KO
INTRODUCTION AND BACKGROUND
.“L aws are like cobwebs, which may catch small flies, but let
wasps and hornets break through.”
Navigating a disguised, misleading, or deceptive legal claim requires moral clarity and resolve. These Powerful words from historical figures and legal thinkers like Abraham Lincoln, Clarence Darrow, and Martin Luther King Jr. offer profound inspiration to unmask deception and uphold genuine truth.
1. The 1 st , 2 nd and 3 rd Respondents herein filed/commenced the instant suit vide amended plaint dated 5 th April 2022 ; and wherein the respondents sought for the following reliefs:
(a) Declaration that the Plaintiffs [now the respondent] have been in occupation and or user of land parcel number West Kasipul/Konyango Kokal/1303 (now West Kasipul/Konyango Kokal/2366) for over 12 years.
(b) A declaration that the defendants’ rights over the said land parcel has been extinguished.
(c) A declaration that the sub-division of West Kasipul/Konyango Kokal/1478 and transfer and registration of the defendants as owners of land parcel West Kasipul/Konyango Kokal/2366 was done unlawfully, illegally and un-procedurally and therefore null and void.
(d) An order for the cancelation of the registration of the defendants as the owners of land parcel number West Kasipul/Konyango Kokal/2366 and have the said land parcel revert back into the name of Willis John Akumu – Deceased.
(e) An order of permanent injunction restraining the defendants either by themselves, their agents, representatives, servants and or any other person authorized by them from trespassing, encroaching, selling, transferring, disposing, evicting, demolishing the houses therein and or interfering with the plaintiffs and or their tenants occupation and or possession of land parcel number West Kasipul/Konyango Kokal/2366.
(f) Damages for trespass and destruction of property.
(g) Costs of the suit.
(h) Any other or further relief the court fits deem to award.
2. The suit by and on behalf of the Respondents were heard and disposed of vide judgment rendered on the 2 nd December 2024 by the Learned Senior Principal Magistrate.Pertinently, the Learned Senior Principal Magistrate found and held that the respondents have proved their claim to the requisite standard since they have been in occupation of West Kasipul/Konyango Kokal/2366 . In this regard, the respondents’ suit was allowed as per the prayers in the amended plaint.
3. Aggrieved and dissatisfied with the judgment and consequential decree, the Appellant filed the memorandum of appeal dated 29 th December, 2024 and in respect of which the Appellant has highlighted a plethora of grounds.
4. For coherence, the Appellant has raised the following grounds:
(i) The honourable trial court errored in law and in fact in presiding over and determining a suit premised on a claim of prescriptive rights of adverse possession that he has no jurisdiction over.
(ii) The honourable trial court errored in law and in fact in failing to address the application of the principles of adverse possession to the evidence tendered by the respondents thereby arriving at a conclusion that is n ot at all premised on a ny known law, fact or evidence available on record.
(iii) The Learned trial Magistrate’s decision is irreconcilable with both the evidence and facts presented by both parties.
(iv) The Learned trial Magistrate did not at all consider the evidence of the defendants and erroneously failed to note that the plaintiffs had not met their burden of proof.
(v) The decision of the Learned trial Magistrate is bad precedent and should be set aside to preserve the sanctity of the Kenyan law and due process.
(vi) The Learned trial Magistrate errored in law in awarding damages to the plaintiffs that were neither pleaded nor proofed and that are grotesquely exaggerated.
5. The Appellant requested the appellant court to:-
a) Allows the appeal with costs.
b) Set aside the judgment of the trial court and dismiss the plaintiffs’ case in the lower court with costs.
6. The Appeal beforehand was subjected to the usual directions in accordance with provisions of Order 42 Rule 13 of the Civil Procedure Rules, 2010. To this end, the advocates for the parties covenanted to canvass and dispose of the appeal by way of written submissions. In this regard, the court proceeded to and circumscribed the timelines for the filing and exchange of the submissions. .
PARTIES’ SUBMISSIONS:
7. The Appellants’ Counsel adopted and reiterated the grounds contained at the foot of the memorandum of appeal. The Respondents on the other hand adopted the evidence that was tendered before the lower court and thereafter prayed that the appeal be dismissed.8. Counsel for the Appellant goes on to state that the defence case was that the court had no jurisdiction advancing a claim for adverse possession; that the pleadings by way of plaint was wrong; that they raised a PO on Jurisdiction which was dismissed with costs; that in its judgment the trial magistrate serialised the issues for determination which were as follows
a) if a declaration can be made that the Plaintiff has been in occupation and use of land parcel number West Kasipul/ Konyango/Kokal/2366,
b) if a declaration can be made whether the right of the parcels are extinguished,
c) if an order of injunction can be issued against the Defendants, if the plaintiffs can pay general damages for trespass.
d) The trial court then proceeded to enter judgment in tandem with the framed issues.
8. It is the Appellants view that the trial Magistrate agreed with the Respondent’s position that they had acquired prescriptive rights over the suit property
9. In the supplementary submissions, Counsel reiterates that the Amended Plaint, they sought prayer one(1) whose general and specific scope was a declaration that they had acquired the suit parcel as shown in the decree; on that basis, they sought damages for trespass and a permanent injunction which were equally granted; that in their submissions before the lower court, they dedicated 3 pages, from pages 87 to 90, to demonstrate how the trial court had jurisdiction to entertain their claim for adverse possession ,and that ,they had made a sufficient case for the grant of that order; that they never produced any sale agreement to mount a claim for a purchaser’s interest ; not a title deed was produced to claim a registered owner’s interest; that the current submissions by the respondents herein are not candid, that every suit must have a cause of action and , that the cause of action for the suit that gave rise to the 1st declaration that the trial court made that the plaintiffs have been in possession for a period more than 12 years Adverse Possession.
