Kanziwa Limited v Kandie & another

3. By an originating summons dated 21st November 2007, the respondents suing as administrators of the estate of the deceased sued the appellant at the High Court at Nakuru in HCCC Suit No. 252 of 2007 seeking determination of the following questions: a. Whether they had become entitled to be registered as proprietors of 50.18 Ha of parcel LR No. 9726, Njoro by way of adverse possession. b. Whether they should be registered as proprietors of 50.18 Ha of LR NO.9726 Njoro. c. Whether the appellant should, through its ocers/directors, execute the necessary and relevant conveyance documents to eect their registration as the proprietors of 50.18 Ha of LR 9726 Njoro within 14 days of service of such order and in default the Court’s Deputy Registrar be authorized to execute such documents. d. Which party ought to bear costs of the suit. 4. The salient grounds in support of the summons were that: (a) in 1982, the deceased purchased 50.18 Ha from the appellant which were to be excised from LR No. 9726, Njoro; (b) the deceased obtained the requisite Land Control Board consent, and took exclusive possession of the land; (c) at the time of his demise, the deceased had been in possession for over twenty years, though the land had not been transferred to him; (d) the appellant trespassed into the land in February 2004, made illegal subdivisions, and advertised portions of the land for sale. (e) the respondents as successors to the deceased’s title had acquired title in respect of 50.14 Ha. of LR No. 9726, Njoro by way of adverse possession; (f) the deceased's rights crystallized upon the expiry of 12 years from the date of the transaction in the year 1982; (g) the appellant had been dispossessed and its occupation ceased in respect of the said portion. 5. The appellant led a replying adavit sworn by its director, David Kahumbu, on 6th February 2009. While acknowledging that it was the registered proprietor of L.R. No. 9726, the appellant denied having sold any portion of the said land to the deceased. It alleged that the respondents had undertaken various acts on the land clandestinely and without its knowledge, consent or authority. It further averred that in 2002, it discovered that the respondents had been utilizing a portion of LR No. 9726 which protruded into the respondents' neighbouring land LR No. 10370 without its permission. Through its advocates, the appellant issued a demand letter requesting the respondents to stop the said utilization. The respondents failed to provide proof of any sale agreement or payments, therefore, their claim was incompetent and bad in law. 6. The totality of the appellant’s case was that the deceased never purchased the property, and that the deceased’s family has never been in occupation of the suit land. It maintained that the portion in dispute is leased out to some other persons. Nevertheless, the appellant admitted that the deceased had his farm next to the appellant’s land where he used to herd his cattle. The appellant vehemently denied surrendering the portion in question to the deceased. 7. After analyzing the evidence, Mulwa, J. was satised that adverse possession was proved to the required standard. Accordingly, she entered judgment in favour of the respondents as follows: (a) the plaintis are entitled to be registered as the proprietors of 50.18 Hectares to be excised from LR No.9726 Njoro by way of adverse possession, being the portion excised, and given parcel NO.9726/1; (b) the defendant is directed and ordered by its directors to execute the necessary and relevant conveyance documents to eect the registration of the plaintis as the proprietors of 50.18 Ha within LR. NO.9726, Njoro, being subdivision No. LR9726/1 within 14 days of the said documents being presented to it by the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2080/eng@2026-10-02 2

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plaintis; (c) in default of (2) above the Deputy Registrar of the High Court at Nakuru Law Courts is authorized to call for the conveyance documents and execute the same to facilitate number (1) above; (d) the defendant is condemned to pay costs of the suit to the plaintis. 8. Aggrieved by the above verdict, the appellant mounted this appeal citing a whopping 23 grounds of appeal in its memorandum of appeal dated 20th December 2021 which can safely be summed up as follows: (a) nding that adverse possession had been proved; (b) awarding the respondents a dierent parcel of land other than the one they had pleaded; (c) shifting the burden of proof to the appellant; (d) confusing the respondents’ adjacent parcel of land with the appellant’s land despite evidence that the two were distinct; (e) failing to nd that the respondents did not annex the abstract of title; and (f) basing her Judgment on documents which had not been produced or admitted in evidence at the trial. 