Shariff v Kanana & another (Civil Appeal 18A of 2020) [2025] KECA 1255 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that permission to occupy land blocks an adverse possession claim, and a registered owner's title stands unless proved fraudulently obtained.
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 appellant proved his claim of being the bona fide registered owner of the suit property
- 2.Whether the appellant's right as a registered proprietor was extinguished by the respondents on account of adverse possession as claimed by the respondents by way of a counterclaim
Key legal issues
#Indefeasibility of the appellant's registered title under Section 26 of the Land Act
The appellant's certificate of lease was unchallenged and conferred absolute and indefeasible ownership, subject only to fraud, misrepresentation, or illegal/unprocedural acquisition, none of which was alleged
The court held that the appellant produced his certificate of lease and no one claimed it was fake or illegally obtained. Section 26 of the Land Act makes a certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The respondents did not impugn the title on any such ground; they relied solely on adverse possession.
Whether the respondents proved adverse possession by way of counterclaim
The respondents failed to prove adverse possession; their entry was permissive and they did not demonstrate hostile, open, continuous and exclusive occupation for twelve years against the appellant's title
The court found the respondents' assertion of occupation since 1982 unsupported by any concrete evidence such as cess receipts, utility bills or neighbours' testimony. Their own claim was that they occupied an adjacent plot and were permitted to take care of the appellant's land in 1997. Entry with the owner's permission is not adverse. The claimed 7-acre occupation also exceeded the 5-acre title, and the self-help group and 50 families were strangers to the suit who never joined to prove their claims.
Adverse possession against a public body and computation of the limitation period
Adverse possession cannot be claimed against the County Council of Isiolo; the period had to be computed only from when the appellant became registered proprietor
The court held that since the suit property previously belonged to the County Council of Isiolo, the respondents could not ground adverse possession against it. The limitation period under Sections 7 and 13 of the Limitation of Actions Act could only run from the time the appellant became the registered proprietor. Any occupation before that time could not be adverse to the appellant's title, which materially undermined the respondents' 35-year occupation narrative.
Failure to join necessary parties claiming occupation
The self-help group and the 50 families said to occupy the land were strangers to the suit and their unproven claims could not support the respondents' counterclaim
The court noted the respondents claimed that over 50 families occupied the property through the Mla Jasho Self-Help Group, but only the two respondents were sued and filed the counterclaim. The group and families never joined the proceedings or placed their claims before the court. The court confined itself to the parties before it, meaning the respondents could not rely on the occupation of persons who were not litigants to establish exclusive possession.
First appellate duty to re-evaluate evidence
As a first appeal, the Court must analyse, evaluate and re-assess the evidence and reach an independent conclusion, though making due allowance for not having seen or heard the witnesses
Relying on Arthi Highway Developers Limited v West End Butchery Limited and Selle v Associated Motor Boat Co., the court restated the settled principles governing a first appeal: the appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind it did not see or hear the witnesses, and is not bound by the trial judge's findings of fact where they failed to account for material circumstances or probabilities.
Legal principles established
#- A claim of adverse possession cannot run against a county council/public body and must be proved from the time the claimant's adverse occupation began against the registered proprietor
- The burden of proving a counterclaim rests on the party filing it, and absence of a defence to the counterclaim does not entitle the counterclaimant to judgment automatically
- Entry onto land with the owner's permission cannot found a claim of adverse possession unless the permission is terminated and the occupier remains for twelve years thereafter
Court orders
#- 1.Setting aside the trial court's judgment
- 2.Entering judgment in favour of the appellant
- 3.Dismissing the respondents' counterclaim
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (trial court)
- Jurisdiction invoked
- First appeal to the Court of Appeal from the trial court's judgment
Relief refused
#Respondents' declaration of ownership by adverse possession
Respondents failed to prove adverse possession - their entry was with the appellant's permission and they did not prove 12 years of hostile, open and exclusive occupation
Costs
Each party will bear their own 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.
It is therefore quite apparent that the respondents failed to prove that the appellant ever lost his rights on the suit property either by being dispossessed or by having discontinued possession of the suit property for a continuous statutory period of twelve years to entitle them to the title to the suit property by way of adverse possession. Ultimately, we set aside the trial court's judgment. Enter judgment in favour of the appellant and dismiss the counterclaim.
So that a claim of adverse possession would not succeed if the entry to the land was with the permission of the owner and remains that way throughout, or before the permission is terminated or if before the expiry of the period, the owner of the land takes steps to assert his title to the land.
For starters the claim of adverse possession cannot be made against the County Council of Isiolo. The adverse possession needed to be proved from the time the appellant became the registered proprietor of the same.
Even though the appellant did not file a defence to the counterclaim, this did not mean that the respondents were to receive the orders automatically as sought. The burden of proof was not on the appellant but the respondents to prove their counterclaim.
Each party will bear their own costs.
Issues in the judgment
#The coram block is irregularly formatted and the third judge's name appears as 'ALI-ARONI' with the first two names split from their titles ('JAMILA MOHAMMED / JUDGE OF APPEAL' and 'J. LESIIT / JUDGE OF APPEAL ALI-ARONI / JUDGE OF APPEAL'); the third judge's given name or initials are not clearly printed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shariff v Kanana & another (Civil Appeal 18A of 2020) [2025] KECA 1255 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1255/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.