Changwony v Kikechi

and that the appellant's occupation thereof amounted to unlawful trespass. Consequently, the court granted the respondent's prayers, including an order for vacant possession and eviction of the appellant, a permanent injunction restraining the appellant from further interfering with the suit property, and costs of the suit. 4. Aggrieved by the decision of the Superior Court, the appellant lodged the present appeal on ten grounds, contending that the learned Judge erred in law and fact by holding that the respondent had acquired the suit property through adverse possession despite not satisfying the requisite legal conditions; nding that time for purposes of limitation began to run in 1968; awarding the respondent ownership of the suit property on the basis of adverse possession notwithstanding the existence of a subsisting contract between the parties; applying the doctrine of adverse possession against a party recognized as the legal owner under the contract; concluding that the deceased had been dispossessed of the suit property merely because he was buried elsewhere; granting an equitable remedy where legal remedies were available; failing to properly consider the lease agreement executed between the parties; disregarding the appellant's witnesses' evidence on the ground that it was repetitive; speculating that the appellant could not have purchased the suit property because the respondent remained in possession; and failing to establish a coherent chronology of the material facts in determining when the respondent's rights accrued and whether they had been extinguished by limitation. 5. The appeal was canvassed by way of written submissions, which were briey highlighted on 18th February 2026. Counsel for the appellant submitted that the central issue was whether the trial court properly invoked the doctrine of adverse possession. He argued that the Environment and Land Court erred by holding that the respondent had acquired the suit property by adverse possession while simultaneously nding that his occupation arose from a sale agreement, which conferred permissive occupation. 6. The appellant further submitted that the trial court failed to properly evaluate the evidence before concluding that he had acted fraudulently or intermeddled with the deceased's estate. He maintained that he was a bona de purchaser for value who acquired the land in good faith from the deceased's family after succession proceedings had been undertaken, and that the court wrongly inferred bad faith on his part. 7. It was also the appellant's case that his registered title ought to have been protected, that the dispute was barred by the doctrine of res judicata, and that the respondent's proper remedies, if any, lay in contract through specic performance, restitution or damages, rather than acquisition of title by adverse possession. 8. In response, the respondent submitted that although his entry onto the land was pursuant to a sale agreement, the transaction became void upon expiry of the statutory six- month period without obtaining Land Control Board consent. Thereafter, his occupation became adverse, and time for purposes of adverse possession began to run. 9. The respondent maintained that he had remained in open, continuous, exclusive and uninterrupted possession of the suit property for well over the statutory period, thereby satisfying all the requirements for acquisition of title by adverse possession. 10. The respondent further argued that the appellant's allegations of fraud and illegality were unsupported by the evidence, as the appellant acquired title of the property long after the respondent had taken possession and therefore took title subject to the respondent's overriding interest. 11. Finally, the respondent contended that the doctrine of res judicata was inapplicable because the issues raised in the present proceedings had not been conclusively determined in any previous suit. He https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1988/eng@2026-09-25 2

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urged the Court to uphold the judgment of the Environment and Land Court, maintaining that the respondent had validly acquired title to the suit property by adverse possession. 12. This is a rst appeal. The Court’s mandate as the rst appellate court is to re-evaluate the evidence, assess it and reach a conclusion. I draw from Rule 31(1) of the Court of Appeal Rules 2022 which provides that: 1. On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power: a. to re-appraise the evidence and to draw Inferences of fact. See also this Court’s decision in Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR. 13. From the record, the respondent’s claim was that by operation of law, he had obtained, adverse possession, he had obtained ownership over 14.8 acres of the suit property. On his part, the appellant asserted that he had acquired his portion of the suit property having purchased the same from children of the original owner. 14. A claim for adverse possession is brought on the strength of section 38 of the Limitation of Actions Act that section provides; “ 38. Registration of title to land or easement acquired under Act. (1) 15. Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” For a party to succeed in a suit for adverse possession, the following circumstances must arise as considered by this Court in the case of Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR: “ Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 16. The appellant led evidence to the eect that the suit property was originally registered in the name of Jospeh Khutukhulu and that through a written agreement dated 13th October 1968, the respondent purchased 14.8 acres of the said land. That the respondent took possession of the land. However, in 1977, Joseph Khutukhulu passed away without transferring the purchased portion to the respondent. That he continued staying on the land until 1992 when he was forced out due to clashes that rocked the area however he continued leasing the land to third parties such as the appellant. That in 2002 he discovered that the appellant had registered the whole of the suit property in his name. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1988/eng@2026-09-25 3