9. In support of the appeal, the appellant through its counsel led written submissions dated 19th May 2026. Its main arguments are: (a) that the parties are bound by their pleadings. In support of this assertion, the appellant cited Independent Electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 Others [2014] eKLR. It maintained that the respondents’ claim as pleaded was for adverse possession but they adduced evidence relating to a claim based on contractual purchase of the suit land. To support this assertion, the appellant referred to Nakuru HCC No. 237 of 2005 in which it was pleaded that after Aaron Kimosop Kandie’s death on 7/7/2002, the appellant forcefully removed the deceased's beneciaries and dependents from the land and took possession of the same, which meant, adverse possession ceased. 10. The appellant dedicated 57 paragraphs of its submissions which are highly repetitive and numerous authorities to basically argue that adverse possession was not proved. It cited Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR to urge that the elements of adverse possession were not established. Further, permissive entry or possession of land cannot amount to adverse possession. It cited Mwinyi Hamisi Ali vs. Attorney General and Philemon Mwaisaka Wanaka [1997] eKLR and several other decisions in support of this assertion. In addition, the appellant cited Section 38 of the Limitation of Actions Act and a plethora of other cases among them Titus Kigoro Munyi vs. Peter Mburu Kimani [2015] eKLR, Wilson Kazungu Katana & 101 Others vs. Salim Abdalla Bakshwein & Another [2015] eKLR, Kasuve vs. Mwaani Investments Limited & 4 Others [2004] 1 KLR, to argue that in a claim for adverse possession, the plainti must demonstrate the following: (a) he has been in continuous and uninterrupted possession of the land for 12 years or more; (b) the possession has been open and notorious to the knowledge of the owner, and, (c) possession was without the permission of the owner. 11. The appellant argued that the learned judge contrary to evidence that the respondent’s possession was disrupted proceeded to nd that adverse possession had been proved. It also submitted that the land pleaded in the originating summons, and in all the adavits and witness statements led by the respondent was land LR No. 9726. However, during PW7's oral testimony in court, he claimed that the land was LR No. 9726/1 and failed to produce the certicate of title which was fatal to their case. Subsequently, the respondents sought to review the same judgment and introduce the correct title. 12. The appeal is opposed. The essence of the respondents’ submissions is that the trial court thoroughly considered the evidence tendered before it, the documents relied upon by the parties and the applicable legal principles, and correctly found that the respondents had established their claim of adverse possession through clear and uninterrupted possession. Counsel also submitted that the appellant’s evidence of ownership and sale was considered but it did not outweigh the respondent’s evidence. Accordingly, the respondents urged this Court to dismiss the appeal and uphold the trial court’s judgment. It was the appellants’ submissions that the evidence and the applicable legal principles support their claim for ownership through adverse possession and purchase. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2080/eng@2026-10-02 3

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13. The respondents cited Wambugu vs. Njuguna [1983] KLR 172 in support of the proposition that adverse possession involves two concepts, dispossession and discontinuance of possession, and that the correct test is whether the title holder has been dispossessed or has discontinued possession for the statutory period of 12 years, not merely whether the claimant has been in possession for that period. 14. The respondents also cited Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR in support of the proposition that adverse possession arises when a person takes possession of land and asserts rights over it, while the title holder fails to take action for 12 years. Further, under the Limitation of Actions Act, after 12 years of adverse possession, the registered proprietor’s title is extinguished and the possessor can apply to be declared the owner. 