Denying a landowner's claim is not automatically claiming adverse possession. In this Wajir dispute, the Court of Appeal asked whether adverse possession had actually formed part of the case tried below.
How the dispute reached a second appeal
The decision is Mohamed v Sheikh, Court of Appeal at Nairobi, Civil Appeal No. 14 of 2019, delivered on 20 September 2024. The land was expressly described as situated in Wajir town. (Page 1; page 12, dated closing.)
The claimant had sued in the Wajir Magistrate's Court, asserting registered ownership and seeking an injunction and removal of the opposing occupants. They denied his allegations and maintained that their occupation was lawful. The trial court found for the claimant and granted the relief sought. (Pages 1-2, paragraphs 1-2.)
The Garissa ELC allowed the respondent's appeal in July 2018 on adverse-possession grounds. The claimant brought this second appeal, approached through the Court of Appeal's stated mandate on matters of law, not as a new witness trial. (Pages 2-3, paragraphs 3-5; page 7, paragraph 10.)
What the trial defence actually contained
The Court of Appeal examined the defence itself, reproducing it in the judgment. It denied the disputed allegations and asked for dismissal of the claim. The defence had not been amended, and there was no counterclaim raising adverse possession. (Pages 7-8, paragraphs 11-13.)
The decisive problem was not simply a missing label. The court found that adverse possession had not been pleaded, raised or supported by evidence at trial and left for the trial court to determine. It appeared instead in the ELC grounds of appeal and written submissions. Nevertheless, the ELC's judgment had turned entirely on it. (Pages 10-11, paragraphs 18-19.)
An existing trial issue differs from a new basis for obtaining land introduced after trial.
The court recognised an exception
The judgment explained why parties and courts ordinarily remain within the pleadings: each side needs to know the case it must meet and prepare evidence accordingly. Deciding an unpleaded claim can deny that opportunity. (Pages 8-10, paragraphs 14-17.)
It also recognised the exception discussed in Odd Jobs v Mubia. An unpleaded issue may be decided where the course of the trial shows that it was actually raised and left to the court for determination. The Court of Appeal found that this had not happened here. (Page 10, paragraph 18.)
The judgment does not make every pleading omission fatal, occupation length automatic title, or registration an answer to every properly presented adverse-possession claim.
The title findings and exact orders
The court also endorsed the trial assessment of the claimant's allocation and title documents. His registered title had not been successfully challenged; the court accepted the finding of trespass. These are historical findings in this dispute, not labels for unrelated people or property. (Page 11, paragraph 20.)
The Court of Appeal allowed the appeal, set aside the ELC judgment and decree dated 24 July 2018, and substituted an order dismissing the respondent's ELC appeal with costs. The claimant was also awarded the costs of the Court of Appeal proceedings. The result restored the trial outcome; it was not merely permission to bring another appeal. (Pages 11-12, paragraphs 21-22.)
The judgment does not establish that an eviction was later carried out or that a particular registry entry remains unchanged today.
Questions for an occupation dispute
- Where is the claimed basis of occupation set out in the pleadings, amendments or counterclaim?
- If an issue was not pleaded, what shows that the parties actually tried it and left it for decision?
- Which allocation and title documents were produced, and what challenges to them were determined?
- Which judgment remains operative after the appeals, and what later orders or official records still need checking?
A qualified Kenyan advocate should connect the pleadings, evidence and orders. A description such as “adverse possession” is not a substitute for that record.
Source and historical limits
This account uses the official Judiciary September 2024 collection, specifically the twelve-page Civil Appeal No. 14 of 2019 judgment, paragraphs 1-22, read on 30 September 2026. Later appeals, reviews and enforcement have not been researched for this article. No present ownership or enforceability assurance is given.
If considering ArdhiScore, review its screening scope and limitations. Screening does not establish title, prove an occupation claim or guarantee that every relevant record will be found.