Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the excerpt (Kakamega ELC Appeal)

Khaluyile v Murabi & another (Sued as Administrators and representatives of the Estate of Stephano Wasia-Deceased) (Environment and Land Appeal E082 of 2024) [2026] KEELC 3903 (KLR)

Environment and Land Court
17 June 2026
2,937 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

#

The Environment and Land Court in Kakamega dismissed a land claim because the claimant had no documents or clear evidence proving 12 years of peaceful occupation.

What this practically means

#

Executive summary

#
This is a first appeal to the Environment and Land Court at Kakamega against the judgment of Hon. Angeline Odawo (PM) delivered on 30th October 2024 in Kakamega CM ELC Case No. E020 of 2020, dismissing an Originating Summons in which the appellant sought to be declared entitled to vacant possession of L.R No. Kakamega/Lukume/377 by adverse possession and to be registered as its proprietor. The appellant, who occupied the neighbouring parcel Kakamega/Lukume/378, claimed occupation of the suit property since 1973. The respondent, administrator of the estate of the registered owner, the late Stephano Wasia, denied the appellant's occupation and characterized the matter as a boundary dispute. The appeal was disposed of by written submissions. Nyukuri J set out the duty of a first appellate court to re-analyze and re-evaluate the evidence, and framed a single issue: whether the trial court erred in finding that adverse possession was not proved. The court set out sections 7, 13, 17 and 38 of the Limitation of Actions Act and the doctrine's elements, including possession that is open, peaceful, continuous and adverse for 12 years. The court held that the appellant neither pleaded nor testified as to the manner of his occupation, produced no documents, not even an extract of title as required by Order 37 Rule 7 of the Civil Procedure Rules, and that the record of boundary disputes negatived peaceful possession. The trial court's findings were affirmed, and the appeal was dismissed with costs to the respondents on 17th June 2026.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court was wrong in concluding that the appellant failed to prove his claim over the suit property under the doctrine of adverse possession

Key legal issues

#
01

Whether the appellant proved a claim of adverse possession over L.R No. Kakamega/Lukume/377

Holding

The appellant failed to prove adverse possession; the trial court's dismissal of the claim was correct and the appeal was dismissed

Reasoning

The court reiterated the statutory scheme under sections 7, 13, 17 and 38 of the Limitation of Actions Act and the requirement of open, peaceful and uninterrupted possession for 12 years. The appellant neither pleaded nor testified as to the manner of his occupation, produced no extract of title as required under Order 37 Rule 7 of the Civil Procedure Rules, and the evidence showed ongoing boundary disputes over the land, negativing peaceful occupation. The trial court's conclusions therefore required no interference.

p. 6

Legal principles established

#
  • To prove adverse possession, possession must be shown to be adequate in continuity, publicity and extent, and adverse to the registered owner
  • A claimant in an adverse possession suit must plead and prove the manner of occupation and produce documentary evidence including an extract of title under Order 37 Rule 7 of the Civil Procedure Rules
  • The duty of a first appellate court is to re-analyze, re-evaluate and re-assess the evidence and reach its own conclusions while allowing for the lack of advantage of seeing and hearing witnesses

Court orders

#
  1. 1.The appeal was dismissed with costs to the respondents

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Kakamega (Environment and Land Court, CM ELC)
Kakamega CM ELC Case No. E020 of 2020
Jurisdiction invoked
First appellate jurisdiction over an appeal from the trial magistrate's court in an ELC matter

Relief refused

#

Setting aside the judgment of 30th October 2024 and substitution with a declaration that the appellant had acquired the suit property by adverse possession and is entitled to be registered as proprietor of L.R No. Kakamega/Lukume/377

The appellant did not plead or prove the manner of his occupation, produced no documentary evidence including an extract of title, and there was evidence of boundary disputes negativing peaceful and continuous possession

p. 6

Order that each party bear their own costs

The appeal was dismissed with costs to the respondents

p. 6

Costs

Appeal 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.

The upshot is that I find no merit in this appeal, which I dismiss with costs to the respondents.
p. 6Disposition - dismissal of the appeal with costs
Therefore, the appellant made assertions that were not substantiated. There was therefore no evidence of the appellant's occupation of the suit property.
p. 6Failure of proof of adverse possession
The appellant did not produce a single document to prove his claim, not even an extract of title of the suit property, which is a requirement for every claim of adverse possession, under the provisions of Order 37 Rule 7 of the Civil Procedure Rules.
p. 6Documentary requirements under Order 37 Rule 7
Therefore, there was evidence that there had been no peaceful occupation of the suit property.
p. 6Boundary disputes negate peaceful possession
This being a first appeal, the duty of this court as a first appellate court is to re-analyze, re-evaluate and re-assess the evidence tendered before the trial court
p. 4Duty of first appellate court

Issues in the judgment

#
minor

The judgment alternates inconsistently between referring to the party as 'appellant' and 'applicant'/'plaintifi' in the same passages, e.g. describing the lower-court claimant's pleadings while the matter is an appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Khaluyile v Murabi & another (Sued as Administrators and representatives of the Estate of Stephano Wasia-Deceased) (Environment and Land Appeal E082 of 2024) [2026] KEELC 3903 (KLR)", Case Analysis (2026). Not stated in the excerpt (Kakamega ELC Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3903/eng@2026-06-17

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