12. The respondents Counsel ,on the other hand, states that the trial court was seized with jurisdiction to issue declarations that the respondent had been in occupation of the suit land parcel for over 12 years; that the sub-division and transfer of the land parcel number West Kasipul/Konyango Kokal/2366 was done unlawfully, illegally, an order for the cancelation of the registration of the appellants as the owners of the suit land parcel and have the same revert back to the name of the deceased, permanent orders of injunction and damages were well within the court jurisdiction. Counsel concurs with the appellants submissions that as per the court of appeal decision in the case of Sugawara but qualifies by saying that in the amended plaint before the trial court the respondents were not claiming the title to the suit land parcel by adverse possession but for the said title to be revoked. Counsel has made a spirited attempt to distinguish the Sugawara case where the appellant was seeking to be registered as the owner of the said land parcels by adverse possession, and states that their issue is different.
13. He goes onto state that courts have said that it is when one is seeking for a title in a claim by adverse possession then you have to go to the High Court for an order to be registered as adverse possessor. He has referred to Nairobi Civil Appeal number 6 of 2015, GULAM MIRIAM NOORDIN -vs- JULIUS CHARO KARISA where the court stated thus :
“ By dint of section 17 of the Act the appellant’s title to the suit property was extinguished and by section 38 the respondent was entitled to 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” and that the Court of Appeal in the case of MWAGANDI V LEWA (Civil Appeal E004 of 2022) [2025] KECA 1036 (KLR) (5 June 2025) (Judgment)stated in paragraph 29 as follows:
“Section 38[1] of the Limitation of Actions Act in this regard also expressly provides that a person claiming to be so entitled may apply to the court for an order that he or she be registered in place of the person then registered as the owner of the land.”
14. He continues to state that judgment is very clear that the respondents have been in occupation and use of the suit land parcel which doesn’t mean that they have acquired the suit land parcel by adverse possession ;that no such prayer was sought in court and it is a known principle of law that court will never granted a prayer which has not been sought by the parties unless otherwise ;that the Learned magistrate did not make any orders that the rights of the defendants have been extinguished with regard to the suit land parcel ;that the trial court had jurisdiction to hear and determine the matter that was before the court, and, therefore ,this appeal lacks merit and should be dismissed with costs; that the court also found that the plaintiffs were rightly in possession of the suit land parcel ;that the deceased had acquired the land parcel but transfer to the appellants was done un-procedurally which was perfectly within the court jurisdiction ;that the appellants have not challenged this in their submissions ; that appellants admitted that the land was in the name of the deceased before transfer and the process was not done in compliance with the law and, finally , that trial court was right in finding that the respondents had proved their case on a balance of probability as required by the law.
ISSUES FOR DETERMINATION:
15. Having reviewed the pleadings filed herein Amended plaint dated 5 th April 2022, the defence, the evidence tendered before the trial court and upon consideration of the written submissions filed on behalf of the parties and thus merits determination,
16. The issues for determination are dissected into Four(4) issues:
(a) What was the nature of the claim or cause of action that was placed before the Learned Trial Magistrate for determination?
(b) Whether the Learned trial magistrate framed and properly addressed the issues for determination
(c) Whether the court was seized with Jurisdiction to entertain the dispute and whether the Judgment should be upheld.
(d) Whether the trial court erred in awarding damages for tresspass
ANALYSIS AND DETERMINATION
18. The duty of this Court as a first appellate court is to make up its own mind not disregarding the judgment appealed from but weighing and considering and not striking and overruling it if on full consideration the court comes to the conclusion that the judgment is wrong.
19. This Court therefore has a duty to re-evaluate the evidence before the lower Court in its entirety and the subsequent decision of the Court and reach its own decision on the correctness of the decision of the lower Court taking into account the arguments, if any, of the parties in the appeal (Selle and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123) DECISION:
(a)What was the nature of the claim or cause of action that was
placed before the Learned Trial Magistrate for determination?
20. A cause of action is a kind of legal claim to be pleaded or
alleged in a plaint to start a suit
21. “A cause of action” is defined as, per the Black’s Law
Dictionary as: “ A group of operative facts giving rise to
one or more bases for suing; a factual situation that
entitled one person to obtain a remedy in court from
another person
22. It encompasses both the legal theory of the wrong alleged to
have been suffered and the remedy which a Plaintiff seeks
from court. It connotes every fact which would be
necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgement of the court.
23. It does not comprise every piece of evidence which is
necessary to prove each fact. A party must show that he
enjoyed a right which is protected by statute, common law
or equity, that that right was violated and that the defendant
is responsible for such violation to entitle him to the reliefs .
(See Tororo Cement Co. Ltd vs Frokina International Ltd SCCA No. 2 of 2001). and Glady Nduku Nthuki
Vs.Letshego Kenya & Anor, High Court Civil Suit No. 007
of 2021 )
24. To find out whether a cause of action exists against the
Respondent the court is obligated to consider a party’s
Pleading
25. Order 2 rule 1 of the Civil Procedure Rules states that; ’
Every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of a cause of action
but nevertheless, the Plaintiff may relinquish a portion of
his claim .
