Mwalimu & 6 others v Halal & another (Civil Appeal E036 of 2023) [2025] KECA 1186 (KLR) (4 July 2025) (Judgment)
Neutral citation:
[2025] KECA 1186 (KLR)
Republic of Kenya
Civil Appeal E036 of 2023
AK Murgor, KI Laibuta & GWN Macharia, JJA
July 4, 2025
Between
Athman Mwalimu
1st Appellant
Fadhili Mwalimu
2nd Appellant
Hafus Mwalimu
3rd Appellant
Abdulhakim Mwalimu
4th Appellant
Yusuf Mwalimu
5th Appellant
Miriam Mwalimu
6th Appellant
Omari Mwalimu
7th Appellant
and
Naran Ramji Halal
1st Respondent
Hirji Ramji Halal
2nd Respondent
(Being an appeal from the Judgment and Decree of the Environment and Land Court of Kenya at Mombasa (N. Matheka, J.) delivered on 22nd November 2022 in E.L.C Suit No. 370 of 2010 (O.S))
Judgment
1.The genesis of the instant appeal is the Originating Summons dated 25th October 2010 as amended formally on 12th February 2020 and orally on 12th October 2020. The Summons was taken out by the appellants against the respondents claiming adverse possession of title No. Mombasa Island Block XV/29, but which was later amended to read Block XV/31 (the suit property), on which stood a godown where the appellants operated a motor garage in the name and style of Mwalimu Autoworks under a tenancy agreement previously entered into between their deceased father, Mwalimu Fadhili, who died in 2005, and the then registered proprietor named Georgina Christian. In their Summons, the appellants posed the following questions for determination by the trial court:
2.The appellants’ Summons were supported by the annexed affidavit of Athumani Mwalimu, the 1st appellant, sworn on 25th October 2010 deposing to the grounds on which their Summons was taken out, namely: that their deceased father, Fadhili Mwalimu, had resided and carried on business on the suit premises for a period of over thirty (30) years before his demise; that they have been paying utility bills and land rates to the Municipal Council of Mombasa in their deceased father’s name for a period of over 30 years; that they have continuously and uninterruptedly lived on and carried out business on the suit premises for over 30 years; that they had met the legal requirement for entitlement to adverse possession of the suit property; and that it would be unjust, unconscionable and inhumane to deny them possession of the suit premises.
3.The 1st appellant’s supporting affidavit was sworn on his own behalf and on behalf of the other appellants, all of whom swore separate affidavits authorising him to depose to the matters aforesaid on their behalf.
4.In response to the appellants’ Summons, the 1st respondent filed a replying affidavit sworn on 15th March 2011 on his own behalf and on behalf of the 2nd respondent. The respondents’ case was that the appellants were strangers to them since the tenant to the suit premises was Mwalimu Fadhili (deceased); that the appellants had no capacity to take out the Summons on behalf of the deceased’s estate; that the respondents purchased the suit property on 10th January 2001 and a transfer effected in their favour on 1st February 2001; that the suit property comprised business premises in respect of which the appellants had never been in occupation as their tenants and, therefore, had no interest in the suit premises; and that, contrary to the appellants’ allegations, they were never in occupation of the suit property for a period of 30 years. They prayed that the Summons be dismissed with costs.
5.It is noteworthy that the appellants’ decision to orally amend its Summons to reflect the suit property as Mombasa Island Block XV/31 in place of the originally claimed Mombasa Island Block XV29, was followed by a consent order recorded on 4th February 2020 withdrawing their claim against the 1st respondent. For the avoidance of doubt, the consent order read as follows:
6.To our mind, the 3rd order that the suit “be converted to a plaint” was intended to facilitate the admission of oral evidence and cross- examination in proof of the competing claims as opposed to only affidavit evidence usually considered in proceedings founded on such Summons.
