https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4085

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLOS E005 OF 2024** **IN THEMATTER OF CLAIM FOR TITLE TO LAND BY ADVERSE POSSESSION OVER** **MAKUYU KAMBITI/BLOCK-II(MATHE NGETA)/402** **BETWEEN** **AISHA MUTHONI KIRIGO Suing as the administrator of the** **Estate of the late (TERESIA NJURA NJERU)………………..………………………..PLAINTIFF** **VERSUS** **JANE NYAGUTHIE MBURU(Sued as the administrator of the** **Estate of the late WILBERT MWANGI alias** **WILBERT MWANGI MURIUKI………………………………………………….…RESPONDENT** **JUDGMENT** 1. The Plaintiff seeks the following reliefs against the Defendant. 2. **A declaration that the title of Wilbert Mwangi Muriuki, now deceased, to the freehold interest in land parcel No. Makuyu/Kambiti/Block-II(Mathengeta) 402 has been extinguished by the Plaintiff’s adverse possession thereof for a period of more than 12 years in terms of Sections 17 and 38 of the Limitation of Actions Act.** 3. **A declaration that the Plaintiff, the estate of Teresia Njura Njeru has acquired title or freehold interest in the land known as Makuyu Kambiti/Block II/(Mathe Ngeta) 402 by adverse possession for over twelve (12) years since 1992.** 4. **An order do issue requiring and directing the Land Registrar Murang’a to register the Plaintiff, the estate of Teresia Njura Njeru (deceased) as the proprietor of land parcel No. Makuyu Kambiti/Block II (Mathe Ngeta)/402 in place of the named Wilbert Mwangi Muriuki, now deceased, and in place of any other person succeeding his estate including the Defendant.** 5. **An order do issue of permanent injunction restraining the Defendant either by herself, agents, employees, and servants from selling or offering for sale, transferring, disposing, evicting or dealing in any manner prejudicial to the Plaintiff’s interest in the parcel of land Number Makuyu Kambiti/Block II(Mathe Ngeta)1402.** 6. **That the costs of these proceedings be borne by the Defendant.** 7. **That such other orders be made as this Court deems fit and just.** 8. The Plaintiff’s case is as follows. Firstly, the Plaintiff is the personal representative of the estate of Teresia Njura Njeru. In the year 1991, her late husband Alex Nyaga Njeru bought the suit land from Wilbert Mwangi Muriuki now deceased. Soon after the purchase land of the suit land, Nyaga built a permanent house for his mother Teresia Njura Njeri. This was in the year 1992. Teresia occupied the land, cleared the bushes and started farming on it. She planted trees and grew food crops and fruit trees. When the house was completed, there was a big party to which the neighbours were invited. Secondly, the occupation of the suit land by Teresia was as the owner of the suit land. In the year 1997, Kariuki Njeru, a son of Teresia died and he was buried on the land. He was last born child of Teresia. The Defendant attended the burial of Kariuki Njeru. Thirdly, the seller of the land Wilbert Mwangi Muriuki migrated to the Rift Valley area together with his wife and children. He did not come back to the land. He did not complete the transaction by transferring the suit land to the late Alex Nyaga Njeru. He later died. Fourthly, the Defendant as the administratix of the estate of Wilbert Mwangi Muriuki has threatened to evict the Plaintiff from the suit land. This is the reason why she filed this suit. 9. In support of her case, the Plaintiff filed the following evidence. * 1. **Further amended supporting affidavit dated 4-7-2025.** 2. **Witness statements by herself, Ephantus Maina, Peter Mutua Kavuti, Simon Chira Gachuki and Simon Ngari Kariuki.** 3. **Certificate of death of Teresia Njura Njeru.** 4. **Limited Grant ad litem dated 9-7-2024 issued in Kenol Panel A case No. E031 of 2014.** 5. **Copy of acknowledgement dated 8-2-1991 by Wilbert Mwangi Muriuki.** 6. **Seven (7) photographs showing an old lady outside a stone house, trees, bananas, pawpaws, mango trees and other crops growing on a parcel of land.** 7. **Copy of register of the suit land with entries dating from 1-12-1988 to 16-5-2014.** 10. The summons is opposed by the Defendant who has sworn a replying affidavit dated 6-5-2024 and a supplementary affidavit dated 18-8-2025 in which he replies as follows. One, Teresia and her son Inyasio Mwangi Njeru are trespassers onto the suit land where they entered in the year 2010, cut down crops and trees and then assaulted the Defendant. A report was made at Makuyu Police Station on 21-7-2010. Two, the remains of Alex Nyaga were buried at Malindi as were those of Teresia while those of Inyasio Mwangi were buried at a public cemetery as per a court order issued in Kenol SRM Miscellaneous E004/2023. Three, Inyasio Mwangi sued the Defendant at ELC Murang’a Case No. 94 of 2017 seeking to restrain her the land. Her suit was dismissed on 9-5-2019. Four, the Defendant sued Inyasio Mwangi in Murang’a ELC Case No. 7 of 2020 and there was a judgement in favour of the Defendant and this suit was filed to preempt execution in the said suit because she had instructed an auctioneer to execute the decree just before the Plaintiff filed this suit. Finally, the Plaintiff’s occupation of the suit land has not been without permission. It has also been interrupted as the suits clearly show. For the above and other reasons, the Defendant prays for the dismissal of the suit with costs. 