Maina & 2 others v Macharia & another
The bottom line
#Kenya's Court of Appeal confirmed that a land buyer who pays in full and moves in can legally own the land after 12 years, even without a title transfer.
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 respondents established their case under the principles of adverse possession
- 2.If so, what is the remedy available to them
Key legal issues
#Whether the respondents' occupation was permissive or adverse
Permission ceased upon full payment of the purchase price and the vendors' failure to transfer; possession then became adverse to the registered owners' title
The respondents entered under a 2003 sale agreement with consent, awaiting completion of succession. Following Sisto Wambugu and Public Trustee v Wanduru Ndegwa, once the purchase price was fully paid and transfer was not effected, the vendors became bare trustees and the purchasers' occupation became inconsistent with the vendor's title, converting permissive possession into adverse possession.
When time began to run for adverse possession
Time began to run, at the latest, in 2005 upon completion of payment; the Kshs 10,000 paid in 2011 was for subdivision, not part of the purchase price
The trial Judge found, on uncontroverted testimony of PW1 corroborated by PW3, that the agreed price of Kshs 360,000 was fully paid by 2005 and the 2011 payment was to facilitate subdivision after erroneous subdivision into three instead of five portions. Applying Public Trustee v Wanduru Ndegwa, the limitation period ran from full payment.
Whether the twelve-year statutory period was met
Yes; by the filing of the suit in 2018 the twelve-year period under sections 7 and 13 of the Limitation of Actions Act had long lapsed
Possession from 2003/2005 was open, notorious, peaceful and uninterrupted for well over twelve years. The 2017 attempt to remove the respondents through the chief failed, and the change of ownership and subdivision during succession did not interrupt time, per Mwangi Githu v Livingstone Ndeete.
Whether the alternative prayer for compensation undermined the adverse possession claim
No; the alternative prayer for compensation did not derogate from the principal claim
The court held that pleading compensation in the alternative was legally sound and did not defeat the primary adverse possession claim, rejecting the appellants' submission that the two remedies were incompatible.
Legal principles established
#- Where a purchaser enters possession under a sale agreement and pays the purchase price in full, and the vendor fails to transfer, the purchaser's possession becomes adverse and time runs from the date of full payment or last instalment
- A mere change of ownership of land occupied by a person in adverse possession does not interrupt that possession
- A first appellate court must re-evaluate and re-analyse the evidence and reach its own conclusion while bearing in mind it did not see or hear the witnesses
Court orders
#- 1.Appeal dismissed with costs to the respondents
- 2.Trial court's declaration that the respondents acquired title to 1 acre by adverse possession stands
- 3.Trial court's order that the appellants subdivide the land and transfer 1 acre to the 1st respondent stands
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Murang'a
- ELC Case No. 60 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction
Relief refused
#Appellants' counterclaim for eviction of the respondents
Possession was adverse for over twelve years, not permissive; the appeal lacked merit
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.
Accordingly, this appeal lacks merit and is hereby dismissed with costs to the respondents.
Accordingly, time began to run, at the latest, in 2005 upon completion of payment and continued possession that was uninterrupted thereafter.
The respondents’ possession of the suit property became inconsistent with the title of the registered owner(s) and/or subsequent owners the moment he paid the last purchase price
The respondents’ possession was therefore open, notorious, peaceful and uninterrupted for well over twelve years.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina & 2 others v Macharia & another", Case Analysis (2026). Civil Appeal E138 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1702/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.