7.In its judgment dated 22nd November 2022, the ELC (N. A. Matheka, J.) dismissed the appellants’ Summons with costs to the respondents. According to the learned Judge:
8.Aggrieved by the learned Judge’s decision, the appellants moved to this Court on appeal on 8 grounds set out in their memorandum of appeal dated 8th March 2023 thus:1.That the learned Judge erred in law and in fact by not appreciating the Land Registrar’s evidence that the transfer was fraudulent.2.That the learned Judge erred in law and in fact by totally ignoring the compelling evidence of the Land Registrar as the custodian of government and land records.3.That the learned Judge erred in law and in fact in totally failing to mention or take into consideration the Land Registrar’s evidence.4.THAT the learned Judge erred in law and in fact by not finding that the transfer of the land was illegal and unlawful for non-payment of stamp duty.5.That the learned Judge erred in law and in fact by her failure to hold [that] the land was fraudulently transferred with conflicting two transfer forms filed at the registry on the same day.6.That the learned Judge erred in law and in fact by her failure to conclude that Mansur Satchu could not transfer property based on the Power of Attorney donated to Abdul Kasim Satchu which terminated on his death.7.That the learned Judge erred in law and in fact by her failure to find that the Plaintiffs had proved and brought evidence of fraud through the evidence of the Land Registrar8.That in totality the learned Judge erred in law and in fact by not appreciating the evidence in totality and her failure to evaluate the evidence as a whole resulted in error.”
9.A cursory look at the 8 grounds of appeal shows that the appellants essentially fault the learned Judge for: failing to find that the 2nd respondent acquired the suit property fraudulently; and for failing to consider the appellants’ evidence.
10.In support of the appeal, learned counsel for the appellants, M/s. Ambwere T. S. & Associates, filed written submissions and list of authorities dated 8th August 2023 followed by a supplementary list of authorities dated 3rd June 2024. In all, counsel cited 5 judicial authorities, namely: Dina Management Limited v County Government of Mombasa & 5 Others [2021] eKLR; [2023] KESC 30 (KLR), submitting that property acquired by fraud, forgery and unprocedurally cannot pass the test of integrity and the rule of law, and is not protected by the doctrine of indefeasibility; Sagoo & Another v Mwicigi & 3 Others [2022] KECA 83 (KLR) and Katende v Haridas & Company Limited (2008) EA 173, submitting that non-payment of stamp duty renders any transfer of title illegal, null and void; and Njonjo v Attorney General & 2 Others [2024] KECA 599 (KLR) where this Court highlighted the importance of documentary evidence in tracing the history of a title.
11.In rebuttal, learned counsel for the 2nd respondent, M/s. Gikandi & Company, filed written submissions, a list and bundle of authorities dated 23rd October 2023 citing 9 judicial authorities, namely: Eviline Karigu (Suing as Administratix of Estate of Late Muriungi M’Chuka alias Miriungu M’Gichuga) v M’Chabari Kinoro [2022] KEELC 1483 (KLR); Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR; Urmilla w/o Mahendra Shah v Barclays Bank International Ltd & Another [1979] eKLR; and Silas Make Otuke v Attorney General & 3 Others [2014] eKLR, highlighting the legal principle that any allegations of fraud must be pleaded and strictly proved, and that it is not enough to simply infer fraud from the facts; Mursal & Another v Manese [2021] KEHC 282 (KLR), highlighting the mandate of the first appellate court; Munyaka Company Limited v Bernardo Dicezo De Masi [2018] eKLR on what a litigant is required to prove so as to establish adverse possession; Abdirashi Adan Hassan v the Estate of W. H. E. Edgney [2022] eKLR for the proposition that a claim for adverse possession must be brought against the registered proprietor and in respect of the correct parcel of land whose ownership is verified by an annexed extract of the title; Murithi Wanjau v Samuel Mundati Gatabaki & Another [2015] eKLR, submitting that an omnibus application is incapable of proper adjudication by the court, and that this alone makes the application incurably defective and a candidate for striking out; and Njue v Matiabe & 3 Others [2023] KEELC 17361 (KLR), submitting that one cannot advance a claim in fraud and adverse possession in the same cause.
12.This Court’s mandate on 1st appeal was espoused in Ng’ati Farmers’ Co-Operative Society Ltd v Ledidi & 15 Others [2009] KLR 331 as follows:
13.This mandate was underscored in the case of Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212 as follows:
14.However, we are conscious as cautioned by the predecessor to this Court in Peters v Sunday Post Ltd [1958] EA 424 that:
15.In our view, the main issues that fall for determination in this appeal are: whether the learned Judge was at fault in declining to grant the appellants’ claim in adverse possession of the suit property; whether the learned Judge erred in declining to find fraud on the part of the 2nd respondent in acquisition of the suit property; and whether the learned Judge failed to consider the appellants’ evidence.