26. The Supreme Court of Uganda considered the requirement for necessary
facts to constitute a cause of action in the case of Attorney General V
MajorGeneralDavid Sejusa (formerly known as Tinyefunza) Constitutional
appeal No. 1 of 1997 in the Judgment of Wambuzi, C. J Page 18 – 19
“On the authorities referred to us, I find useful the definition given by Mulla on the Indian Code of Civil Procedure, Volume 1, and 14th Edition at page 206. The learned author says:
A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. …. But it has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It is a media upon which the plaintiff asks the court to arrive at a conclusion in his favour. The cause of action must be antecedent to the institution of the suit.” (Emphasis added)
27. Last, but not least is the East African Court of Appeal case of Sullivan vs. Ali Mohammed 1959 E.A 239 where it was held that the plaint must allege all the necessary facts that establish the cause of action. Per Windham JA:
… The plaint must allege all facts necessary to establish the cause of action. This fundamental rule of pleading would be nullified if it were to be held that a necessary fact not pleaded must be implied because otherwise another necessary fact that was pleaded could not be true.
28. I once again recapitulate the wording and prayers sought by the Respondent in the amended plaint as hereunder:
a. Declaration that the Plaintiffs [now the respondent] have been in occupation and or user of land parcel number West Kasipul/Konyango Kokal/1303 (now West Kasipul/Konyango Kokal/2366) for over 12 years.
b. A declaration that the defendants’ rights over the said land parcel has been extinguished.
c. A declaration that the sub-division of West Kasipul/Konyango Kokal/1478 and transfer and registration of the defendants as owners of land parcel West Kasipul/Konyango Kokal/2366 was done unlawfully, illegally and un-procedurally and therefore null and void.
d. An order for the cancelation of the registration of the defendants as the owners of land parcel number West Kasipul/Konyango Kokal/2366 and have the said land parcel revert back into the name of Willis John Akumu – Deceased.
e. An order of permanent injunction restraining the defendants either by themselves, their agents, representatives, servants and or any other person authorized by them from trespassing encroaching,selling,transferring,disposing, evicting, demolishing the houses therein and or interfering with the plaintiffs and or their tenants occupation and or possession of land parcel number West Kasipul /Konyango Kokal/2366.
f. Damages for trespass and destruction of property.
g. Costs of the suit.
h. Any other or further relief the court fits deem to award
29. The amendment that was done brought in the Attorney
General as the 4 th Defendant, and in that regard, the
plaintiffs introduced an order of cancelation not as an
alternative prayer but among the major reliefs that were
sought from court.
30. To successfully claim for adverse possession the claimant must demonstrate that his or her claim meets the following requirement
a. Continuous use
b. Hostile and adverse occupation of the property
c. Open and notorious possession
d. Actual possession
e. Exclusive use
36. JA Pye (Oxford) Limited and Another v Graham and
Another (2002)3 ALL ER 856 held that to establish title
by adverse possession a person, who can be referred to as “
Squatter ” must be in possession without consent of the
registered proprietor for a period longer than the limitation
period under the limitation Act.
37. Adverse possession thus presupposes occupation of the
land without the permission of its owner or other lawful
justification. Therefore, however long the occupancy may
be, possession of land under a license is not adverse to the
interests of the landowner and the thereof cannot be
adverse . Black’s Law Dictionary(2 nd Edition)
38. We also need to understand what a declaratory suit is. A
declaratory suit is a legal action brought to court seeking to
obtain a judicial declaration of the rights, duties or status
of the parties involved without seeking any immediate
enforcement ostensibly to clarify legal rights and
obligations with a view of resolving issues relating to
contracts, property rights and other civil matters
39. It can therefore be discerned or inferred from the pleadings
that the plaintiff had placed facts before the court and
ultimately invited the court to make a declaration for nothing
else but that that Plaintiffs were entitled to the suit land by
virtue of adverse possession and other reliefs flowed from the
main relief
40. In the case of odd jobs vs Mubia (1970) E.A 476 it was
held that; -
“ A court may base its dcision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision; on the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it"
41. The above decision was subsequently followed by the Court
of Appeal for Eastern Africa in the cases of Nkalubo vs.
Kibirige [1973] E.A. 102 and Railways Corporation vs. East
African Road Services Ltd. (1975) E.A. 128.
42. In the case Odoje v Mikolo [2025] KEELC 6645 the
Court in consideration of the above decisions made this
finding
“ Having pleaded some of the ingredients of adverse possession, without specifically pleading adverse possession, it must be deemed that the Respondent had desired the court to make its decision in line with the decision in Odd Jobs (supra)
It is therefore the finding of this court that though adverse possession was not expressly pleaded but some of the ingredients thereof having been raised at paragraph 4, the court could infer adverse possession.”
43. Counsel for the respondent submits that the respondents
were challenging subdivision and transfer of the suit
parcel in the names of the appellants. The claimants
were also claiming that they have been in occupation of
the suit land parcel for more than 40 years.
44. After referring to the reliefs sought in the amended plaint
he states thus :” it is the appellants claim that the matter
before the trial court was claim on prescriptive rights of
adverse possession and therefore the court did not have
the jurisdiction to preside the same.
My lord this is not true. The reliefs being sought by the
respondents were very much clear and speak for themselves
The respondents sought for several declarations but there
was no prayer they were entitled to the suit land parcel by
way of adverse possession. My lord it is our humble
submissions that as per section 9 of the Magistrates courts
Act the trail court had jurisdiction to grant the orders
sought.’
45.In his own word Counsel admits that the court has
jurisdiction to grant the orders sought, which in essence
implies orders to declaration that the plaintiffs have been
in use and occupation of the suit land for over 12years
and that the rights of the defendants are extinguished
46. A Suit for declaration is necessary only when defendant’s
denial of plaintiff’s title raises a cloud over the plaintiff’s title. A
simple denial by a trespasser or interloper does not constitute
raising a cloud over the title.
47. In property law, an interloper attempts to deny a plaintiff’s
title by challenging their ownership rights through a quiet title
action or ejectment law suit. The interloper basically claims
acquisition through long term occupation, which is in essence
a claim for adverse possession
48. Discovering a cause of action for adverse possession in pleadings involves evaluating discrete legal variables: continuous statutory time, open and notorious use, exclusive possession, hostile intent under a claim of right, and actual physical control without the owner's permission.