15. The respondents also cited Teresa Wachuka Gachira vs. Joseph Mwangi Gachira [2009] eKLR to urge that possession can be established by acts such as fencing or cultivating, depending on the nature and characteristics of the land. They also cited Titus Kigoro Munyi vs. Peter Mburu Kimani [2015] KECA 9523 (KLR) to urge that the claimant must prove possession as of right, that it must be continuous and not interrupted, and as was held in Kimani Ruchire vs. Swift Rutherfords & Co. Ltd [1980] KLR, the claimant must show that the owner had knowledge (actual or constructive) of the possession which was continuous. They also cited Joseph Kamau Gichuki vs. James Gatheru Mukora & Another [2019] eKLR in support of the holding that adverse possession can be claimed posthumously if the deceased was in open, continuous and uninterrupted possession for the statutory period. 16. The respondents also cited the holding in James Kendagor Simatei vs. Philiph Simatei [2019] eKLR that Section 3(7) of the Law of Contract Act excludes the requirement for written contracts for land transactions made before 1st June 2003. Part performance such as taking possession can suce. Therefore, the respondents’ claim even without a written agreement suces. They also cited Peter Mbiri Michuki vs. Samuel Njugo Michuki [2014] eKLR and Public Trustee vs. Wanduru [1984] KLR 314 in support of the contention that for purchasers in possession, adverse possession is calculated from the date of payment of the purchase price because the owner is dispossessed from that date. Lastly, the respondents’ cited Gitobu Imanyara & 2 others vs. Attorney General [2016] eKLR to urge that an appellate court should not overturn trial court’s ndings of fact unless there is a clear error in principle or misapprehension of evidence. 17. A convenient starting point is to underscore that a rst appellate court is the nal court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence. Anything less is unjust. The rst appeal has to be decided on facts as well as on law. In a rst appeal, parties have the right to be heard on both questions of law and facts; and the rst appellate court is required to address itself to all issues and decide the case by giving reasons. (See Peters vs. Sunday Post Limited [1958] E.A. page 424). 18. The germane issues in this appeal are three-fold, though intertwined. One is the question whether the deceased purchased the suit land from the respondent. Two, is the question whether the elements of adverse possession were proved. Three, is the question whether the deceased’s legal representatives can lawfully mount a claim premised on adverse possession. 19. The rst question is basically an issue of fact. Therefore, it turns on the question whether the respondents proved on a balance of probabilities, (which is the standard of proof in a civil case), that the deceased purchased the suit land from the appellant. This requires this Court to satisfy itself that the respondents’ version was more probable than that of the appellant. Undeniably, whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2080/eng@2026-10-02 4

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to a decision in any particular case. As Rajah, JA in Britestone Pte Ltd vs. Smith & Associates Far East Ltd [2007] 4 SLR 855 at 59 stated: “ The court’s decision in every case will depend on whether the party concerned has satised the particular burden and standard of proof imposed on him.” 20. As was held by this Court in Kimweli vs. Kimweli (Civil Appeal 660 of 2019) [2022] KECA 1394 (KLR) (16 December 2022) (Judgment): “ Whoever desires a court to give judgement as to any legal right or liability, dependent on the existence of fact which he asserts, must prove that those facts exist. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. A plainti must prove his case on the balance of probabilities before the defendant can rebut them. A court of law can only weigh up the proved facts without concerning itself with speculating on evidence that was never adduced, or which does not follow by reasonable inference from the proved facts. Inference, it was observed by Lord Wright in Caswell v Powell Duryn Associated Collieries Ltd [1939] 3 All ER 722 (HL) at 733 must be carefully distinguished from conjecture or speculation: “ "There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases, the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases, the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation.” 21. Before the trial court, the parties presented diametrically opposed factual positions. The respondents’ case was that the deceased purchased a piece of land known as LR No. 9726, Njoro from John Kahumbu who was his friend; in support of their case, the respondents produced: (a) an application for consent of the Land Control Board to sub-divide and sell the suit land duly signed by both the vendor and the purchaser; (b) a copy of a limited grant of Letters of Administration to the deceased’s estate issued on the 25th March 2003, (c) a copy of the Certicate of Title of LR No.9726; (d) a letter of consent dated 24th December 1982 consenting to the sub-division and sale; (e) letter dated 8th December 1982 from the Commissioner of Lands addressed to District Commissioner, Nakuru, enclosing the proposed sub-division plan; (f) letter dated 23rd December 1982 from County Council of Nakuru conrming that they had no objection to the sub-division and sale; (g) a copy of a sale agreement. It was the respondent’s case that the deceased took possession of the suit land in 1982 and he lived on the land until he died in 2002. 