Kiarie & another v Ngutuku (Environment and Land Appeal E025 of 2023) [2025] KEELC 5111 (KLR)
The bottom line
#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 trial court was right in dismissing the appellants' claim and allowing the respondent's counterclaim
- 2.Whether the respondent proved his claim of adverse possession of the suit property
Key legal issues
#Whether the trial court was right in concluding that the respondent had proved adverse possession
Yes. The respondent entered in 2003 under a sale agreement with Richard Waweru and remained in open, peaceful and uninterrupted occupation; by 2019 he had occupied for 16 years, well beyond the statutory 12 years, so the appellants' title was extinguished and their claim rightly dismissed.
The court noted the appellants never pleaded when the alleged trespass began, and PW1 admitted in cross-examination that the respondent had occupied the land for 13 years. The respondent's possession was exclusive, notorious and unchallenged, anchored on the sale chain from Albert Kiarie Waweru to Richard and then to the respondent. Registration of the appellants in 2016 through succession was subject to the respondent's overriding interest under section 28 of the Land Registration Act. The first appeal court found no basis to disturb the trial magistrate's conclusion.
Conclusiveness of the appellants' registered title
The registration was not challenged on grounds of fraud, misrepresentation, illegality or corruption; the respondent pleaded only an overriding interest of adverse possession, which binds registered land under section 28 of the Land Registration Act.
Section 26 of the Land Registration Act renders a certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. No such ground was pleaded against the appellants' registration. However, rights acquired by prescription under limitation-of-actions law are overriding interests, so adverse possession may defeat an otherwise sound title.
Legal principles established
#- Registration of land vests in the owner absolute and indefeasible rights unless the registration was obtained by fraud, misrepresentation, illegality, want of procedure or corruption; prescriptive rights under adverse possession are overriding interests not noted on the register
- The duty of a first appellate court is to re-analyse, re-evaluate and re-assess the evidence and reach its own conclusions while making due allowance for not having seen or heard the witnesses
- Adverse possession requires exclusive occupation as of right, disposing of the true owner, for a continuous uninterrupted period of twelve years, whereupon the owner's title is extinguished
Court orders
#- 1.Appeal dismissed with costs to the respondent
- 2.Trial court's judgment of 19th April 2023 (dismissing the plaintiffs' claim and allowing the defendant's counterclaim of adverse possession over Kakamega/Mautuma/846) upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Kakamega
- Kakamega CMC ELC No. 113 of 2019
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over the trial magistrate's judgment (appeal disposed by way of written submissions)
Relief refused
#Setting aside of the trial court's judgment of 19th April 2023
The court found the trial court correctly concluded that the respondent proved adverse possession for over 12 years
Permanent injunction against trespass as sought in the plaint
The injunction sought was interlocutory in nature (pending hearing and determination) and the appellants' claim failed on the merits
Costs
Appeal dismissed with costs to the respondent
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.
In the premises, I find and hold that the respondent duly proved his case on the required standard before the trial court and therefore the trial court was right in concluding that he was entitled to the suit property by the doctrine of adverse possession.
For the above reasons it is my view that the trial court was right in dismissing the appellants' claim and allowing the respondent's counterclaim. In the premises I find no basis or justification to interfere with the trial court's finding and I hereby dismiss this appeal with costs to the respondent.
Therefore, prescriptive rights including rights conferred by adverse possession, although not noted on the register, are overriding interests which registered land is subject to.
Adverse possession is a doctrine where a trespasser claims ownership of land owned by another person, upon having and as of right exclusively occupied the same, by dispossessing the true owner thereof for a continuous, uninterrupted period of twelve years.
Issues in the judgment
#Internal inconsistency in dates: the defendant's defence and counter claim is stated as dated 30th August 2019 yet alleges he purchased the suit property on 18th February 2023, while elsewhere the purchase date is given as 18th January 2003
Names of the original owner appear variously as Albert Kiarie Waweru and Albert Kiarie Waithaka in the judgment
Inconsistent citation of Richard's earlier suit, referred to as Case No. 755 of 2018, Kakamega ELC No. 165 of 2021 and Kakamega ELC No. 165 of 2016 in different passages
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiarie & another v Ngutuku (Environment and Land Appeal E025 of 2023) [2025] KEELC 5111 (KLR)", Case Analysis (2025). ELC Appeal (Kakamega) - Memorandum of Appeal dated 16th May 2023, appeal from Kakamega CMC ELC No. 113 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5111/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.