49. Pleading requirements require a plaintiff to state the date of hostile possession, allege facts satisfying all elements concurrently, pray for a declaration that the title of the original owner is extinguished and vested in the claimant
50. From the above it does not need a microscopic lens, rocket
science or any mathematical formula to establish the that the
plaintiff’s cause of action borders on adverse possession and
the remedy that the Plaintiff had sought for in the pleadings at
paragraph 6 ,7,7(a),8, 9 and 12(a) and b.
51. To drive the point home, at paragraph 6 the Plaintiffs state they have acquired an overriding interest over the suit land having been in occupation for more than 40 years ,that sometimes on 5 th December ,2017 the Defendants ‘caused the said land parcel to be transferred into their names and in particulars at paragraph iv and v the defendants attempted to take over the land when their claim had been extinguished, at paragraph 9 the defendants right to recover the suit property had expired by effluxion of time which is beyond 12 years period set out by the limitation of Actions Act.
52. The claim before court was for adverse possession though disguised as a claim made on behalf of the estate of Willis John Akumu yet they do not bring out their claim against the said estate.
53. Though counsel states that the claim was for cancellation of the title and the subdivision, the plaintiff have not elaborately stated on what grounds they want the title cancelled as set in pleadings however the main relief seeks for a declaration that the Defendant (Respondents) have been in occupation of the suit land for over 12 years
54. In ordinary parlance, relief is understood to be a redress or benefit especially equitable in nature such as an injunction or specific performance that a party asked before a Court. This may also to be termed as a remedy.
55. Similarly, in ordinary parlance we understand prayer to be a specific prayer or general prayer. But ultimately, prayer means prayer for a relief over specific or in general terms. Therefore, a prayer is a specific request to the Court for the relief to which he supposes himself entitled on the case made out.
56. The prayers in the amended plaint remained as in the original plaint save for one addition which never changed the reliefs sought for
57. This finding disposes of the 1 st issue for determination
b) Whether the Learned trial magistrate framed and properly
addressed the issue for determination
58. Issues for determination act as road map for a case, in essence form a specific and factual questions a court must answer to resolve a dispute
59. To understand the issue for determination we need first to, understand what an issue is.
60. The Supreme court in Nigeria in the case of Eke vs
Okwaranyia (2001)12 NWLR (PT726) 181 has this to say:
I have no doubt that the court below misconceived the purport of, ‘an issue’ and ‘joinder of issues “This is manifest in the contradictory posture of that court. An issue is a disputed point or question to which parties in an action have narrowed their several allegations and upon which they desire to obtain a decision of the court .The issue may be of ‘ law ‘ or ‘fact’. In one breath the court below said there was a joinder of issues and in another it said that the defendant had evasive denial of the material issues .A joinder of issues operates as a denial of every material allegation of fact in the statement of claim or in the proceeding leading which is not expressly admitted.
61. It is usually the fact in issue that forms the issue for determination in a final written address. The issue for determination must be weighty and compelling
62. The issue for determination which the court will resolve in its judgment is fixed in the pleadings. The formulation of issues for determination must have recourse to the issues in the pleadings in order to know the life wire and bone of contention between the parties.
63. It is by now well settled that parties are bound by their pleadings. Pleadings are the bedrock upon which all the proceedings commence.
64. The function of pleadings is to give fair notice of the case which has to be met, so that the opposing party may direct his or her evidence to the issue disclosed by them ( see Esso Petroleum Company Limited v. Southport Corporation [1956 ] AC 218).
65. The rules on pleadings require the parties to set out fully the nature of the question to be decided by stating the facts upon which the parties rely and the orders which they seek, otherwise the courts risk embarking on a roving enquiry.
66. A departure occurs where a party introduces in evidence something new, separate and distinct, which is not a mere variation, modification or development of the facts that were pleaded ( see Waghorn v. Wimpey (George)and Co. [1969] 1 WLR 1764).
67. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. The test is whether the opposing party's conduct of the case would have been any different had the adversary pleaded the impugned aspect of their case. The question is if the allegations made in evidence had been made in the pleadings in the first place, the opposing party's preparation of the case, and conduct of the trial, would have been any different.
68. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, A C Mrima stated as follows: -
“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR
69. The Supreme Court of Kenya in its ruling on inter alia
scrutiny in the case of Raila Amolo Odinga & Another vs.
IEBC & 2 others (2017) eKLR found and held as follows in
respect to the essence of pleadings in an election petition: -
“ In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them.
70. In the Judgement the court framed the issues for determination based on the prayers and two issues on adverse possession are notable and these are:
1. If the defendants irregularly and unlawfully transferred the suit to themselves
2. If the title deed to the suit land can be recalled and registered in the name of WILLIAM JOHN AKUMU deceased
3. If a declaration can be made that the plaintiff has
been in occupation and use of the land parcel
4. If a declaration can be made that the rights of the
defendants been extinguished
5 If an order of injunction can be issued against the
Defendants
6. if the defendants can pay general damages for
tresspass
71. However, while writing the Judgment the trial Magistrate omitted to address issue number 3 and 4 at the tail end of the judgment the court avoided mentioning the issues of Adverse possession and declaring whether the rights of the Appellants were extinguished .
72. In the Tanzanian case of Godwin Kashauglin & Others
versus John M. Nchende TZ HCA 20/2020 it was held a
failure to frame issues was held to be fatal to the trial and
led to quashing of the lower Court’s verdict.