22. PW6, a Government Surveyor based at Nakuru County testied in support of the respondents’ case. He conrmed that a sub-division of the suit property was eected and a new number LR 570/51 given on Njoro Map I, and that he did not know the parties to the suit nor the party who applied for the sub-division. PW7, a son of the deceased testied that his late father purchased the portion in 1982 and that the appellant failed to give them the title of the sub-vision and relied on the documents produced to the court. 23. The appellants’ case is summed in the testimony of DW1, its director. He denied that the deceased ever bought the land in question. He maintained that the deceased occupied the adjacent land where he grazed his cattle and that the dispute only arose after the deceased’s death save in 2004 when the respondents led HCCC NO. 237/2005 which was withdrawn, after some squatters invaded the land. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2080/eng@2026-10-02 5

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24. Confronted with these diametrically opposed versions presented by the parties, the learned judge in the denitive paragraphs stated: “ 23. The evidence adduced before me is that the late Aaron Kandie and his family moved and took possession of part of the defendant’s land parcel No. 9726 situated at Njoro in the year 1982, upon which they undertook farming activities and cattle rearing up to the year 2002 when Aaron Kandie died, before the defendant excised the portion the Kandie family occupied, and made use of. 24. It is also clear from the evidence by both the plaintis and the defendant that the occupation and use of 50.18 Ha of the suit property LR 9726 by the Late Aaron Kandie and his family was by permission and authority of the defendant upon purchase of the same. 25. This is so because PExhibit 14, a letter signed by J.F. Kahumbu dated 22nd September 1983 reveals: “ …I hereby conrm my willingness to sell the said portion of my farm. In this regard, I am by copy of this letter, requesting the AFC to give consent to the exercise and sale of that portion of my farm. Additionally, I am also requesting AFC to arrange for the necessary survey and valuation of the said portion of my land to facilitate the sale of the same”. 25. 26. The writer, J.F. Kahumbu was the father of DW1 David Kahumbu who swore the replying adavit to the Originating Summons. This witness admitted to have been only 12 years old when the sale and purchase was undertaken by his late father and the late Aaron Kandie. 27. It is upon the above requests by the defendant that Molo Land Control Board gave its consent for the subdivision and sale of the portion measuring 50.18 Ha to the Late Aaron Kandie on 24th December 1982 and the Commissioner of Lands of no objection to the subdivision upon obtaining of all consents from the various bodies – Pexhibit KK3 (a), KK3 (b), KK6 (a) & (b) & (c) (see paragraph 7 of this judgment). 28. Had there been no sale and purchase, such letters and consents would not have been written. The defendants’ witnesses did not question the said letters and consents in their evidence or at all, including their submissions by their advocates, M/s Gatu Magana & Co. Advocates, who submitted that there was no evidence of payment of the purchase price.” Regarding the absence of a written sale agreement, the learned judge referred to Section 3 (3) of the Law of Contract Act which provides that a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract –(i) has in part performance of the contract taken possession of the property or any part thereof, or (ii) being already in possession, continues in possession in part performance of the Contract and has done some other act in furtherance of the contract, and stated that the said proviso cushions both parties in this case. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2080/eng@2026-10-02 6

