Ikunyua v Ikunyua & 3 others (Civil Appeal 73 of 2018) [2025] KECA 1546 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a son's land claim, confirming that living on family land with permission never becomes ownership, no matter how long.
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 appeal as filed by the appellant was incompetent for omitting documents from the record of appeal under Rule 87(1)(c) of the Court of Appeal Rules, 2010
- 2.Whether the 3rd and 4th respondents were properly enjoined as parties to the suit filed by the appellant before the ELC
- 3.Whether the learned Judge erred in setting aside the judgment delivered in High Court Civil Case No. 135 of 2009
- 4.Whether the appellant sufficiently proved his claim of adverse possession
Key legal issues
#Competence of the record of appeal under Rule 87(1)(c)
Although the omission of the supporting and replying affidavits and annexures rendered the record incomplete, the respondents raised the objection belatedly at the hearing; the Court exercised its overriding jurisdiction and determined the appeal on the merits.
The Court accepted that affidavits form part of the pleadings that are mandatory under Rule 87(1)(c) (now Rule 89 of the 2022 Rules), citing Bwana Mohamed Bwana on the consequences of an incompetent appeal. However, it noted the appellant was unrepresented, and the respondents, who could have filed a supplementary record, waited until the hearing. Both parties have a duty to assist the Court arrive at a decision on the merits, so the objection was overborne under Sections 3A and 3B of the Appellate Jurisdiction Act.
Joinder of the 3rd and 4th respondents
The trial court erred in holding that the 3rd and 4th respondents were not properly enjoined; the record showed an application before Makau J. on 22nd October 2012 and the 4th respondent testified as a defendant, so they were properly parties.
The impugned judgment held the registered proprietors were not properly joined, rendering the appellant's case a non-starter. On re-evaluation, the Court found the appellant had applied to enjoin them before Makau J., the set-aside initial judgment listed four respondents, and the 4th respondent gave evidence on behalf of the defence identifying herself as a defendant. Nothing on record showed they were improperly enjoined.
Challenge to the setting aside of the exparte judgment of 8th October 2014
This ground failed because the appeal was against the ELC judgment, not the ruling setting aside the exparte judgment, which should have been appealed directly.
P. M. Njoroge J. set aside his own exparte judgment by a ruling dated 8th December 2014 on the basis that the respondents had not been served. The appellant did not attach the ruling and did not appeal against it. An appeal lies against the specific decision aggrieving a party; the present appeal could not substitute for an appeal against the set-aside ruling.
Proof of adverse possession
The appellant's possession was permissive, being occupation granted by his father during the father's lifetime; it was not hostile, and the claim of ownership had been determined in Succession Cause No. 339 of 2005 and was res judicata.
Applying Samuel Kihamba v Mary Mbaisi and Samuel Miki Waweru v Jane Njeri Richu, the Court held that occupation with the owner's permission confers no adverse possession rights. The appellant entered with his father's consent and occupied even during the deceased's lifetime. Further, the appellant was an objector in the probate proceedings in which the suit property was bequeathed to the 3rd and 4th respondents, did not appeal that judgment, and the ownership question therefore stood res judicata before the ELC.
Res judicata by reason of the succession proceedings
The issues of ownership raised before the ELC were dealt with in High Court Succession Cause No. 339 of 2005, in which the appellant participated as objector and did not appeal, and therefore stood res judicata.
The probate court, in a judgment delivered on 30th January 2007, bequeathed the suit property to the 3rd and 4th respondents, who were subsequently registered. The appellant, an objector in those proceedings, did not lodge an appeal against that judgment. The Court agreed with the learned Judge that the ownership issue was thus res judicata before the ELC.
Legal principles established
#- A party claiming adverse possession must prove open occupation without force, secrecy, licence or permission of the owner, with intention to have the land, and actual dispossession of the owner for the statutory period; mere possession for twelve years is insufficient.
- Occupation of land with the consent, permission or licence of the registered owner does not accrue any right of adverse possession.
- Possession does not become adverse before the end of the period for which permission to occupy has been given.
- Where an objection to the completeness of a record of appeal is raised for the first time at the hearing, and both parties bear a duty to assist the Court determine the dispute on its merits, the Court may, in the exercise of its overriding powers under Sections 3A and 3B of the Appellate Jurisdiction Act, proceed to consider the merits notwithstanding the omission.
- A party aggrieved by a ruling setting aside an exparte judgment must appeal against that ruling; an appeal against a subsequent judgment does not encompass a challenge to the earlier ruling.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Originating Summons dated 7th October, 2009 (LR No. Ntima/Igoki/5219)
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (Sections 3A and 3B invoked), first appeal from the Environment and Land Court
Relief refused
#Allowance of the appeal and registration of the appellant as absolute owner of LR No. Ntima/Igoki/5219 by adverse possession
Appellant occupied the land with the permission of the deceased; possession was not hostile; the claim of ownership was res judicata having been determined in Succession Cause No. 339 of 2005; the appellant failed to discharge the legal and evidential burden of proving adverse possession
Ground of appeal challenging the setting aside of the exparte judgment of P. M. Njoroge J. in Civil Suit No. 135 of 2009
The appeal before the Court was against the ELC judgment of 22nd November 2017, not against the ruling that set aside the exparte judgment, which the appellant should have appealed directly
Costs
The appeal was dismissed with costs to the 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.
We find no merit in this appeal. We order that it be and is hereby dismissed with costs.
If one occupies land by permission and consent or license of the registered owner, such a person does not accrue any right of adverse possession on the said owner.
a party claiming adverse possession has to prove that they have occupied the land in question openly without license or permission of the land owner, with the intention to have the land, and that they have dispossessed the registered owner of the suit property for the statutory period
The onus of proving these elements remains on the party claiming proprietary rights by virtue of adverse possession.
These issues therefore stood res judicata before the ELC.
We hold that the objection was raised belatedly and under Section 3A and 3B of the Appellate Jurisdiction Act we shall proceed to consider the merits of the appeal.
An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.
Issues in the judgment
#Internal inconsistency on the date of the ruling setting aside the exparte judgment: one passage states a ruling dated 8th December, 2014, while the appellant's grounds and another passage refer to a ruling dated 8th October 2014 setting aside the judgment of the same date
The judgment does not name the 1st and 2nd respondents, referring to them only by number, so the full party lineup cannot be confirmed from the judgment text
The appellant's memorandum of appeal attributes fault to 'the learned Judge' for dismissing the judgment in Civil Suit No. 135 of 2009, but the set-aside was effected by P. M. Njoroge J. in the High Court, not by the ELC judge - the grounds conflate the two decisions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ikunyua v Ikunyua & 3 others (Civil Appeal 73 of 2018) [2025] KECA 1546 (KLR)", Case Analysis (2025). Civil Appeal (Nyeri) - memorandum dated 24th April, 2018; appeal from Meru ELC Originating Summons dated 7th October, 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1546/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.