73. Under Order 15 Rule 2 of the Civil Procedure Rules a court may frame issues
[...truncated]
INTRODUCTION AND BACKGROUND
.“L aws are like cobwebs, which may catch small flies, but let
wasps and hornets break through.”
Navigating a disguised, misleading, or deceptive legal claim requires moral clarity and resolve. These Powerful words from historical figures and legal thinkers like Abraham Lincoln, Clarence Darrow, and Martin Luther King Jr. offer profound inspiration to unmask deception and uphold genuine truth.
1. The 1 st , 2 nd and 3 rd Respondents herein filed/commenced the instant suit vide amended plaint dated 5 th April 2022 ; and wherein the respondents sought for the following reliefs:
(a) Declaration that the Plaintiffs [now the respondent] have been in occupation and or user of land parcel number West Kasipul/Konyango Kokal/1303 (now West Kasipul/Konyango Kokal/2366) for over 12 years.
(b) A declaration that the defendants’ rights over the said land parcel has been extinguished.
(c) A declaration that the sub-division of West Kasipul/Konyango Kokal/1478 and transfer and registration of the defendants as owners of land parcel West Kasipul/Konyango Kokal/2366 was done unlawfully, illegally and un-procedurally and therefore null and void.
(d) An order for the cancelation of the registration of the defendants as the owners of land parcel number West Kasipul/Konyango Kokal/2366 and have the said land parcel revert back into the name of Willis John Akumu – Deceased.
(e) An order of permanent injunction restraining the defendants either by themselves, their agents, representatives, servants and or any other person authorized by them from trespassing, encroaching, selling, transferring, disposing, evicting, demolishing the houses therein and or interfering with the plaintiffs and or their tenants occupation and or possession of land parcel number West Kasipul/Konyango Kokal/2366.
(f) Damages for trespass and destruction of property.
(g) Costs of the suit.
(h) Any other or further relief the court fits deem to award.
2. The suit by and on behalf of the Respondents were heard and disposed of vide judgment rendered on the 2 nd December 2024 by the Learned Senior Principal Magistrate.Pertinently, the Learned Senior Principal Magistrate found and held that the respondents have proved their claim to the requisite standard since they have been in occupation of West Kasipul/Konyango Kokal/2366 . In this regard, the respondents’ suit was allowed as per the prayers in the amended plaint.
3. Aggrieved and dissatisfied with the judgment and consequential decree, the Appellant filed the memorandum of appeal dated 29 th December, 2024 and in respect of which the Appellant has highlighted a plethora of grounds.
4. For coherence, the Appellant has raised the following grounds:
(i) The honourable trial court errored in law and in fact in presiding over and determining a suit premised on a claim of prescriptive rights of adverse possession that he has no jurisdiction over.
(ii) The honourable trial court errored in law and in fact in failing to address the application of the principles of adverse possession to the evidence tendered by the respondents thereby arriving at a conclusion that is n ot at all premised on a ny known law, fact or evidence available on record.
(iii) The Learned trial Magistrate’s decision is irreconcilable with both the evidence and facts presented by both parties.
(iv) The Learned trial Magistrate did not at all consider the evidence of the defendants and erroneously failed to note that the plaintiffs had not met their burden of proof.
(v) The decision of the Learned trial Magistrate is bad precedent and should be set aside to preserve the sanctity of the Kenyan law and due process.
(vi) The Learned trial Magistrate errored in law in awarding damages to the plaintiffs that were neither pleaded nor proofed and that are grotesquely exaggerated.
5. The Appellant requested the appellant court to:-
a) Allows the appeal with costs.
b) Set aside the judgment of the trial court and dismiss the plaintiffs’ case in the lower court with costs.
6. The Appeal beforehand was subjected to the usual directions in accordance with provisions of Order 42 Rule 13 of the Civil Procedure Rules, 2010. To this end, the advocates for the parties covenanted to canvass and dispose of the appeal by way of written submissions. In this regard, the court proceeded to and circumscribed the timelines for the filing and exchange of the submissions. .
PARTIES’ SUBMISSIONS:
7. The Appellants’ Counsel adopted and reiterated the grounds contained at the foot of the memorandum of appeal. The Respondents on the other hand adopted the evidence that was tendered before the lower court and thereafter prayed that the appeal be dismissed.8. Counsel for the Appellant goes on to state that the defence case was that the court had no jurisdiction advancing a claim for adverse possession; that the pleadings by way of plaint was wrong; that they raised a PO on Jurisdiction which was dismissed with costs; that in its judgment the trial magistrate serialised the issues for determination which were as follows
a) if a declaration can be made that the Plaintiff has been in occupation and use of land parcel number West Kasipul/ Konyango/Kokal/2366,
b) if a declaration can be made whether the right of the parcels are extinguished,
c) if an order of injunction can be issued against the Defendants, if the plaintiffs can pay general damages for trespass.
d) The trial court then proceeded to enter judgment in tandem with the framed issues.
8. It is the Appellants view that the trial Magistrate agreed with the Respondent’s position that they had acquired prescriptive rights over the suit property
9. In the supplementary submissions, Counsel reiterates that the Amended Plaint, they sought prayer one(1) whose general and specific scope was a declaration that they had acquired the suit parcel as shown in the decree; on that basis, they sought damages for trespass and a permanent injunction which were equally granted; that in their submissions before the lower court, they dedicated 3 pages, from pages 87 to 90, to demonstrate how the trial court had jurisdiction to entertain their claim for adverse possession ,and that ,they had made a sufficient case for the grant of that order; that they never produced any sale agreement to mount a claim for a purchaser’s interest ; not a title deed was produced to claim a registered owner’s interest; that the current submissions by the respondents herein are not candid, that every suit must have a cause of action and , that the cause of action for the suit that gave rise to the 1st declaration that the trial court made that the plaintiffs have been in possession for a period more than 12 years Adverse Possession.