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26. In this appeal, the appellant is urging this Court to nd that the learned judge erred in arriving at the above ndings. The trial court was tasked with the duty of evaluating the completely conicting factual positions and arrive at the correct nding, that is, which of the two versions was more probable than the other. In resolving this issue, we may protably benet from the often- cited decision of the South African Supreme Court of Appeal in Stellenbosch Farmers Winery Group Ltd & Another vs. Martell & Others, 2003 (1) SA 11 (SCA) at para 5, in which the Court explained how a court should resolve factual dierences and ascertains as far as possible where the truth lies between conicting factual contentions. It stated: “ To come to a conclusion on the disputed issues, a court must make ndings on: i. The credibility of various factual witnesses; ii. Their reliability; and iii. The probability or improbability of each party’s version on each of the disputed issues In light of the assessment of (a), (b) and (c), the court will then, as a nal step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be a rare one, occurs when a court’s credibility ndings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the lesser convincing will be the latter. But when all factors equipoised, probabilities prevail.” 27. We have carefully read the evidence tendered before the trial court and the above excerpt from the impugned judgment. The learned judge was satised that as a matter of fact that the respondents’ exhibit marked a s Plaintis’ Exhibit 14 was a letter signed by J.F. Kahumbu dated 22nd September 1983 which read “…I hereby conrm my willingness to sell the said portion of my rm. In this regard, I am by copy of this letter, requesting the AFC to give consent to the exercise and sale of that portion of my farm. Additionally, I am also requesting AFC to arrange for the necessary survey and valuation of the said portion of my land to facilitate the sale of the same”. The trial judge was also satised as a matter of fact that the writer of the above letter, J.F. Kahumbu was the father of DW1 David Kahumbu (DW1) who swore the replying adavit to the Originating Summons. DW1 admitted he was only 12 years old when the sale and purchase was undertaken by his late father and the late Aaron Kandie. 28. It is settled law that the approach an appellate court must take when deciding an appeal that hinges largely on factual ndings is governed by the core principle of appellate restraint. The core guidelines for reviewing questions of fact include a presumption of correctness absent of material misdirection and a high threshold where interference is reserved only for instances where the trial court was clearly wrong. Furthermore, any lingering doubt requires upholding the trial court’s decision, and a factual misdirection is identied by patently unsatisfactory or overlooked reasoning. 29. From the evidence on record, we note that the deceased and the vendor signed an application for consent of the Land Control Board. This document was signed by Mr. Kahumba, (the father to DW1) as the vendor and the deceased as the purchaser. Also, the fact that the parties obtained all the required consents/approvals leaves no doubt about the parties’ intention. These proven facts attest to the existence of a common intention and commitment to the agreement for sale and transfer of the said land. The learned judge was persuaded that the deceased bought the land from Mr. Kahumba. We nd no reason to fault the said ndings. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2080/eng@2026-10-02 7

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30. Having established that the deceased entered into the suit land as a purchaser, we now turn to the next question, which is whether a claim based on adverse possession can be sustained in such circumstances. Jurisprudence from our courts show a clear interaction between a purchaser in possession under a sale agreement and the doctrine of adverse possession. Earlier decisions of this Court such as Sisto Wambugu vs. Kamau Njuguna [1982–1988] 1 KAR 217 show that a purchaser's possession was deemed permissive and not adverse to the vendor. However, subsequent decisions by this Court have modied this position, establishing that an uncompleted sale agreement can ripen into adverse possession if the purchaser lives on the land for over 12 years and can plead these claims alternatively. For example, this Court in Ouko & Another vs. Kageni [2025] KECA 2126 (KLR) held that once the purchase price is fully paid and the vendor fails to transfer the title, the permission expires, making the vendor a bare trustee and starting the 12-year statutory clock under the Limitation of Actions Act. 31. Also, this Court in Okul & Another vs. Ondieki & 3 Others [2026] KECA 882 (KLR) armed the "No-Fault" standard, where a transaction stalling through no fault of the purchaser turns their continued long-term occupation adverse and allows pleading in dual capacity. In Willy Kimutai Kiprono vs. Peter Musa & Another [2018] KECA 573 (KLR) this Court established that even if a transaction is void or unenforceable, physical possession operates independently, and the void contract immediately converts possession into an adverse one. The above cited decisions are on all