John Patrick Omukuba v Ali Chibule Mmbwana

1977. He claims to have purchased land parcel No. BUTSOTSO/SHIKOTI/1872 in 1977 from one Indetie Matara, though his title to that parcel was Page 2 of 12

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only registered in 1981. He contends that at the time of purchase, he took possession of not only his registered parcel but also the disputed 1.31 hectares, which he believed formed part of his purchase because of the existing physical boundaries. He testified that he has lived on, cultivated, and developed this portion openly and continuously since 1977 without interference. The Respondent's title to the suit land, BUTSOTSO/SHIKOTI/933, was registered in 1999. Prior to that, the land was registered in the name of one Mukoya Musia. The Appellant did not assert any claim of adverse possession against Mukoya Musia during the period that Mukoya Musia held title (1977 to 1999), nor did he move the court for a declaration of adverse possession against the Respondent immediately upon the Respondent's registration in 1999. 3. In 2002, a dispute arose regarding the boundary between the Appellant's parcel No. BUTSOTSO/SHIKOTI/1872 and the Respondent's parcel No. BUTSOTSO/SHIKOTI/933. The Respondent lodged a claim before the Lurambi Land Disputes Tribunal (Case No. 253 of 2002). The Tribunal found in favour of the Respondent, determining that the Appellant had encroached onto the Respondent's land. A District Surveyor's report confirmed this encroachment. The Appellant, being dissatisfied, appealed to the Provincial Land Disputes Appeals Committee, which dismissed the appeal. The Page 3 of 12

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Appellant further appealed to the High Court (Kakamega Civil Appeal No. 106 of 2003), which similarly dismissed the appeal, upholding the Tribunal's finding that the disputed portion belonged to the Respondent. Page 4 of 12

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4. It was only after these successive losses in the tribunal and appellate fora, and about thirteen years after the High Court dismissed his appeal, that the Appellant filed the Originating Summons in the ELC in ELC Case No. 139 of 2016, seeking adverse possession over the very same portion of land he had been litigating over since 2002. 5. The Appellant's Memorandum of Appeal raises the following grounds:a. That the learned trial Judge erred in law and in fact by dismissing the Appellant's suit for adverse possession when the evidence on record established that the Appellant had been in open, continuous, and uninterrupted possession of the disputed portion for over twelve years. b. That the learned trial Judge erred in law by failing to find that the title of the then registered proprietor of the suit land had been extinguished by the Appellant's adverse possession by 1989, twelve years after the Appellant entered into possession in 1977, thereby rendering the Respondent's subsequent registration in 1999 a nullity. c. That the learned trial Judge erred in law and in fact by treating the dispute as a boundary dispute and by relying on the proceedings and decisions of the Land Disputes Tribunal and the High Court to dismiss the Appellant's Page 5 of 12 claim for adverse

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possession. Page 6 of 12

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d. That the learned trial Judge erred in law and in fact by finding that the Appellant was a trespasser when he had acquired title to the disputed portion by adverse possession. e. That the learned trial Judge misdirected herself in her evaluation of the evidence and in her application of the principles of adverse possession to the facts of the case. 6. When the matter came up for hearing on 28th April 2026, the Appellant, though served, did not appear either in person or through counsel. The Court confirmed that the Appellant's advocates, Shitsama and Company Advocates, had been served on 16th April 2026 through shitsamaadvocates@gmail.com, but no representative of the firm was on the virtual platform. Ms. Kaweso Juma, learned counsel for the Respondent, appeared and prayed that the appeal be dismissed for want of prosecution. However, the Court noted that the Appellant had filed written submissions, and by virtue of Rule 105(4) of the Court of Appeal Rules, 2022, an appellant who fails to appear at the hearing but has filed submissions is deemed to have appeared. The Court therefore considered the Appellant's written submissions alongside the Respondent's written and oral submissions. Ms. Juma highlighted the Respondent's written submissions dated 10th March 2025 and relied on the authorities cited therein. 7. The Appellant's written submissions, Page 7 of 12 which we have

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considered in the Appellant's absence, argued that the Appellant entered into possession of the disputed 1.31 hectares in 1977 and had since exercised acts of Page 8 of 12

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ownership openly, continuously, and without interruption. It was submitted that by 1989, the Appellant had fulfilled the statutory period of twelve years under Section 38 of the Limitation of Actions Act, and the title of the then registered proprietor, Mukoya Musia, was thereby extinguished. The Appellant contended that the Respondent could not have acquired a valid title in 1999 because the register at that time did not reflect the true ownership position, the previous owner's title having been extinguished. The Appellant further submitted that the proceedings before the Land Disputes Tribunal and the High Court were a nullity because they were founded on a title that had already been extinguished, and that the trial judge erred in treating those proceedings as determinative of the Appellant's adverse possession claim. 8. In response, the Respondent's counsel submitted that the Appellant's claim was incompetent because the Appellant sued the wrong party. It was submitted that if the cause of action for adverse possession accrued in 1989, the proper defendant would have been Mukoya Musia, who was the registered proprietor at that time, and not the Respondent, who only acquired title in 1999. Counsel submitted that adverse possession does not operate automatically to extinguish title; a court declaration is required, and no such declaration had been obtained before 1999. It was further submitted that the Respondent's title in 1999 was valid and subsisting on the register, and the Appellant, having failed to seek a declaration against Mukoya Musia, could not now turn Page 9 of 12