12. The respondents Counsel ,on the other hand, states that the trial court was seized with jurisdiction to issue declarations that the respondent had been in occupation of the suit land parcel for over 12 years; that the sub-division and transfer of the land parcel number West Kasipul/Konyango Kokal/2366 was done unlawfully, illegally, an order for the cancelation of the registration of the appellants as the owners of the suit land parcel and have the same revert back to the name of the deceased, permanent orders of injunction and damages were well within the court jurisdiction. Counsel concurs with the appellants submissions that as per the court of appeal decision in the case of Sugawara but qualifies by saying that in the amended plaint before the trial court the respondents were not claiming the title to the suit land parcel by adverse possession but for the said title to be revoked. Counsel has made a spirited attempt to distinguish the Sugawara case where the appellant was seeking to be registered as the owner of the said land parcels by adverse possession, and states that their issue is different.
13. He goes onto state that courts have said that it is when one is seeking for a title in a claim by adverse possession then you have to go to the High Court for an order to be registered as adverse possessor. He has referred to Nairobi Civil Appeal number 6 of 2015, GULAM MIRIAM NOORDIN -vs- JULIUS CHARO KARISA where the court stated thus :
“ By dint of section 17 of the Act the appellant’s title to the suit property was extinguished and by section 38 the respondent was entitled to 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” and that the Court of Appeal in the case of MWAGANDI V LEWA (Civil Appeal E004 of 2022) [2025] KECA 1036 (KLR) (5 June 2025) (Judgment)stated in paragraph 29 as follows:
“Section 38[1] of the Limitation of Actions Act in this regard also expressly provides that a person claiming to be so entitled may apply to the court for an order that he or she be registered in place of the person then registered as the owner of the land.”
14. He continues to state that judgment is very clear that the respondents have been in occupation and use of the suit land parcel which doesn’t mean that they have acquired the suit land parcel by adverse possession ;that no such prayer was sought in court and it is a known principle of law that court will never granted a prayer which has not been sought by the parties unless otherwise ;that the Learned magistrate did not make any orders that the rights of the defendants have been extinguished with regard to the suit land parcel ;that the trial court had jurisdiction to hear and determine the matter that was before the court, and, therefore ,this appeal lacks merit and should be dismissed with costs; that the court also found that the plaintiffs were rightly in possession of the suit land parcel ;that the deceased had acquired the land parcel but transfer to the appellants was done un-procedurally which was perfectly within the court jurisdiction ;that the appellants have not challenged this in their submissions ; that appellants admitted that the land was in the name of the deceased before transfer and the process was not done in compliance with the law and, finally , that trial court was right in finding that the respondents had proved their case on a balance of probability as required by the law.
ISSUES FOR DETERMINATION:
15. Having reviewed the pleadings filed herein Amended plaint dated 5 th April 2022, the defence, the evidence tendered before the trial court and upon consideration of the written submissions filed on behalf of the parties and thus merits determination,
16. The issues for determination are dissected into Four(4) issues:
(a) What was the nature of the claim or cause of action that was placed before the Learned Trial Magistrate for determination?
(b) Whether the Learned trial magistrate framed and properly addressed the issues for determination
(c) Whether the court was seized with Jurisdiction to entertain the dispute and whether the Judgment should be upheld.
(d) Whether the trial court erred in awarding damages for tresspass
ANALYSIS AND DETERMINATION
18. The duty of this Court as a first appellate court is to make up its own mind not disregarding the judgment appealed from but weighing and considering and not striking and overruling it if on full consideration the court comes to the conclusion that the judgment is wrong.
19. This Court therefore has a duty to re-evaluate the evidence before the lower Court in its entirety and the subsequent decision of the Court and reach its own decision on the correctness of the decision of the lower Court taking into account the arguments, if any, of the parties in the appeal (Selle and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123) DECISION:
(a)What was the nature of the claim or cause of action that was
placed before the Learned Trial Magistrate for determination?
20. A cause of action is a kind of legal claim to be pleaded or
alleged in a plaint to start a suit
21. “A cause of action” is defined as, per the Black’s Law
Dictionary as: “ A group of operative facts giving rise to
one or more bases for suing; a factual situation that
entitled one person to obtain a remedy in court from
another person
22. It encompasses both the legal theory of the wrong alleged to
have been suffered and the remedy which a Plaintiff seeks
from court. It connotes every fact which would be
necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgement of the court.
23. It does not comprise every piece of evidence which is
necessary to prove each fact. A party must show that he
enjoyed a right which is protected by statute, common law
or equity, that that right was violated and that the defendant
is responsible for such violation to entitle him to the reliefs .
(See Tororo Cement Co. Ltd vs Frokina International Ltd SCCA No. 2 of 2001). and Glady Nduku Nthuki
Vs.Letshego Kenya & Anor, High Court Civil Suit No. 007
of 2021 )
24. To find out whether a cause of action exists against the
Respondent the court is obligated to consider a party’s
Pleading
25. Order 2 rule 1 of the Civil Procedure Rules states that; ’
Every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of a cause of action
but nevertheless, the Plaintiff may relinquish a portion of
his claim .