16.Before pronouncing ourselves on the three issues, we hasten to observe that what began as a claim for adverse possession in the ELC curiously metamorphosed into an appeal grounded on alleged fraudulent acquisition by the 2nd respondent of the suit property. These are two incongruent causes of action that are incapable of riding on the wheels of justice in tandem. Be that as it may, it would be remiss of us not to pronounce ourselves albeit obiter on both heads of claim so as to lay the matter to rest.
17.On the 1st issue as to whether the appellants had proved adverse possession of the suit property, the statutory underpinnings of such a claim was set out by this Court in Teresa Wachuka Gachira v Joseph Mwangi Gachira [2009] eKLR as follows:
18.It must be borne in mind, though, that occupation beyond the period of limitation (12 years) does not of itself guarantee success in a claim for adverse possession. Simply put, there is more to it than mere occupation as was enunciated in Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR where this Court held:
19.In the instant case, the pertinent question is whether the appellants’ use and occupation of the suit premises was “non-permissive or non-consensual, actual, open, notorious, exclusive and adverse ….” In answer to this issue, the evidence points to the contrary, in that, their deceased father was a tenant of the then registered proprietor, namely Georgina Christian, who transferred the suit property (Mombasa Island Block XV/31) to the 2nd respondent in 2001. On the property stood a warehouse where the deceased carried on a motor garage business which, upon his demise in 2005, the appellants continued to operate. In effect, the appellants’ continued occupation of the suit premises jointly with their deceased father, and thereafter on their own, was permissive and consensual. This was notwithstanding their neglect to pay rent as demanded by the 2nd respondent’s counsel on 29th April 2002, and in response to which they took out an Originating Summons purportedly claiming adverse possession of the demised premises in a bid to resist the threat of distress for rent and eviction. Their Summons came only 8 years later, Consequently, a claim for adverse possession could not stand on account of their capacity either as continuing tenants or licensees after their father’s demise only 9 years earlier.
20.As correctly observed by the High Court at Malindi in Haro Yonda Juaje v Sadaka Dzengo Mbauro & another [2014] KEHC 6665 (KLR):
21.Turning to the 2nd issue as to whether the learned Judge was at fault in failing to uphold the appellants’ claim of adverse possession on the ground that the 2nd respondent had fraudulently acquired title to the suit property, their allegations of fraud were founded on quick sand in so far as they were intended to bolster their claim in adverse possession. As rightly pointed out by the learned Judge,, no particulars of fraud were specified or and proved in evidence to support such allegations (see: Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR). As we have already observed, a claim in adverse possession is incompatible with a claim in fraud.
22.In this regard, we are persuaded by the decision of the High Court of Kenya at Malindi in Haro Yonda Juaje v Sadaka Dzengo Mbauro & another [2014] KEHC 6665 (KLR) where the court aptly held that:
23.In the same vein, the Environment & Land Court at Nairobi in Njue v Matiabe & 3 others [2023] KEELC 17361 (KLR) rightly emphasised that:
24.Finally, the appellants contend that the learned Judge did not consider their evidence. Having carefully combed through the record of appeal, we fail to see what evidence escaped the learned Judge’s scrutiny. The fact that the learned Judge did not agree with the appellants’ affidavit evidence, testimonies and submissions on the alleged fraud in respect of acquisition of the suit property by the 2nd respondent does not of itself impute sheer disregard of such statements and contentions. Neither is the trial court expected to provide a word-for-word transcript of the evidential material analysed in reaching its conclusion. To our mind, nothing turns on this issue in the absence of specific indications as to what evidential material was disregarded, and which could have turned the tide to justify a finding that the appellants had acquired adverse possession of the suit property. We find none.
25.Having carefully considered the record of appeal, the grounds on which it was anchored, the impugned judgment, the rival submissions, the cited authorities and the law, we find that the appeal has no merit and is hereby dismissed. Consequently, the Judgment and Decree of the Environment and Land Court of Kenya at Mombasa (N. Matheka, J.) delivered on 22nd November 2022 are hereby upheld.
26.The appellants shall jointly and severally bear the 2nd respondent’s costs of the appeal.Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JULY, 2025.A. K. MURGOR…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.………………………………JUDGE OF APPEALG. W. NGENYE-MACHARIA………………………………JUDGE OF APPEALI certify that this is a True copy of the original SignedDEPUTY REGISTRAR