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17. On his part, the appellant and his witnesses led evidence to the eect that the respondent had never been in possession of the suit property whereas he had been in possession of the said parcel for the past 15 years and had developed the same since purchasing it from the sons of the deceased Joseph Khutukhulu sometime in 1996. The appellant admitted leasing land from the respondent though he insisted that it was not the suit property. 18. Consequently, as to whether the respondent had satised the conditions, we are in agreement with the learned Judge that the respondent initially entered the suit property pursuant to a sale agreement in 1968 and took immediate possession of the 14.8 acres he had purchased and although his initial entry was lawful, the transaction became void for want of the requisite Land Control Board consent after six months, whereupon his continued occupation became adverse to the registered owner's title. It is at the lapse of the 6 months when the sale agreement between the deceased and the respondent became void that time began to run for purposes of calculating the 12 years within which the deceased ought to have asserted his rights over the suit property. 19. We note that no evidence was led before the trial court to the eect that the deceased, Joseph Khutukhulu, ever disputed the respondent’s occupation and possession over the suit property. The respondent remained in open, peaceful, exclusive, continuous and uninterrupted possession of the suit property for well over the statutory twelve-year period. During that period, neither the registered proprietor nor his successors took any eective steps to recover possession, with the result that the registered owner's title was extinguished by operation of the law of limitation. 20. As to the assertion fronted by the appellant that he was an innocent purchaser for value, we hold the view that this claim lacks merit. This Court in Lawrence P. Mukiri v Attorney General & 4 Others [2013] eKLR dened a bona de purchaser as a person who honestly intends to purchase the property oered for sale and does not intend to acquire it wrongly. 21. To be considered a bona de purchaser for value, one must prove; that they acquired a valid and legal title, secondly, that they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly, that they paid valuable consideration for the purchase of the suit property. (See Samuel Kamere v Lands Registrar, Kajiado [2015] eKLR & General & another v Hussein & 3 others [2025] KECA 1022 (KLR). However, the protection oered to a bona de purchaser for value without notice does not apply where the title to the property was obtained irregularly or illegally. As was held by the Supreme Court in Dina Management limited v County Government of Mombasa & 5 Others (Petition 8 (E010 of 2021) [2023] KESC 30 (KLR), a title document can be invalidated if it is proven that the initial allocation process was illegal or unprocedural. 22. The appellant herein admitted to having bought the suit property from the sons of the deceased prior to succession over the estate having been undertaken. The appellant also had knowledge that the suit parcel of land was owned by the respondent having leased the same from him. Taking the aforementioned into consideration, the appellant cannot be deemed to be a bona de purchaser for value as the sale of the suit property constituted intermeddling with the deceased’s estate contrary to section 45 of the Law of Succession Act. The appellant consequently acquired a bad title over the suit property that cannot be sustained. Having established that the appellant had acquired bad title over the suit property, the trial court could not then proceed to uphold the same as intimated by the appellant in his memorandum of appeal. 23. The upshot of the above is that we nd that the respondent proved on a balance of probabilities that he had acquired rights over the suit property by adverse possession. The learned trial judge thus did not err in upholding the respondent’s claim and we nd no reason to depart from the same. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1988/eng@2026-09-25 4

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24. Finally, as regards the contention that the respondent’s claim violated the doctrine of res judicata, we do note that this claim was never substantiated and in any case the issue of adverse possession was never canvassed and determined with nality so as to halt the Superior Court from entertaining the same. We reject this limb of the appeal for lack of merit. 25. Consequently, nding no merit in the appeal, we hereby dismiss it and award costs to the respondent. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. JAMILA MOHAMMED ....................................... JUDGE OF APPEAL H. A. OMONDI ....................................... JUDGE OF APPEAL L. KIMARU ....................................... 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/2026/1988/eng@2026-09-25 5

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