Wanyama v Lyani & another

of land from the 1st Respondent’s then larger parcel, Ndivisi/Ndivisi/1552, for a total consideration of Kshs. 120,000/=. The record indicates that this purchase price was paid in full. However, clause 3 of the said agreement stipulated that the value of trees and bananas standing on the specic 0.8Ha portion would be negotiated and paid for separately. 4. The Appellant’s case is that upon attempting to take possession of the initial 2-acre portion, he discovered that the 1st Respondent had already sold the trees and bananas thereon to a third party. To remedy this breach, the 1st Respondent oered the Appellant an alternative adjacent 2-acre portion. This alternative portion was vacant and lacked any trees or bananas. The Appellant accepted this variation, took possession of the new portion in October 1996, and the said portion was later formally excised and registered as title number Ndivisi/Ndivisi/1640. The original title, Ndivisi/Ndivisi/1552, was subdivided, and it is the specic resultant title, Ndivisi/Ndivisi/1640 (the suit land), that was transferred by the 1st Respondent to the 2nd Respondent in March 2011. 5. At the time of taking possession, the Appellant was residing in Kiminini. Consequently, he did not physically occupy the land personally but instead leased it to one Eliud Musambai. Following the death of Mr. Musambai, his widow, Rose Naliaka Musambai (PW3), continued in occupation as the Appellant’s tenant until the year 2011. 6. At the trial, the Appellant (PW1) testied that upon payment of the purchase price of Kshs. 120,000, he was placed in possession of the suit land in 1996. He stated that he leased the land to Eliud Musambai and later his widow, Rose Naliaka Musambai (PW3). PW3 corroborated the Appellant’s testimony, conrming that she and her late husband occupied the land as the Appellant’s tenants from 1996 continuously until 2011 when the dispute arose. The 1st Respondent (DW1) admitted receiving the purchase price but contended that the agreement was frustrated because the Appellant failed to pay for the trees and bananas. He testied that he wrote a letter to the Appellant in 2002 and subsequently stopped the Appellant’s tenant from farming the land in 2004. The 2nd Respondent (DW2) testied that he purchased the suit land in 2011 for valuable consideration without any notice of the Appellant’s claim. 7. The Appellant claimed he remained in constructive possession through his tenants until March 2011, when he discovered that the 1st Respondent had sub-divided the original title and transferred the suit property (Ndivisi/Ndivisi/1640) to the 2nd Respondent, Hesborn Murule Lusweti. Aggrieved by this transfer, the Appellant led the Originating Summons giving rise to this appeal, claiming he had acquired title by adverse possession having been in open and uninterrupted possession for over 12 years. 8. The trial court heard the matter and ultimately dismissed the Appellant’s claim. In its judgment, the trial court placed heavy reliance on a letter dated 12th February 2002, allegedly written by the 1st Respondent to the Appellant, demanding payment for the trees. The court treated this letter as a valid interruption of the adverse possession period. 9. On the nature of possession, the trial court found that the Appellant had failed to prove exclusive possession because he had leased the land to a third party, Eliud Musambai, and later his widow, thereby implying the possession was not that of the Appellant. 10. On the 1996 agreement, the trial court found that the original sale agreement was frustrated because the price for trees and bananas was never agreed upon. The trial court hinged the validity of the Appellant's claim on the validity of the contract, rather than on the factual reality of possession. 11. Consequently, the court held that the Appellant had not met the threshold for adverse possession and dismissed the suit. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2019/eng@2026-06-19 2

