Maina & 2 others v Macharia & another

3. Further, the respondents contended that although the agreed purchase price was Kshs 360,000/-, they ended up paying over Kshs 560,000/- due to successive demands from the appellants' side. Further, they state that the respondents were given immediate possession of the 1-acre parcel on 16th August 2003 and have occupied and farmed the land peacefully and uninterruptedly since 2003, planting subsistence and cash crops, including eucalyptus trees, mango trees, maize, beans and avocado trees, as they waited for the completion of the succession cause to formally receive their land. 4. Although the succession process was concluded, the suit property was never transferred to the 1st respondent. There was continued delay in the transfer, which was attributed to the claim that the land subdivision was not done properly. However, the respondents discovered the suit property had been transferred to the appellants. 5. In opposition to the O.S., the 2nd appellant led a replying adavit sworn on 4th September 2018, and argued that there was no cause of action against them, as the respondents were on a shing expedition based on a stale contract dated 29th June 2018. The 2nd appellant pointed out a contradiction in the 1st respondent’s adavit, noting that while he claimed he had been waiting for completion of the succession process, it had actually been over nine (9) years since that succession was completed, meaning the suit was not led within the required time frame. Furthermore, the 1st respondent admitted that the appellants had not refused to allocate him the suit property but rather that the subdivision had not yet been properly executed. 6. He stated further that the last payment of the purchase price was made on 10th January 2011, 7 years from the time of swearing the adavit, meaning that the twelve (12) years necessary to sustain the 12-year period necessary in a claim of adverse possession had not accrued. Additionally, the 2nd appellant argued that the respondents' alternative prayer for compensation at market rate could not be an alternative to an adverse possession claim, making it a non-starter. Consequently, the appellants maintained that the claim was time-barred and legally awed. They sought dismissal of the application with costs and orders for eviction. 7. At the hearing of the suit at the ELC, the matter was heard by way of viva voce evidence. The 1st respondent (PW1) testied that he purchased a 1-acre plot of land in 2003 from the children of the deceased acting as representatives of the family for Kshs 360,000, and after making an initial payment of Kshs 300,000, he was put in possession of the land, which he continuously occupied and cultivated, having planted avocado and macadamia trees, and was still in occupation at the time of hearing. He further claimed that despite the agreed purchase price, due to excessive demands from the sellers, he paid Kshs 514,000 in total, with an additional Kshs 10,000 in 2011 towards the subdivision of the suit property. 8. The 1st respondent further testied that although he was not removed from the land when the succession case concluded, he discovered in 2018 that the three appellants had become the registered owners, and they have since refused to transfer the land to him. Consequently, the 1st respondent is claiming the one acre of land, or alternatively, compensation for the purchase price, though he noted he does not possess a formal land valuation for compensation purposes. 9. PW2, Samuel Waweru, testied that he had known Jackson Waweru Maina, Margaret Wanjiku, and Esther Wangari since 1999, at which time they were involved in a succession case for a piece of land belonging to their deceased grandfather, Ngunjiri Gichuki. On 24th November 1999, PW2 paid them a rst instalment of Kshs 10,000/- to assist them with the succession process, in the presence of his witnesses, Stephen Mwangi and Kaberere. After the succession cause ended, they delayed in giving him the 1-acre parcel that he had bought. He later learnt that the 1st respondent had refunded him the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1702/eng@2026-09-25 2