26. The Supreme Court of Uganda considered the requirement for necessary
facts to constitute a cause of action in the case of Attorney General V
MajorGeneralDavid Sejusa (formerly known as Tinyefunza) Constitutional
appeal No. 1 of 1997 in the Judgment of Wambuzi, C. J Page 18 – 19
“On the authorities referred to us, I find useful the definition given by Mulla on the Indian Code of Civil Procedure, Volume 1, and 14th Edition at page 206. The learned author says:
A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. …. But it has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It is a media upon which the plaintiff asks the court to arrive at a conclusion in his favour. The cause of action must be antecedent to the institution of the suit.” (Emphasis added)
27. Last, but not least is the East African Court of Appeal case of Sullivan vs. Ali Mohammed 1959 E.A 239 where it was held that the plaint must allege all the necessary facts that establish the cause of action. Per Windham JA:
… The plaint must allege all facts necessary to establish the cause of action. This fundamental rule of pleading would be nullified if it were to be held that a necessary fact not pleaded must be implied because otherwise another necessary fact that was pleaded could not be true.
28. I once again recapitulate the wording and prayers sought by the Respondent in the amended plaint as hereunder:
a. Declaration that the Plaintiffs [now the respondent] have been in occupation and or user of land parcel number West Kasipul/Konyango Kokal/1303 (now West Kasipul/Konyango Kokal/2366) for over 12 years.
b. A declaration that the defendants’ rights over the said land parcel has been extinguished.
c. A declaration that the sub-division of West Kasipul/Konyango Kokal/1478 and transfer and registration of the defendants as owners of land parcel West Kasipul/Konyango Kokal/2366 was done unlawfully, illegally and un-procedurally and therefore null and void.
d. An order for the cancelation of the registration of the defendants as the owners of land parcel number West Kasipul/Konyango Kokal/2366 and have the said land parcel revert back into the name of Willis John Akumu – Deceased.
e. An order of permanent injunction restraining the defendants either by themselves, their agents, representatives, servants and or any other person authorized by them from trespassing encroaching,selling,transferring,disposing, evicting, demolishing the houses therein and or interfering with the plaintiffs and or their tenants occupation and or possession of land parcel number West Kasipul /Konyango Kokal/2366.
f. Damages for trespass and destruction of property.
g. Costs of the suit.
h. Any other or further relief the court fits deem to award
29. The amendment that was done brought in the Attorney
General as the 4 th Defendant, and in that regard, the
plaintiffs introduced an order of cancelation not as an
alternative prayer but among the major reliefs that were
sought from court.
30. To successfully claim for adverse possession the claimant must demonstrate that his or her claim meets the following requirement
a. Continuous use
b. Hostile and adverse occupation of the property
c. Open and notorious possession
d. Actual possession
e. Exclusive use
36. JA Pye (Oxford) Limited and Another v Graham and
Another (2002)3 ALL ER 856 held that to establish title
by adverse possession a person, who can be referred to as “
Squatter ” must be in possession without consent of the
registered proprietor for a period longer than the limitation
period under the limitation Act.
37. Adverse possession thus presupposes occupation of the
land without the permission of its owner or other lawful
justification. Therefore, however long the occupancy may
be, possession of land under a license is not adverse to the
interests of the landowner and the thereof cannot be
adverse . Black’s Law Dictionary(2 nd Edition)
38. We also need to understand what a declaratory suit is. A
declaratory suit is a legal action brought to court seeking to
obtain a judicial declaration of the rights, duties or status
of the parties involved without seeking any immediate
enforcement ostensibly to clarify legal rights and
obligations with a view of resolving issues relating to
contracts, property rights and other civil matters
39. It can therefore be discerned or inferred from the pleadings
that the plaintiff had placed facts before the court and
ultimately invited the court to make a declaration for nothing
else but that that Plaintiffs were entitled to the suit land by
virtue of adverse possession and other reliefs flowed from the
main relief
40. In the case of odd jobs vs Mubia (1970) E.A 476 it was
held that; -
“ A court may base its dcision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision; on the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it"
41. The above decision was subsequently followed by the Court
of Appeal for Eastern Africa in the cases of Nkalubo vs.
Kibirige [1973] E.A. 102 and Railways Corporation vs. East
African Road Services Ltd. (1975) E.A. 128.
42. In the case Odoje v Mikolo [2025] KEELC 6645 the
Court in consideration of the above decisions made this
finding
“ Having pleaded some of the ingredients of adverse possession, without specifically pleading adverse possession, it must be deemed that the Respondent had desired the court to make its decision in line with the decision in Odd Jobs (supra)
It is therefore the finding of this court that though adverse possession was not expressly pleaded but some of the ingredients thereof having been raised at paragraph 4, the court could infer adverse possession.”
43. Counsel for the respondent submits that the respondents
were challenging subdivision and transfer of the suit
parcel in the names of the appellants. The claimants
were also claiming that they have been in occupation of
the suit land parcel for more than 40 years.
44. After referring to the reliefs sought in the amended plaint
he states thus :” it is the appellants claim that the matter
before the trial court was claim on prescriptive rights of
adverse possession and therefore the court did not have
the jurisdiction to preside the same.
My lord this is not true. The reliefs being sought by the
respondents were very much clear and speak for themselves
The respondents sought for several declarations but there
was no prayer they were entitled to the suit land parcel by
way of adverse possession. My lord it is our humble
submissions that as per section 9 of the Magistrates courts
Act the trail court had jurisdiction to grant the orders
sought.’
45.In his own word Counsel admits that the court has
jurisdiction to grant the orders sought, which in essence
implies orders to declaration that the plaintiffs have been
in use and occupation of the suit land for over 12years
and that the rights of the defendants are extinguished
46. A Suit for declaration is necessary only when defendant’s
denial of plaintiff’s title raises a cloud over the plaintiff’s title. A
simple denial by a trespasser or interloper does not constitute
raising a cloud over the title.
47. In property law, an interloper attempts to deny a plaintiff’s
title by challenging their ownership rights through a quiet title
action or ejectment law suit. The interloper basically claims
acquisition through long term occupation, which is in essence
a claim for adverse possession
48. Discovering a cause of action for adverse possession in pleadings involves evaluating discrete legal variables: continuous statutory time, open and notorious use, exclusive possession, hostile intent under a claim of right, and actual physical control without the owner's permission.