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12. 13. Aggrieved, the Appellant raises four grounds of appeal in his Amended Memorandum of Appeal as follows: a. THAT the Learned Judge erred in law and in fact in his judgment by heavily relying on a letter dated 12th February, 2002, allegedly written by the 1st Respondent to the Appellant, which letter was a forgery. b. THAT the learned Judge erred in law and fact in his judgment by failing to totally address his mind on the evidence as adduced by the Appellant. c. THAT the Learned Judge erred in law and in fact by failing to appreciate that by leasing the suit land to one Eliud Musambai, the Appellant was in constructive possession of the land. d. THAT the learned Judge erred in law and in fact by making a nding that the agreement dated the 22nd May, 1996, was frustrated but failed to make any orders to remedy the Appellant, who had already discharged his obligations as per the agreement. The Appellant urges this court to set aside the trial court’s judgment and substitute it with the following orders: a. A declaration to issue that the Appellant has been in occupation and possession of land parcel number Ndivisi/Ndivisi/1640 openly, notoriously, adversely, and continuously for a period of over 12 years and has therefore acquired title to the same by way of adverse possession. b. A declaration to issue that the Respondents' title to the land parcel number Ndivisi/ Ndivisi/1640 and/or anybody claiming under them has become extinguished by operation of the law. c. An order to issue for the Appellant to be registered forthwith as the owner/proprietor of the said land parcel number Ndivisi/Ndivisi/1640. d. An order of eviction to issue as against the Respondents in respect to the land parcel number Ndivisi/Ndivisi/1640. e. Costs of this appeal and the suit before the superior court be granted to the Appellant 14. During the hearing of the appeal on 21st April 2026, Mr. Paul Bulowa, learned counsel for the Appellant, submitted that possession became adverse the moment the purchase price was paid and the Appellant was placed in possession of the suit land in October 1996. He relied on the case of Peter Michuki v. Samuel Mugo Michuki [2014] eKLR for the proposition that time begins to run once a purchaser takes possession of land. 15. On the issue of the 2002 letter, Counsel submitted that a mere letter from a registered proprietor does not constitute an "assertion of title" capable of interrupting limitation. He cited Jane Biriri & Another v Samuel Kiarie Kinuthia, Civil Appeal No. 121 of 2006, where this Court held that a letter or notice to vacate is not an assertion of title in law and thus cannot stop the clock of limitation. 16. Mr. Bulowa further argued that the possession of a tenant is, in law, the possession of the landlord. He submitted that the Appellant’s act of leasing the land to Eliud Musambai and later Rose Naliaka Musambai (PW3) was an exercise of his right of possession, not an abandonment of it. 17. Opposing the appeal, Mr. Joseph Sichangi, learned counsel for the 1st Respondent, associated himself with the trial court’s ndings. He argued that the 1996 agreement was never fullled due to the unresolved issue of payment for trees and bananas. He contended that the Appellant’s occupation https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2019/eng@2026-06-19 3

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was neither exclusive nor continuous, citing a dispute reported to the area chief in 2004 where the 1st Respondent allegedly dispossessed the tenant. Counsel maintained that the letter of 2002 demonstrated that the 1st Respondent was asserting his rights, thereby interrupting any adverse possession that might have been accruing. 18. We have considered the record of appeal, the submissions of counsel, and the authorities cited. The duty of this Court as a rst appellate court is well settled. As stated in Selle & Another v. Associated Motor Boat Company Ltd & Others [1968] EA 123, we are required to re- evaluate the evidence, assess it, and make our own conclusions, while giving due allowance to the fact that we did not have the opportunity to see or hear the witnesses testify. 19. In our view, the following issues arise for determination: a. Whether the Appellant was in possession of the suit land for a continuous period of 12 years. b. Whether the trial court erred in nding that the 2002 letter and the lack of Land Control Board consent defeated the claim. c. Whether Appellant is entitled to the reliefs sought. 20. In respect to the nature of possession, the trial court found that the Appellant failed to prove exclusive possession because he leased the land to a third party. However, the legal position is that a landlord is deemed to be in possession of his land through his tenant. The tenant’s possession is the possession of the landlord for all legal intents and purposes. This principle was well articulated in Joseph Njoroge Macharia vs Gachathi Gichira & Others [2014] eKLR, where the Court held that it is trite law that the possession of a tenant is the possession of the landlord. The tenant’s possession is the possession of the landlord for all legal intents and purposes. 21. The evidence on record shows that from October 1996 to 2011, a period of approximately 15 years, the suit land was occupied by Eliud Musambai and later his widow, Rose Naliaka Musambai (PW3). Both witnesses testied that they were on the land as tenants of the Appellant. They acknowledged his ownership and paid rent to him. This constitutes constructive possession. The Appellant exercised his right to possession by putting a tenant on the land, collecting rent, and retaining ultimate control. He did not abandon the land; he utilized it. The trial court’s conation of physical personal occupation with legal possession was a misdirection. 22. On the eect of the letter dated 12th February 2002, in which the 1st Respondent allegedly demanded payment for trees, it is settled law that for adverse possession to be interrupted under Section 38 of the Limitation of Actions Act, the registered proprietor must interrupt the possession by taking legal action or by physically re-entering the land and dispossessing the squatter. A mere demand letter, without more, does not constitute an assertion of title capable of stopping time from running. From the foregoing, we nd ourselves unable to agree with the trial court's nding. 23. In Jane Biriri v. Samuel Kiarie Kinuthia (supra), this Court held that the issuance of a notice to vacate or a demand letter is a hollow threat in law and does not amount to an interruption of possession. Similarly, in Wambugu v. Njuguna [1983] KLR 172, it was held that interruption must be by eective entry or by legal process. The 2002 letter was merely a demand for money; it was not accompanied by any eviction suit or physical re-entry. Therefore, it could not and did not interrupt the running of the 12-year statutory period. 24. In regard to the calculation of time and the extinguishment of title, evidence adduced establishes that the Appellant took possession of the suit land in October 1996. The 12-year statutory period under Section 7 of the Limitation of Actions Act (Cap 22) began to run immediately. This period lapsed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2019/eng@2026-06-19 4