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money so that he could abandon the purchase of the property. He moved out in the year 2004 after being paid vide a cheque. He stated that it was the 1st respondent who took over the parcel of land that he had been farming and that he had purchased the same. 10. During cross-examination, PW2 explained that he had been given the land as a reward in exchange for helping the appellants with the succession cause. He had signed a land agreement with Esther Wangari, Margaret Wanjiku, and Jackson Waweru, who were acting on behalf of the larger family. While he had previously farmed the land, planting trees and napier grass, he moved out in 2004 after the 1st respondent refunded his purchase price via a cheque for Kshs 284,000/- so that PW2 would abandon his interest. Following this refund, the 1st respondent took over the land. He later learned that the respondents took possession. PW2 explained that he was not privy to the agreement between the respondents and the vendors. After he relinquished his interest, he did not concern himself with the land, as he had no further interest in it, and he indeed resided in Kangema, far away from the suit property. 11. PW3, Edward Mwangi Maina, a cousin to the appellants, testied that the family agreed to sell one acre of land to fund succession proceedings. While PW2 was the initial buyer, another buyer, the 1st respondent, oered a higher price and PW3 was refunded the monies he paid from the monies paid by the 1st respondent, thus corroborating the evidence of PW3. He also conrmed that the respondents took possession of the land in 2004 and have been utilising the same since then. He further conrmed that he received the purchase price on behalf of the family. 12. During cross–examination, he conrmed further that he was paid an additional Kshs. 10,000/from the 1st respondent on behalf of the family to facilitate the subdivision of the land, which was erroneously divided into three parcels instead of ve. He noted that the transaction involved multiple family members, though certain individuals like Margaret Mwangi, Esther Maina, and Jackson Waweru did not hold the title. 13. He also conrmed that the respondents were put in possession of the suit property and occupied the same undisturbed while awaiting the completion of succession proceedings. He could not recall when the succession proceedings concluded. He also conrmed that the respondents raised a complaint at the chief's oce in 2013 regarding his title. 14. The 2nd appellant (DW1) testied that he and the other two appellants are the registered owners of the suit property, having inherited the same through succession from their grandfather, Ngunjiri Githuki. He stated further that Esther Wangare Maina, Wanjiku Mwangi, and Jackson Waweru Maina had originally given the respondents permission to enter the land. He was aware that the 1st respondent purchased the land on behalf of the 2nd respondent. While the 2nd appellant opposed the respondents' claims and was seeking their eviction, he admitted during cross-examination that the 1st respondent had been peacefully cultivating the clearly demarcated land all along. Furthermore, the 2nd appellant revealed that the appellants attempted to remove the 1st respondent through the chief in 2017 without success. He also claimed that PW3 had secretly received the purchase price without the family's knowledge. 15. The trial court in its determination made a nding that the respondents had paid the full purchase price, and had entered the suit property in 2003, and had peaceful possession with the knowledge of the appellants’ family. As regards the principles to be established in a claim of adverse possession, the trial court reiterated the key requirements of the principle, namely occupation ought to be nec vi, nec clam, nec precario (without force, without secrecy, and without permission). In addition, the court reiterated the position in law that when a purchaser enters into possession of land under an agreement for sale after paying the purchase price, and the vendor subsequently refuses or fails to transfer the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1702/eng@2026-09-25 3

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property, the purchaser's continued possession ceases to be permissive and becomes adverse to the title of the owner. 16. In the end, the court determined that the 1st respondent had been in continuous, open, and uninterrupted possession of the 1-acre portion from August 2003 until the ling of the suit in 2018, which far exceeded the required 12-year statutory period, and the occupation was adverse to the owners’ title. It rejected the appellants' arguments regarding the interruption of time, noting that the mere change of ownership or the subdivision of the land during succession did not halt or reset the statutory period running in favour of the adverse possessor. Being of the view that the respondents had fully established their claim, the court found in their favour and declared that the respondents had acquired title to the 1 acre by adverse possession; ordered the appellants to subdivide the land and transfer the 1 acre to the 1st respondent; and directed each party to bear their own costs. 17. Aggrieved by the judgment, the appellants preferred this appeal raising six (6) grounds of appeal in their memorandum of appeal dated 15th September 2020. The grounds may be summarised as follows: the learned Judge erred in law and fact; in declaring that the respondents had acquired 1 acre out of the suit property by way of adverse possession; in her determination of the purchase price and in nding that the last instalment of Kshs 10,000, which was paid in the year 2011, did not form part of the consideration; in ordering the appellants to subdivide the suit land and transfer 1 acre to the 1st respondent. 18. This appeal was heard on the Court’s virtual platform by way of written submissions, which were briey highlighted by counsel for the respective parties. Learned counsel for the appellants led submissions dated 17th June 2025. In those submissions, he submitted that the appellants' case is that the respondents' occupation of the land was entirely permissive, which legally disqualies it from being adverse. Counsel urged that from the various adavits and witness statements, including the testimony of the 1st respondent, the respondents were given permission to cultivate the land while waiting for the completion of a succession cause, after which they were to receive their title. 19. Counsel argues further that because the transaction was contingent upon the succession cause, which concluded with titles being issued on 15th March 2018, no cause of action could have arisen prior to that date. Furthermore, counsel highlights the 1st respondent's own adavit stating that the appellants had never actually refused to allocate the land, but had merely noted that the subdivision was not done properly, an admission counsel argues proves the respondents recognized the ongoing permissive nature of their stay. 20. Additionally, counsel disputes the trial court's factual ndings regarding the purchase price and the timeline for adverse possession. While the trial Judge concluded that the purchase price was Kshs 360,000/- and categorized subsequent payments as administrative expenses, the appellants point out that the respondents presented conicting gures, including claims of payments exceeding Kshs 514,000/-. Crucially, counsel highlights a specic payment of Kshs 10,000/- made on 10th November 2011, which was explicitly documented in writing as being for the "purchase of land". He submits that the respondents did not establish what the purchase price was in view of the conicting gures. 21. Counsel asserts further that the trial Judge erred by relying on oral evidence that the sum paid in 2011 was an administrative cost rather than the nal instalment of the purchase price, negating the appellant’s position that even if possession could be considered adverse, the clock would only start from that date of nal payment, and only seven years had passed between the 2011 payment and the date the suit was led, meaning that the statutory 12-year threshold required for adverse possession was never met. Consequently, counsel urged this Court to overturn the subdivision order and instead grant the appellants' counterclaim for the eviction of the respondents. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1702/eng@2026-09-25 4