49. Pleading requirements require a plaintiff to state the date of hostile possession, allege facts satisfying all elements concurrently, pray for a declaration that the title of the original owner is extinguished and vested in the claimant
50. From the above it does not need a microscopic lens, rocket
science or any mathematical formula to establish the that the
plaintiff’s cause of action borders on adverse possession and
the remedy that the Plaintiff had sought for in the pleadings at
paragraph 6 ,7,7(a),8, 9 and 12(a) and b.
51. To drive the point home, at paragraph 6 the Plaintiffs state they have acquired an overriding interest over the suit land having been in occupation for more than 40 years ,that sometimes on 5 th December ,2017 the Defendants ‘caused the said land parcel to be transferred into their names and in particulars at paragraph iv and v the defendants attempted to take over the land when their claim had been extinguished, at paragraph 9 the defendants right to recover the suit property had expired by effluxion of time which is beyond 12 years period set out by the limitation of Actions Act.
52. The claim before court was for adverse possession though disguised as a claim made on behalf of the estate of Willis John Akumu yet they do not bring out their claim against the said estate.
53. Though counsel states that the claim was for cancellation of the title and the subdivision, the plaintiff have not elaborately stated on what grounds they want the title cancelled as set in pleadings however the main relief seeks for a declaration that the Defendant (Respondents) have been in occupation of the suit land for over 12 years
54. In ordinary parlance, relief is understood to be a redress or benefit especially equitable in nature such as an injunction or specific performance that a party asked before a Court. This may also to be termed as a remedy.
55. Similarly, in ordinary parlance we understand prayer to be a specific prayer or general prayer. But ultimately, prayer means prayer for a relief over specific or in general terms. Therefore, a prayer is a specific request to the Court for the relief to which he supposes himself entitled on the case made out.
56. The prayers in the amended plaint remained as in the original plaint save for one addition which never changed the reliefs sought for
57. This finding disposes of the 1 st issue for determination
b) Whether the Learned trial magistrate framed and properly
addressed the issue for determination
58. Issues for determination act as road map for a case, in essence form a specific and factual questions a court must answer to resolve a dispute
59. To understand the issue for determination we need first to, understand what an issue is.
60. The Supreme court in Nigeria in the case of Eke vs
Okwaranyia (2001)12 NWLR (PT726) 181 has this to say:
I have no doubt that the court below misconceived the purport of, ‘an issue’ and ‘joinder of issues “This is manifest in the contradictory posture of that court. An issue is a disputed point or question to which parties in an action have narrowed their several allegations and upon which they desire to obtain a decision of the court .The issue may be of ‘ law ‘ or ‘fact’. In one breath the court below said there was a joinder of issues and in another it said that the defendant had evasive denial of the material issues .A joinder of issues operates as a denial of every material allegation of fact in the statement of claim or in the proceeding leading which is not expressly admitted.
61. It is usually the fact in issue that forms the issue for determination in a final written address. The issue for determination must be weighty and compelling
62. The issue for determination which the court will resolve in its judgment is fixed in the pleadings. The formulation of issues for determination must have recourse to the issues in the pleadings in order to know the life wire and bone of contention between the parties.
63. It is by now well settled that parties are bound by their pleadings. Pleadings are the bedrock upon which all the proceedings commence.
64. The function of pleadings is to give fair notice of the case which has to be met, so that the opposing party may direct his or her evidence to the issue disclosed by them ( see Esso Petroleum Company Limited v. Southport Corporation [1956 ] AC 218).
65. The rules on pleadings require the parties to set out fully the nature of the question to be decided by stating the facts upon which the parties rely and the orders which they seek, otherwise the courts risk embarking on a roving enquiry.
66. A departure occurs where a party introduces in evidence something new, separate and distinct, which is not a mere variation, modification or development of the facts that were pleaded ( see Waghorn v. Wimpey (George)and Co. [1969] 1 WLR 1764).
67. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. The test is whether the opposing party's conduct of the case would have been any different had the adversary pleaded the impugned aspect of their case. The question is if the allegations made in evidence had been made in the pleadings in the first place, the opposing party's preparation of the case, and conduct of the trial, would have been any different.
68. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, A C Mrima stated as follows: -
“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR
69. The Supreme Court of Kenya in its ruling on inter alia
scrutiny in the case of Raila Amolo Odinga & Another vs.
IEBC & 2 others (2017) eKLR found and held as follows in
respect to the essence of pleadings in an election petition: -
“ In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them.
70. In the Judgement the court framed the issues for determination based on the prayers and two issues on adverse possession are notable and these are:
1. If the defendants irregularly and unlawfully transferred the suit to themselves
2. If the title deed to the suit land can be recalled and registered in the name of WILLIAM JOHN AKUMU deceased
3. If a declaration can be made that the plaintiff has
been in occupation and use of the land parcel
4. If a declaration can be made that the rights of the
defendants been extinguished
5 If an order of injunction can be issued against the
Defendants
6. if the defendants can pay general damages for
tresspass
71. However, while writing the Judgment the trial Magistrate omitted to address issue number 3 and 4 at the tail end of the judgment the court avoided mentioning the issues of Adverse possession and declaring whether the rights of the Appellants were extinguished .
72. In the Tanzanian case of Godwin Kashauglin & Others
versus John M. Nchende TZ HCA 20/2020 it was held a
failure to frame issues was held to be fatal to the trial and
led to quashing of the lower Court’s verdict.
73. Under Order 15 Rule 2 of the Civil Procedure Rules a court may frame issues
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