision in the judgment)
Relief refused
#The appellant's prayer to set aside the trial court's judgment and decree
The appellant failed to show any error in the trial court's finding that title by adverse possession had crystallised by 2014; no effective entry or legal proceedings interrupted the running of time
Costs
The appeal is dismissed with costs to the 1st and 4th respondents
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.
This appeal is without merit. We hereby dismiss it with costs to the 1st and 4th respondents.
In the circumstances, we fully agree with the learned judge's finding that the respondents clearly established title to the suit land by way of adverse possession. We find no grounds to fault or set aside the decision of the learned judge.
by 2014 when a certificate of title was issued in favor of the appellant and his deceased father, the 1st respondent's' title under the doctrine of adverse possession had already crystallized, having been in open, continuous, and exclusive occupation of the four acres for more than twelve years from 1998.
The above decisions clearly establish that an applicant must pay the entire purchase price before the statutory period for adverse possession begins to run.
Assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land; see Cheshire's Modern Law of Real Property, 11th edition at p 894.
Issues in the judgment
#The judgment refers inconsistently to the 1998 acknowledgment of full payment, describing it variously as an addendum dated 19th March 1998, 14th September 1998, and 27th February 1998 for possession
The judgment states the Court's holding in Bakari Sheban was that 'the burden was on the appellants' yet frames it as this Court's current holding; also the captioned citation Public Trustees v Wanduru Ndegwa (1994) eKLR is given by the 4th respondents while the Court quotes Public Trustee v Wanduru (1984) KLR 314
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chumba v Murei (Enviromental and Land Originating Summons E010 of 2023) [2026] KEELC 3561 (KLR)[2026] KEELC 3561 (KLR)9 Jun 2026
- Baya & 3 others (Suing on their own behalf and as personal representatives of the Estate of the Late Estate of the Late Katana Gunga Baya - Deceased) v Gunga (Civil Appeal E027 of 2023) [2026] KECA 899 (KLR)[2026] KECA 899 (KLR)15 May 2026followed
Cite this brief
#Cite this brief
Caselaw, "Karitu v Mwihike Farmers Company Limited & 3 others (Civil Appeal E397 of 2024) [2025] KECA 1127 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1127/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.