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to the Respondent. Page 10 of 12

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9. On the merits, counsel submitted that the Appellant had not proved the elements of adverse possession. It was contended that the Appellant's possession was not adverse but was based on a claimed purchase from Indetie Matara, which made it permissive in nature. Counsel relied on Titus Mutuku Kasuve v Mwangi Investments Limited & 4 others [2004] KECA 161 (KLR) for the proposition that possession derived from a sale agreement is not adverse. Counsel further submitted that the Respondent's initiation of the Tribunal proceedings in 2002 constituted an act of recovery of land that interrupted any adverse possession that may have been running. On the evidence, it was submitted that the Appellant did not produce photographs, a survey report, or development records to prove exclusive and notorious possession of the specific 1.31 hectares claimed, and that the Surveyor's report in the Tribunal proceedings confirmed that the Appellant had encroached on the Respondent's land. Counsel urged the Court to dismiss the appeal with costs. 10. This is a first appeal from the decision of the Environment and Land Court, and we are therefore duty-bound to reevaluate and re-assess the evidence that was placed before the trial court and draw our own independent conclusions, while giving due deference to the trial court's findings on matters of credibility and demeanour where the trial judge had the advantage of seeing and hearing the witnesses. This principle was settled in Selle v Associated Motor Boat Page 11 of 12

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Co. Ltd [1968] EA 123 and reaffirmed in Peters v Sunday Post Ltd [1958] EA 424. In Mwangi v Wambugu [2004] 1 KLR 45, the Court of Appeal stated that Page 12 of 12

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a first appellate court must reconsider the evidence, evaluate it, and draw its own conclusions, but must always bear in mind that the trial court had the advantage of observing the witnesses. We shall therefore proceed to reevaluate the evidence on record with these principles in mind. 11. Having considered the grounds of appeal, the submissions of both parties, and the record of appeal, we find that the following issues arise for determination: a. Whether the Appellant's claim for adverse possession against the Respondent is competent in law; and b. Whether the Appellant proved the elements of adverse possession on the evidence. 12. The first issue addresses the Appellant's argument that the Respondent's title was extinguished before 1999 and that the Appellant therefore sued the wrong party. The Appellant claims to have acquired title by adverse possession in 1989, being twelve years from 1977 when he alleges he first took possession of the disputed portion. At the time this cause of action allegedly matured in 1989, the suit land was registered in the name of Mukoya Musia. The Respondent only acquired title in 1999, ten years after the Appellant's alleged cause of action arose. 13. The Appellant asserts that by the time the Respondent was registered as proprietor in 1999, the title of the then registered owner Mukoya Musia, had already been extinguished by the Appellant's adverse possession, and that Page 13 of 12

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the Respondent's registration was therefore a Page 14 of 12

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nullity. At the hearing of this appeal, on being asked whether, by 1999, the initial owner Mukoya Musia still had title to the disputed portion capable of being transferred to the Respondent, given that the Appellant had allegedly been in adverse possession for over twelve years by 1989, the Respondent's counsel responded that adverse possession does not operate automatically to extinguish title; it takes effect only upon a declaration by a court. 14. We agree. Land title is not extinguished by the mere passage of time or by the factual possession of an adverse possessor. A claim for adverse possession must be vindicated by a court of law. Until such a declaration is made, the registered proprietor's title remains intact on the register. As was held in Mwangi Githu v Livingstone Ndeete [1984] KLR 776, and as is well established under Section 38 of the Limitation of Actions Act, a person who claims to have become entitled to land by adverse possession must apply to the court for a declaration to that effect. It follows that Mukoya Musia's title was not extinguished in 1989 or at any time before 1999 in the absence of a court declaration. Consequently, when the Respondent purchased the land in 1999, he acquired what was on the register — a valid and subsisting title. The Appellant's argument that the Respondent's registration was a nullity is without legal foundation. 15. Even if one were to accept the Appellant's argument that the title had been extinguished by operation of law, the proper Page 15 of 12

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party to sue would have been Mukoya Musia, who was the registered proprietor at the time the cause of action allegedly accrued. The Appellant never sued Page 16 of 12

