Feisal Said Rubeya & 3 others v Hamisi Mohammed & 2 others
The bottom line
#Kenya's Court of Appeal ruled that land occupiers cannot win ownership through adverse possession unless they formally plead it in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellants had locus standi as trustees of the Charitable Trust despite the mismatch in the entity's name.
The mismatch between the name of the trust in the Trust Deed and the name in the plaint did not render the suit incompetent; moreover, the locus standi challenge was not pleaded below and could not be raised on appeal.
The respondents withdrew their preliminary objection by consent in December 2018 and did not plead locus standi in their defences, so the issue was not before the trial court and could not be introduced on appeal. On the merits, the trustees named in the Trust Deed were the same persons who sued; only the trust's name differed. A name mismatch did not defeat the suit.
Whether the appellants' trespass suit was statute barred under Section 7 of the Limitation of Actions Act.
The suit was not statute barred because the respondents' occupation, if unauthorised, amounted to a continuing trespass generating a fresh cause of action each day.
Relying on Clerk & Lindsell and this Court's decisions in Nganga v. Gachiri, Muthiora and Njau v. Nderitu, the Court held that every continuance of a trespass is a fresh trespass creating a new cause of action from day to day. The learned Judge therefore erred in finding the suit time-barred where continuous trespass was established.
Whether the appellants proved ownership of the suit property.
Yes. A Provisional Certificate of Title issued pursuant to Gazette Notice No. 8946 of 29th July 2011 established the Charitable Trust as the registered owner of the suit property.
Section 26(1) and (2) of the Land Registration Act makes a certificate of title prima facie evidence of absolute and indefeasible ownership, subject only to challenge for fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition. No such challenge was established. The provisional title replaced the lost original and was issued to the same entity known by two names.
Whether the respondents were entitled to the suit property by adverse possession.
No. Adverse possession was never pleaded, and the evidence of long occupation was uncorroborated by any documentary or photographic proof; the trial judge erred in deciding the suit on that unpleaded basis.
Neither the respondents nor the necessary parties pleaded adverse possession or filed a counterclaim. The burden of proving adverse possession rests on the party asserting it, and none of the defence witnesses substantiated the claimed amenities or duration of occupation with evidence. The judge should have visited the locus in quo rather than accepting the respondents' word as gospel truth.
The duty of a first appellate court.
The Court, as a first appellate court, must reconsider and re-evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses.
Citing Selle v. Associated Motor Boat Co. Ltd, Jabane v. Olenja, Mbogo v. Shah and Ng'ati Farmers, the Court restated that it may depart from the trial court's findings only where they were not based on evidence, where the trial court acted on wrong principles, or where its discretion was exercised injudiciously.
Legal principles established
#- An issue not canvassed before the court of first instance cannot be raised for the first time on appeal.
- A claim of adverse possession must be specifically pleaded; it cannot be inferred merely from the length of occupation or raised in submissions without a plea or counterclaim.
- Continuing trespass gives rise to a fresh cause of action each day it persists, so a claim in trespass is not statute barred while the trespass continues.
- Under Section 26(1) and (2) of the Land Registration Act, a certificate of title is prima facie and conclusive evidence of ownership, challengeable only on the 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.
- Issues for determination in a suit flow from the pleadings, and the trial court may only pronounce judgment on issues arising from the pleadings or framed by the parties.
Court orders
#- 1.The appeal is allowed.
- 2.The judgment of Matheka, J. delivered on 23rd March 2023 in Mombasa ELC Case No. 272 of 2013 is set aside.
- 3.In its place, an order is issued allowing the prayers sought in the appellants' Amended Plaint dated 10th January 2019 (declaration of ownership, declaration of trespass, and permanent injunction).
- 4.Costs of the suit in the trial court and of the appeal are awarded to the appellants.
- On appeal from
- Environment and Land Court, Mombasa
- ELC Case No. 272 of 2013
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over appeals from the Environment and Land Court (as exercised under the Court of Appeal's statutory appellate mandate; no specific constitutional provision is invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Feisal Said Rubeya & 3 others v Hamisi Mohammed & 2 others", Case Analysis (2026). Not stated in the judgment (appeal against Mombasa ELC Case No. 272 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1024/eng@2026-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.