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Court of AppealDismissedCivil Appeal No E121 of 2021· [2025] KECA 1507 (KLR)

Kosgei v Mugun (Civil Appeal E121 of 2021) [2025] KECA 1507 (KLR)

Court of Appeal
19 September 2025
3,091 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that someone claiming land ownership through long occupation can raise it as a counterclaim within an existing lawsuit.

What this practically means

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Executive summary

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This Court of Appeal judgment at Nakuru (Mativo, Gachoka and Korir, JJ.A) arose from a ruling by Mwanyale, J. delivered on 17th March 2022 dismissing a preliminary objection dated 27th January 2016 raised by the appellant against the respondent's counterclaim for adverse possession over parcel Nandi/Ndulele/308. The appellant argued that a claim for adverse possession could only be instituted by originating summons under Order 37 Rule 7 of the Civil Procedure Rules and was barred by the Limitation of Actions Act. The Court condensed the eighteen grounds of appeal into two questions but determined that the only issue was whether the preliminary objection was merited. Relying on its own binding precedents, notably Gulam Miriam Noordin v Julius Charo Karisa, Teresa Wachuka Gachira v Joseph Mwangi Gachira and County Government of Kilifi v Mombasa Cement Limited, and on the Supreme Court of India's decision in Sh. Jag Mohan Chawla, the Court held that Order 37 Rule 7 governs fresh and independent suits, while Order 7 Rule 3 permits a defendant in a pending suit to assert adverse possession by counterclaim. The Court emphasized that requiring a separate originating summons would be wasteful of judicial resources and would elevate procedure over substantive justice. The limitation and trespass arguments were reserved for the pending trial before the Environment and Land Court. The appeal was dismissed with costs to the respondent. This holding binds all subordinate courts and the High Court, and the Environment and Land Court, on the permissible procedural routes for adverse possession claims.

Key legal issues

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01

Whether adverse possession can be claimed by counterclaim or defence

Holding

Yes; Order 37 Rule 7 does not preclude a counterclaim, which Order 7 Rule 3 expressly permits as a cross-suit.

Reasoning

The Court relied on its precedents including Gulam Miriam Noordin v Julius Charo Karisa and County Government of Kilifi v Mombasa Cement Ltd, holding that Order 7 Rule 3 allows a defendant to raise any right or claim by counterclaim, including adverse possession. Forcing the defendant to file a separate originating summons would be untidy, wasteful of judicial resources and would pay homage to procedure at the expense of substantive justice.

p. 5
02

Whether the limitation argument rendered the counterclaim incompetent

Holding

The Court declined to determine it; the issues were not part of the preliminary objection and belong in the pending suit before the Environment and Land Court.

Reasoning

The appeal arose from a preliminary objection limited to the competency of the counterclaim. The limitation/trespass arguments raised by the appellant were outside the scope of that objection and were reserved for trial before the Environment and Land Court.

p. 6

Legal principles established

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  • A defendant may assert a claim of adverse possession by way of a defence or counterclaim; the originating-summons procedure under Order 37 Rule 7 applies only to fresh and independent suits.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The respondent shall have the costs of the appeal from the appellant

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Civil Procedure RulesOrder 7 Rule 3
  • Limitation of Actions Actsections 37 and 38
  • Civil Procedure Actsections 1A and 1B
  • Environment and Land Court ActNot specified
  • Court of Appeal Rulesrule 31(1)(a)

Cases cited (15)

  • Njenga Karume vs. The Speaker of the National Assembly
    [1992] eKLR
  • Seventh-Day Adventist Church East Africa Limited vs. Joseph Wachira alias Joe T/A Mugumoini Garage & 7 Others
    [2005] eKLR
  • Michael Kithimji Kimotho vs. Nicholas Muratha Mugo
    [1995] eKLR
  • Barclays Bank of Kenya Limited vs. Elizabeth Agidza & 2 Others
    [2012] eKLR
  • Mariba vs. Mariba
    Civil Appeal No. 188 of 2002
  • Wabala vs. Okumu
    [1997] LLR 609 (CAK)
  • Gulam Mariam Noordin vs. Julius Charo Karisa
    Civil Appeal No. 26 of 2015
  • Bayete Co. Ltd vs. Kosgey
    [1998] LLR 813
  • Abok James Odera T/A A.J. Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates
    [2013] KECA 208 (KLR)
  • Gulam Miriam Noordin vs. Julius Charo Karisa
    [2015] KECA 188 (KLR)
  • Njuguna Ndatho vs. Masai Itumo & 2 others
    Civil Appeal No. 231 of 1999
  • Teresa Wachuka Gachira vs. Joseph Mwangi Gachira
    [2009] KECA 445 (KLR)
  • E. vs. E.
    [1970] EA 604
  • Sh. Jag Mohan Chawla & Another vs. Dera Radha Swami Satsang & Others
    [1996] 2 SCJ 502
  • County Government of Kilifi vs. Mombasa Cement Limited
    [2017] KECA 633 (KLR)
On appeal from
High Court
Jurisdiction invoked
First appeal under rule 31(1)(a) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kosgei v Mugun (Civil Appeal E121 of 2021) [2025] KECA 1507 (KLR)", Case Analysis (2025). Civil Appeal No E121 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1507/eng@2025-09-19

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