IN THE COURT OF APPEAL
AT KISUMU
(Coram:platt, Apaloo JJA and Masime Ag JA)
CIVIL APPEAL NO 50 OF 1986
BETWEEN
ACHACHA NYACHIENGA.................................APPELLANT
AND
OGOWE S/O OLIECH...................................RESPONDENT
JUDGMENT
(Appeal from the High Court at Kisumu, Porter J)
May 3, 1988, Platt, Apaloo JJA and Masime Ag JA delivered the following Judgment.
On July 7, 1980 Scriven J made an uncalled for order outside the pleadings and issues for trial, when he declared that Ogowe Oliech had rights in possession against the whole of the land, such as are capable of definition under the provisions of section 30(g) of the Registered Land Act (cap 300). He was satisfied, he said, that whenever it was that the defendant did take possession he knew of the plaintiff’s ancestral claim to the land should he return from Tanzania. The learned judge did not accept the plaintiff’s claim to the land on the basis of adverse possession, or a customary or other trust. It was recognized that the…