fours with this case. We can only say that we have said enough to demonstrate that the deceased’s long-term occupation of the land converted into adverse possession the moment 12 years lapsed entitling the deceased (and in this case his legal representatives) to plead the dual capacity, that is, as purchasers, and secondly, adverse possession. The above cited authorities graphically extinguish the appellant’s argument that the respondents’ claim as pleaded was for adverse possession but they adduced evidence relating to a claim based on contractual purchase of the suit land. It is settled law that an uncompleted sale agreement can ripen into adverse possession if the purchaser lives on the land for over 12 years and can plead both adverse possession and contractual claims alternatively. 32. This leads us to the next sub-issue, which is, whether the respondents in their capacity as the deceased’s legal representatives could validly mount a claim for adverse possession. This Court has severally armed that a legal representative (such as an administrator of an estate) can successfully claim adverse possession on behalf of a deceased person's estate. When a purchaser buys land, takes possession, lives on it for over 12 years, and passes away, their statutory right to the land does not expire with them. Instead, it forms part of their estate and their legal representative can enforce it. The denitive and recent authority clarifying this exact scenario is the landmark case of Ouko & Another vs. Kageni (Supra). In this case, the personal representatives and administrators of a deceased purchaser’s estate successfully mounted an adverse possession claim against the estate of a deceased seller. The Court armed several critical principles for legal representatives: a. Transmission of Adverse Rights. The emphasis here is that the rights acquired through longterm physical possession do not disappear upon the death of the purchaser. The administrator of the estate steps into the shoes of the late father to claim the land. b. When the Clock Starts. For an incomplete sale transaction, the 12-year statutory clock under the Limitation of Actions Act starts running immediately after the nal payment is made. At that exact moment, the seller's permission expires, and the buyer's occupation becomes legally "adverse". (c) Acts of Possession, the courts of law have rejected the argument that a family must sleep on the land daily to prove possession. Acts like building a home, planting trees, fencing and controlling access are sucient proof of animus possidendi (intent to possess). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2080/eng@2026-10-02 8

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33. The respondent claimed that the respondent’s possession was disrupted, a fact he claimed was admitted by PW1 during cross- examination. The doctrine of adverse possession operates strictly on the statutory 12-year limitation clock under Section 7 of the Limitation of Actions Act. This Court has repeatedly claried that stopping time from running requires a decisive, positive, and legally eective assertion of title by the registered owner, or a formal admission by the occupant. Informal or passive measures do not interrupt the limitation period. (See M’Riria & 5 Others vs. Muthomi (Civil Appeal 253 of 2019) [2025] KECA 951 (KLR) (4 April 2025) (Judgment.) Time can only be stopped by two main methods: (a) assertion of right by the owner or (b) admission of right by the adverse possessor. 34. This Court in William Gatuhi Murathe vs. Gakuru Gathimbi [1998] KECA 26 held that the ling of a suit for the recovery of land or an eviction order immediately stops time from running. The court noted that ling a suit is the legally sensible step to take, preventing landowners from resorting to violence to dislodge an occupant. In M'Riria & 5 Others vs. Muthomi [2025] KECA 951, this Court rearmed that time ceases to run under the Limitation of Actions Act the moment the owner takes legal proceedings or makes an eective entry onto the land. 35. If the owner does not le a suit, they must physically and eectively take back the land. In Walekhwa vs. Olunga & 2 Others [2026] KECA 1424, this Court armed that time stops running when the owner takes eective steps via physical dispossession or when the adverse possessor makes an unambiguous admission. A merely formal or eeting entry is insucient; it must be an actual, eective resumption of possession that breaks the occupant’s exclusivity. A reading of the above decisions clearly leave no doubt that the alleged “admission” by PW1 under intense cross-examination that the respondents had ceased occupying the suit land viewed against his consistent evidence in chief and the other witnesses and in absence of evidence by the appellants that they had taken possession after the deceased’s death or later leaves no doubt that that the appellants assertion does not meet the threshold for proving regaining possession stated in the above cited authorities. Accordingly, we agree with the trial court that the late Kandie’s family were in actual possession and use of the suit land from the year 1982, up to 2002 and thereafter. 