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Mukoya Musia. He waited until 2016, a period of twentyseven years after the alleged accrual of the cause of action and seventeen years after the Respondent's registration, to file the present suit against the Respondent. The Respondent, having purchased the land in 1999 with a clean title on the register, cannot be held liable for a cause of action that the Appellant allegedly had against a different person over a decade earlier. 16. Furthermore, the Tribunal proceedings initiated in 2002 were not a nullity as the Appellant suggests. They were properly constituted proceedings to resolve a genuine boundary dispute between two registered proprietors. The Appellant actively participated in those proceedings and never raised a claim of adverse possession at any stage, not before the Lurambi Land Disputes Tribunal, not before the Provincial Land Disputes Appeals Committee, and not before the High Court in Civil Appeal No. 106 of 2003. 17. The Respondent acquired a valid title in 1999, and the Appellant's cause of action, if any, lay against a different person at a different time. From the foregoing, the claim for adverse possession against the Respondent is not competent in law. 18. Despite having made the above finding on the first issue, this being the first appellate court, we will proceed to consider the second issue on whether the Appellant proved the elements of adverse possession on the evidence. For the Appellant to succeed, he was required to prove, on a balance Page 17 of 12

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of probabilities, that he had been in open, continuous, and exclusive possession of the disputed 1.31 hectares of the suit land for a Page 18 of 12

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period of twelve years or more, and that such possession was nec vi, nec precario, nec clam, which means without force, without permission, and without secrecy. See Githu v Ndeete [1984] KLR 776 and Kioko & another v Mulinge & another [2025] KECA 274. 19. The record shows that the Appellant, who testified as PW1, stated that he purchased land parcel No. BUTSOTSO/SHIKOTI/1872 in 1977 from one Indetie Matara and took possession of both that parcel and the disputed 1.31 hectares. PW2, a neighbour, testified in support of the Appellant's long-term occupation. However, the Appellant did not produce the agreement of sale, photographs, development records, or any independent documentary evidence to establish the precise nature, extent, and duration of his possession over the specific 1.31 hectares claimed. The Appellant produced no survey report to delineate the boundaries of the portion he claimed to have possessed adversely. Oral testimony regarding the precise acreage and boundaries of the disputed portion, without documentary support, is inherently unreliable. 20. Critically, the record contains a District Surveyor's report that was produced during the Lurambi Land Disputes Tribunal proceedings. That report found that the Appellant had encroached beyond the boundary of his own parcel No. 1872 into the Respondent's parcel No. 933. This finding was upheld by the Tribunal, the Provincial Land Disputes Appeals Committee, and the High Court in Civil Appeal No. 106 of Page 19 of 12

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2003. The Surveyor's report is significant documentary evidence that contradicts the Appellant's claim of adverse possession and Page 20 of 12

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instead supports the finding that the Appellant was an encroacher on the Respondent's land. 21. Additionally, the nature of the Appellant's possession undermines his claim. When the dispute arose in 2002, the Appellant did not plead adverse possession. He contested the boundary and asserted his presence on the land on the basis of his purchase from Indetie Matara. By asserting a possessory title derived from a sale, the Appellant's possession was not adverse; it was permissive. As was held in Titus Mutuku Kasuve v Mwangi Investments Limited & 4 others [2004] KECA 161 (KLR), possession derived from a sale agreement is not adverse. The Appellant cannot approbate and reprobate; he cannot argue in 2002 that he is on the land by virtue of a purchase, and then turn around in 2016 and claim that he acquired the land by adverse possession because the purchase argument failed in the earlier proceedings. 22. Moreover, the Respondent's initiation of the Tribunal proceedings in 2002 had the legal effect of interrupting any adverse possession that may have been running. The Respondent, through those proceedings, asserted his title and sought to recover the land. This constituted an unequivocal act of possession and assertion of ownership by the registered proprietor, which had the effect of breaking the continuity of any adverse possession. 23. We are satisfied that the Appellant did not prove the elements of adverse possession on the evidence. The trial Page 21 of 12

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court's finding to that effect was well-founded, and we see no reason to interfere with it. Page 22 of 12

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24. From the foregoing, the Appellant's claim for adverse possession fails on both issues. The claim against the Respondent is incompetent in law, and even on the merits, the Appellant did not establish the requisite elements of adverse possession. We are satisfied that the learned trial judge, Hon. Lady Justice N. A. Matheka, properly evaluated the principles of adverse possession and the evidence on record, and the judgment of the trial court cannot be faulted. We therefore find that the appeal lacks merit and is hereby dismissed with costs to the Respondent. 25. Orders accordingly. Dated and Delivered at Kakamega this 3rd day of July 2026. P. NYAMWEYA ........................... ............... JUDGE OF APPEAL R. NGETICH ........................... ............... JUDGE OF APPEAL RADIDO S. OKIYO ............................ .............. JUDGE OF APPEAL I certify that Page 23 of 12

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this is a true copy of the original Signed DEPUTY REGISTRAR Page 24 of 12

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