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22. In opposing the appeal, learned counsel for the respondents led submissions dated 27th June 2025 and submits that the appeal lacks merit, defending the trial Judge's ndings and requesting that the appeal be dismissed. Counsel asserts that the learned Judge properly found adverse possession, noting that it was undisputed that the 1st respondent had maintained open, uninterrupted occupation of one acre of the suit property since 2003, arising from a 2003 sale agreement as a bona de purchaser for value; therefore, any mention of "permission" simply implied a valid entry rather than a status as a trespasser. 23. Regarding the nancial transactions, counsel maintains that the agreed-upon purchase price of Kshs 360,000/- was fully paid, a fact corroborated by witnesses. Counsel explains that an additional Kshs 10,000/- requested by the seller was not part of the purchase price, but rather an act of kindness by the respondents to assist with subdivision costs after the seller decided to subdivide the land into ve portions instead of three. He adds that the fact that the respondent paid an amount that exceeded the purchase price under the sale agreement does not change the fact that the purchase price as indicated in the agreement was paid. 24. Furthermore, counsel rejects the appellants' counsel’s argument regarding the remedies sought and argues that it is legally sound and just to claim adverse possession, which can rightfully emanate from a contract of sale, while alternatively requesting market-value compensation if the primary claim fails. Ultimately, counsel concludes that the trial Judge delivered a well-balanced judgment based on a thorough consideration of all evidence on record, meaning the ordered transfer of the one acre to the respondents should not be interfered with. 25. This being a rst appeal, this Court is obligated to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusion, bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify as enunciated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where this Court held that a rst appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it neither saw nor heard the witnesses. 26. We have considered the record of appeal, the submissions led by the parties, the authorities cited and the law and are of the view that the following issues arise for determination: i. Whether the respondents established their case under the principles of adverse possession; and ii. If so, what is the remedy available to them. 27. It is not in dispute that the respondents entered the suit property pursuant to a sale agreement executed in 2003. However, the appellants contend that the said occupation remained permissive throughout and therefore could not found a claim for adverse possession. The respondents do not dispute that, upon payment of the purchase price, they entered with the appellants' or administrators' consent, awaiting completion of a succession cause, the facts of which are not denied by the appellants either. This situation is not unique to this case and has been addressed by this Court severally. In Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR), this Court held that where a purchaser is put in possession pursuant to a sale agreement, time begins to run once the contract is repudiated or once the purchaser’s occupation becomes inconsistent with the vendor’s title, especially where the vendor fails to complete a transfer. 28. Similarly, in Public Trustee v Wanduru Ndegwa [1984] KECA 72 (KLR), this Court held that: “ The position of a vendor and a purchaser of registered land is this. The vendor as the registered owner retains the legal estate and becomes the trustee of it for the purchaser when the purchaser pays a deposit for it. The vendor retains a lien on the property for the balance https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1702/eng@2026-09-25 5