36. Regarding the absence of a written sale agreement, we entirely agree with the trial court’s interpretation and application of the proviso to Section 3 (3) of the Law of Contract Act to this case. We say no more. 37. The appellant argues that the respondents did not attach an abstract of title to their originating summons and it is urging us to nd that the omission was fatal to their case. This argument, attractive as it is, is otiose and unsustainable for two reasons. One, at paragraph 16 of the judgment, the learned judge stated “Parties however, by consent, produced copy of Title LR No.9726 (Original No.4894/1 and 4825-(PExhibit 9 being notication of approval).” This excerpt from the judgment eectively extinguishes the said argument. The consent cured the omission (if any). 38. In any event, even if the parties had not consented, under our law, an application seeking adverse possession must ideally include an abstract of title (or ocial certicate of search) to positively identify the suit land and the registered proprietor. This procedural rule is governed by Order 37, Rule 7 (2) of the Civil Procedure Rules, 2010. However, this Court has established that failing to attach an abstract of title at the time of ling an application for adverse possession is a curable procedural irregularity and is not fatal to the claim. This Court in David Muturi Migwi vs. Sally Jemeli Korir & Another [2018] KECA held that failing to annex a certied extract of title is merely a procedural irregularity that can be cured at any stage of the proceedings. Oral evidence establishing the land's identity and occupation can suce to maintain the claim. In this case, a copy of the title was produced in addition to the application for consent of the land control board, the approvals and consents mentioned earlier which clearly identify the land. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2080/eng@2026-10-02 9

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39. Lastly, the appellant submitted that the land pleaded in the Originating Summons and in all the adavits and witness statements led by the respondent was land LR No. 9726. However, during PW7's oral testimony in court, he claimed that the land was LR No. 9726/1. Subsequently, the respondents sought to review the same judgment and introduce the correct title. This argument is being raised before this Court for the rst time and in the appellant’s submissions. It was not averred in the reply to the originating summons or in any manner before the trial court. It was not canvassed and determined by the trial court. It is not raised in any of the grounds of appeal. It is a cardinal and well-settled principle of appellate practice that an appellate court is not a forum for raising new issues for the rst time. The Court of Appeal is conned to reviewing and adjudicating only upon matters of law or fact that were properly canvassed, litigated and determined by the trial court below. 40. Allowing a party to introduce entirely fresh arguments on appeal is viewed as an unfair litigation tactic that causes procedural prejudice, takes the opposing party by surprise and deprives the lower court of the opportunity to make an initial determination. This Court in Charles Kipkoech Leting vs. Express (K) Ltd & Another [2018] eKLR explicitly stated that an appellate court must operate within the strict boundary of what occurred in the trial court. When a matter ascends to the appellate stage, the court’s core mandate is to test the legal and factual reasoning of the trial judge based on the record. Litigants cannot treat the Court of Appeal as a platform for a "second trial" or an avenue to patch up gaps in how their case was originally presented. 41. By now it is evident that the totality of our ndings as discussed above is that this appeal is devoid of merit. Accordingly, we dismiss it with costs to the respondents and arm the trial court’s ndings in the impugned judgment delivered by Mulwa, J. on 15th October 2020 in Nakuru High Court Civil Suit No. 252 of 2007. The appellant shall pay the respondent the costs of this appeal and in the proceedings before the trial court. DATED AND DELIVERED AT NAKURU THIS 2ND DAY OF OCTOBER, 2026. J. MATIVO ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL AHMED ISSACK ................................ 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/2026/2080/eng@2026-10-02 10

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