11. In support of her case, the Defendant filed the following evidence. * 1. **Replying affidavit dated 6-5-2024 and supplementary affidavit dated 18-8-2025.** 2. **Defendant’s witness statement dated 25-2-2025.** 3. **Witness statement by Joyce Wanjiru Nyaguthii dated 2-6-2025.** 4. **Copy of letter from Makuyu Police Station dated 21-7-2010.** 5. **Copy of P3 form dated 29-7-2010.** 6. **Copy of judgment in Murang’a ELC Case No. 94 of 2017.** 7. **Copies of judgment, decree, order and witness statement by Teresia Njura Njeru in Murang’a CMCC ELC Case No. 7 of 2020.** 8. **Pleadings in Kenol ELC Misc. E004/2023.** 9. **Copy of letter dated 5-5-2023.** 10. **Certificate of confirmation of grant (copy) in Murang’a High Court Succession Cause No.303 of 2013.** 11. **Copy of letter by the Chief of Kambiti location dated 14-8-2025.** 12. At the trial on 3-3-2026 and 12-5-2026, a total of five witnesses testified on the side of the Plaintiff while two (2) testified on the part of the Defendant. The testimony of the witnesses did not differ from their stated positions in their pleadings. They merely reiterated what is already pleaded. 13. Counsel for the parties filed written submissions dated 18-6-2026 and 5-6-2026 respectively. The issues identified by the Plaintiff’s counsel are as follows. 14. **Whether the suit is res judicata?** 15. **Whether the claimant has proved adverse possession of the suit land?** 16. **Whether the sale agreement dated 8-2-1991 is admissible in evidence?** 17. **Whether the presence of a sale transaction defeats a claim for adverse possession?** 18. **Whether the Defendant has proved the Plaintiff’s occupation commenced in 2010?** 19. **Whether there was occupation by the Plaintiff for the statutory period required?** 20. **Whether the Defendant has effectively interrupted the Plaintiff’s possession to defeat a claim for adverse possession?** 21. **Whether the Plaintiff is entitled to the whole or part of the suit land?** 22. **Whether the Defendant has proved the existence of a customary trust concerning the suit land?** 23. **Whether the Defendant’s claim is for recovery of possession or trust is barred by effluxion of time?** 24. **Who pays the cost?** 25. Counsel for the Defendant identified three issues. 26. **Whether the Plaintiff has proved the ingredients necessary to sustain a claim for adverse possession.** 27. **Whether the Plaintiff’s occupation of the suit property has been peaceful, open, exclusive and uninterrupted.** 28. **Whether the Plaintiff bought the respective portion of the suit land in totality as alleged in their pleadings.** 29. Counsel for the Defendant did not adhere to the directions issued 12-5-2026 as to the order of filing of submissions. Her submissions were to be filed within 21 days from 12-5-2026. This means that she was to file by 3-6-2026 while the Plaintiff’s counsel was to file his within 35 days from 12-5-2026 which is by 17-6-2026. These directions were issued in strict compliance with **Order 18 rule 2(1)** and **(2)** Civil Procedure Rules which provide as follows. 1. **On the day fixed for hearing of the suit, or any other day to which the hearing is adjourned, the party having the right to begin (the Plaintiff) shall state his case and produce his evidence in support of the issues he is bound to prove.** 2. **The other party (the Defendant) shall then state his case and produce his evidence, and may address the Court generally on the case(submit). The party beginning (the Plaintiff) may then reply”.** Failure to comply with the Court directions is not of any serious consequences to the suit itself but counsel should always comply with court directions as per Section 1A(3) of the Civil Procedure Act which states as follows. **“ A party to Civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objectives of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.”** 1. It is my finding that the suit is not res judicata. This is because none of the previous suits, that is to say, Murang’a ELC 94 of 2017, Murang’a CMC ELC case No. 7 of 2020, Kenol ELC Miscellaneous E004/2023 and High Court Succession Cause No. 303 of 2013 had anything to do with adverse possession or constructive trust and proprietary estoppel which are the key issues arising from this suit. 2. Regarding the second of the Plaintiff issues, I find that the occupation of the suit land by Alex Nyaga Njeru, his mother Teresia Njura Njeru and his siblings was adverse to the Defendant and her family’s title, if any. The occupation was open, peaceful, exclusive and it was without the permission of the Defendant or any member of her family. That is why Alex Nyaga was able to build a house for his mother, invite neighbours for the house opening party, plant trees and fruit trees. The house built is a permanent stone house as can be seen from the photographs produced as exhibits. There is overwhelming evidence on this from the Plaintiff and this evidence is corroborated sufficiently in material particulars by the evidence of three neighbours who include Ephantus Maina, Peter Mutua and Simon Chira. I believe the evidence by the witnesses which I found credible and consistent. Further to the above, the family of Njura buried their Son, Kariuki Njeru on the suit land in 1997. All this is consistent with ownership, openness and is without any force. If the Plaintiff’s family did not own the land, that was time for the Defendant and her family to intervene and stop the burial. 