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of the purchase money which disappears when it is paid and the purchaser then becomes the sole benecial owner and the vendor becomes a bare trustee for the purchaser. If the vendor trustee allows the purchaser cestui qui trust to remain in possession the latter is in adverse possession because the vendor as the absent registered owner always retains the legal estate and this prima facie entitles him to resume possession from the purchaser in possession. The limitation period will begin to run from the date of the payment of the purchase price in full or last instalment of it. See Harman J in Bridges v Mees, [1957] I Ch 475; and Simpson J (as he then was) in Hosea v Njiru Ors, [1974] EA 526 (K).” 29. The evidence on record is that the respondents took possession of the suit property in 2003 upon payment of a substantial payment of the purchase price and indeed concluded payment of the balance, cultivated the land openly, planted permanent crops and remained in occupation peacefully and uninterruptedly to date. PW3 conrmed that the respondents had been tilling the land since 2004 without disturbance. DW1 equally admitted in cross-examination that the respondents had all along cultivated the clearly demarcated portion of land peacefully. 30. Although the respondents initially entered the land arising from a sale agreement by mutual agreement, that permission ceased upon payment of the purchase price and the failure by the vendors and subsequently the appellants to eect transfer of the property to the respondent as agreed. 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, making them mere trustees of the respondents’ interest in the land as rightly held by the trial court. 31. This Court in Samuel Miki Waweru v Jane Njeri Richu [2007] KECA 465 (KLR), armed that where a purchaser remains in possession after completion of payment, and the vendor fails to transfer title, time begins to run for purposes of adverse possession. 32. The learned trial Judge in the trial court’s determination stated as follows: “ It is not in dispute that the 1st Plainti entered the suit land pursuant to a purchaser’s right after paying consideration to the sellers. The Defendants have not disputed that the purchase price was not paid. At the point of selling the land the sellers only interest was the balance of the payment of the purchase price. The interest in the land is held by the purchaser because he has given a consideration for the land. The interest is personal to the buyer and is adverse to the interest of the seller. It is adverse because the purchaser’s interest is acquisition of the property and the seller’s interest is the recovery of the purchase price. The permission to occupy is in recognition of the consideration and change of interest in the land. The two interests have dierent causes of action enforceable by any of the parties in the manner that relates to it. For example, the purchaser can sue for specic performance and the seller the recovery of the balance purchase price. The title therefore being held by the Defendants/estate of the original owner at this point was being held in trust for the purchaser pursuant to a purchaser’s right. It is the nding of the Court that the occupation of the land by the 1st Plainti was not with the permission of the seller but adverse to the title of Defendants.” 33. On when the time for purposes of adverse possession began to run, the appellants argue that the last payment towards the sale of the suit property was made in 2011, and therefore time could only begin running from that date. The learned Judge rejected that contention and found that the purchase price had been fully paid by 2005, based on the testimony of the 1st respondent, who testied that the agreed purchase price was Kshs 360,000/= and that the same had been fully paid by 2005, and the additional https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1702/eng@2026-09-25 6

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Kshs 10,000/= paid in 2011 was money requested to assist with subdivision. PW3 corroborated that evidence by conrming that the additional sum was intended to facilitate subdivision after the land had mistakenly been subdivided into three instead of ve portions. This Court in Public Trustee v Wanduru Ndegwa (supra), held that where a purchaser is put into possession pursuant to a contract of sale, time begins to run upon payment of the nal instalment of the purchase price and the failure by the vendor to complete the transaction. 34. On our part, we are satised that the learned Judge properly evaluated the evidence and correctly found that the additional payment made in 2011 did not constitute part of the consideration for the sale and that the evidence on record, which remains uncontroverted, is that the agreed purchase price had already been settled by 2005. 35. Accordingly, time began to run, at the latest, in 2005 upon completion of payment and continued possession that was uninterrupted thereafter. By the time the originating summons was led in 2018, the statutory period of twelve years under sections 7 and 13 of the Limitation of Actions Act had long lapsed. Further, the subdivision of the land and subsequent change of ownership did not interrupt time, as held by this Court in Mwangi Githu v Livingstone Ndeete [1980] KECA 35 (KLR); a mere change of ownership of land occupied by another person under adverse possession does not interrupt such person’s adverse possession. 36. In Titus Mutuku Kasuve v Mwaani Investments Limited & 4 Others [2004] KECA 161 (KLR), this Court held that a claimant must prove open, continuous and uninterrupted possession of land for a period of at least twelve years either after dispossessing the owner or after discontinuance of possession by the owner. Similarly, in Lewa v Mwagandi (Civil Appeal 56 of 2014) [2015] KECA 532 (KLR), this Court stated that adverse possession is essentially a situation where a person takes possession of land and asserts rights over it while the owner omits or neglects to take action against such occupation for the prescribed statutory period. 37. The evidence before Court established that the respondents entered the suit property in 2003, occupied a clearly identiable one-acre portion, cultivated the same openly and continuously and remained in possession without interruption. The appellants admit that attempts to remove the respondents through the chief in 2017 were unsuccessful. The respondents’ possession was therefore open, notorious, peaceful and uninterrupted for well over twelve years. The learned Judge cannot be faulted for concluding that the respondents had proved their claim for adverse possession. 38. The learned Judge held that: “ It goes without saying that the occupation of the 1st Plainti of the land was open continuous uninterrupted and with the knowledge of the Defendants. It is the nding of the Court that the 1st Plainti has established title by way of adverse possession.” 39. The alternative prayer for compensation did not derogate from the respondents’ principal claim for adverse possession. It was merely pleaded in the alternative. We are satised that the learned Judge properly directed herself on both the facts and the law and arrived at the correct conclusion. 40. Accordingly, this appeal lacks merit and is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ................ https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1702/eng@2026-09-25 7

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JUDGE OF APPEAL S. ole KANTAI ................ JUDGE OF APPEAL ALI-ARONI ................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1702/eng@2026-09-25 8

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