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in October 2008. The record shows that the suit property, namely Ndivisi/Ndivisi/1640, remained registered in the name of the 1st Respondent until March 2011, when he transferred it to the 2nd Respondent. As at March 2011, the 1st Respondent’s title had already been extinguished by operation of law in October 2008. He therefore had no legal title, which he could validly transfer to the 2nd Respondent. This brings into play the Latin maxim “nemo dat quod non habet”, which means “one cannot give what one does not have”. The 2nd Respondent cannot claim a better title than the one his vendor, the 1st Respondent, had at the time of the transfer in 2011. 25. On the validity of the 1996 agreement, the trial court dwelt heavily on the fact that the price for trees and bananas was never negotiated and that Land Control Board consent was not obtained. While these may be valid defenses in a suit for specic performance of a contract, they are largely irrelevant to a claim based on adverse possession. Adverse possession is a factual claim rooted in possession, not contract. Even if the original agreement was void for lack of consent, once the Appellant was placed on the land and remained there for 12 years, his right to title crystallized independent of the contract. In our considered view, the trial court’s failure to distinguish between the contractual claim and the possessory claim led to a miscarriage of justice. 26. From the foregoing, we nd that the Appellant has demonstrated on a balance of probabilities that he was in open, notorious, exclusive, and continuous possession of the suit land, Ndivisi/ Ndivisi/1640, from October 1996 to 2011. This period far exceeds the 12-year statutory threshold. The 1st Respondent’s title was extinguished in 2008, and the subsequent transfer to the 2nd Respondent in 2011 was a nullity. 27. Consequently, we nd this appeal is meritorious and is hereby allowed, and we make the following orders: a. The judgment and decree of the Environment and Land Court at Bungoma delivered on 27th May 2020 in ELC (OS) No. 26 of 2011 is hereby set aside. b. A declaration is hereby issued that the Appellant, Joseph Mumero Wanyama, has acquired title to land parcel number Ndivisi/Ndivisi/1640 by way of adverse possession. c. The titles held by the 1st Respondent (Jafred Wanjala Lyani) and the 2nd Respondent (Hesborn Murule Lusweti) regarding land parcel Ndivisi/Ndivisi/1640 are hereby extinguished. d. The Land Registrar, Bungoma County, is hereby ordered to cancel the title in the name of Hesborn Murule Lusweti and register the Appellant, Joseph Mumero Wanyama, as the absolute proprietor of all that land known as Ndivisi/Ndivisi/1640. e. The Respondents shall bear the costs of this appeal and the costs of the suit in the trial court. DATED AND DELIVERED AT KAKAMEGA THIS 19TH DAY OF JUNE 2026. P. NYAMWEYA ………………………… JUDGE OF APPEAL R. NGETICH ……………………………. JUDGE OF APPEAL RADIDO S. OKIYO https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2019/eng@2026-06-19 5

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………………………. 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/2026/2019/eng@2026-06-19 6

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