3. As for the third issue, it is my finding that the acknowledgement of receipt of money by Wilbert Mwangi Muriuki from Alex Nyaga Njeru is admissible in evidence because in the preamble to the Constitution the third paragraph states as follows. **“Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation.”** The fact that the said acknowledgment is not in Kiswahili or English does not diminish its probative value. It is not inferior to the evidence that is in English or Kiswahili. It’s meaning was not doubted. Neither was it the subject of cross-examination. Our ethnic diversity is respected by the Constitution and this diversity includes languages. 1. Looking at the fourth issue, I find that the sale transaction proves, rather than defeats, a claim for adverse possession. It proves that the original entry was lawful and with permission. Under the Land Control Act particularly Section 8(1), the consent of the Land Control Board must be obtained within six(6) months of the date of the sale agreement. Any occupation after six months was without permission of the seller of the land. 2. The evidence by the Defendant that the Plaintiff’s family entered the suit land in 2010 and occupied it violently is not credible at all in view of the finding in paragraph [11] of this judgment. I find no truth whatsoever in those allegations by the Defendant and her witness. The house with the old lady standing outside the door as can be seen in the photographs is definitely an old one and built much earlier than the year 2010. In the same vein in regard to the sixth, seventh and eighth issues, I find that the Plaintiff’s family’s occupation of the suit land dates from the year 1991 to date, a period of about 35 years and that this occupation has not been interrupted and the Plaintiff’s family is entitled to the suit land. 1. The Defendant has not been able to prove the existence of a customary trust in regard to the suit land. The suit land belonged solely to her brother Wilbert Mwangi Muriuki who did not hold it in trust for anybody else except his own Children. We have it on uncontroverted evidence that Wilbert migrated to the Rift Valley together with his wife and children. The Defendant has no lawful claim over her brother’s property. She ranks lower than his wife and children. The land belonged to the Wilbert alone and the Defendant has no lawful or equitable claim thereto. 2. In the above findings, I find that the Defendants issues have also been addressed. There is however one final issue that I wish to address. It is whether the Plaintiff’s family is entitled to the suit land through any doctrine known in law. 3. It is my finding that the Plaintiff’s family is entitled to the suit land under the doctrines of constructive trust and proprietary estoppel. A constructive trust is imposed by the Court where it would be unconscionable for the legal owner of land to deny another person’s beneficial interest. Unlike an express trust, it does not arise from a written declaration but is imposed by the operation of Law to prevent unjust enrichment or fraud. This doctrine was applied by the Court of Appeal in the case of **Willy Kimutai Kitilit vs. Michael Kibet Civil Appeal No. 51** **of 2015** whose facts were similar to the facts of this case. The seller had put the buyer in possession of the suit land after the buyer had paid the full purchase price. When he sought to rescind the sale agreement the court would not allow him. The Court of Appeal held that equity which is now a Constitutional value under Article 10 of the Constitution prevails over the Land Control Act and failure to obtain the Land Control Board consent did not affect the agreement. Similarly in this case, the two doctrines of constructive trust and proprietary estoppel apply and prevail over the Land Control Act. 4. Finally, **Section 3(3)** of the **Law of Contract Act** at the proviso exempts land that is the subject of a resulting, implied or constructive trust from the requirements of Section 3(3) of the Act. In other words, where the seller puts the buyer in possession, there is no requirement of a sale agreement. This proviso applies to this case. 5. In conclusion and for the reasons already given, I find that the Plaintiff has proved her case against the Defendant on adverse possession as well as under the doctrines of constructive trust and proprietary estoppel. I enter judgment for the Plaintiff against the Defendant in term of **prayers 1, 2, 3** and **4** of the further amended originating summons dated 4-7-2025. Costs to the Plaintiff . **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 1st day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistants – Antony** **Plaintiff’s Counsel – Mr Mbugua** **Defendant’s Counsel – Miss Waititu**