Mbarire v Ireri & another (Enviromental and Land Originating Summons E009 of 2022) [2026] KEELC 4953 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC CASE NO. E009 OF 2022 (O.S.)** **ALBERT IRERI MBARIRE.............................................................APPLICANT** **VERSUS** **NICHOLAS IRERI...............................................................1ST RESPONDENT** **JOHN NJIRU MBARIRE** **(Sued as the Legal Representative of the Estate of the Late JACOB NJIRU MBARIRE).....................................................................2ND RESPONDENT** **JUDGMENT** The Applicant commenced these proceedings by an Originating Summons dated 7th March 2022 seeking declarations that he has acquired title to Land Parcel No. KAGAARI/GIKUURI/T.246 by adverse possession and, in the alternative, that the Respondents hold the suit property in trust for him. The Originating Summons is supported by the Applicant's affidavit sworn on 7th March 2022. The Respondents opposed the claim through separate Replying Affidavits sworn on 17th March 2022. Upon compliance with Order 11 of the Civil Procedure Rules, the matter proceeded by way of viva voce evidence. The Applicant testified that he was born in 1953 and that following the divorce of his mother in 1958, she returned to her parental home where her brother, the late Jacob Njiru Mbarire, allowed her together with her young children to occupy the suit property. According to the Applicant, he grew up on the suit land and later acquired his own land elsewhere but left his mother and siblings on the suit property. His mother died in 1995 and was buried on the suit land with the knowledge and approval of the deceased registered proprietor. He further testified that his siblings continued residing on the land and that in the year 2001 he was charged with the offence of trespass but was acquitted. He contended that his occupation and that of his family has been open, continuous, peaceful and uninterrupted for over forty years and therefore the Respondents' title has been extinguished. During cross-examination, the Applicant admitted that his mother entered the land after being invited by the late Jacob Njiru Mbarire. He further admitted that he presently resides elsewhere and that he was unaware of the succession proceedings relating to the estate of the deceased proprietor. The 1st Respondent testified on behalf of the defence. He confirmed that the Applicant is his cousin and that the Applicant's mother was indeed their father's sister. He stated that their late father merely permitted his sister to occupy the suit property after her marital problems. According to him, the Applicant and his siblings vacated the suit land after the death of their mother in 1995 and the land has largely remained vacant. He testified that succession proceedings were undertaken after the death of their father and the property distributed to the beneficiaries. He further stated that in 2020 the Applicant attempted to return to the land and commenced construction, prompting criminal proceedings for trespass in which the Applicant was acquitted for lack of sufficient evidence. The intended testimony of the 2nd Respondent was not admitted since he had neither filed a replying affidavit nor witness statement and subsequently filed a supplementary affidavit without leave of the court. Consequently, that affidavit has no evidential value. The Applicant submitted that his occupation satisfied all the ingredients of adverse possession. He argued that his developments on the land demonstrated exclusive possession and that the Respondents had been completely dispossessed for decades. Alternatively, he urged the court to find that the Respondents held the land in trust for him. The 1st Respondent submitted that the Applicant's occupation was permissive from inception because the Applicant's mother had been expressly allowed onto the land by the registered owner. He maintained that permissive occupation cannot found a claim for adverse possession. Having considered the pleadings, evidence and submissions, the issues falling for determination are whether the Applicant has established a claim for adverse possession and, if not, whether he has proved the alleged trust. The law governing adverse possession is settled under Sections 7, 13, 17 and 38 of the Limitation of Actions Act. The principles have been consistently stated in numerous decisions including Wambugu v Njuguna [1983] KLR 172, Mbira v Gachuhi [2002] 1 E.A. 137, Kasuve v Mwaani Investments Ltd & 4 Others [2004] 1 KLR 184 and more recently Githae v Mwai & 2 Others [2025] KECA 1563 (KLR). The claimant must demonstrate actual, open, notorious, exclusive and uninterrupted possession for a period exceeding twelve years which is inconsistent with and adverse to the title of the registered proprietor. The starting point in every adverse possession claim is to ascertain the character of the claimant's entry onto the land. The Applicant himself candidly admitted that his mother entered the suit property after being invited and settled there by the registered proprietor, who was her brother. The Respondents equally admitted that their late father accommodated his divorced sister and her young children out of family compassion. That evidence is consistent and uncontroverted. It establishes that the Applicant's occupation originated from the permission and licence of the registered proprietor. The Court of Appeal in Wambugu v Njuguna (supra) held that where possession is by consent or licence, time does not begin to run until the permission is terminated or the licence is clearly repudiated. Likewise, in Mbira v Gachuhi (supra), the court observed that adverse possession cannot arise where occupation is enjoyed with the owner's permission. The Applicant did not identify any specific act demonstrating that the licence granted to his mother was ever terminated or that he openly asserted ownership adverse to that of the registered proprietor during the latter's lifetime. On the contrary, the evidence shows that when the Applicant's mother died in 1995, the deceased proprietor expressly permitted her burial on the suit property and even attended the burial. Such conduct is wholly inconsistent with the proposition that the relationship between the parties had by then become hostile or adverse. Equally significant is the Applicant's own evidence that he subsequently acquired land elsewhere and relocated, leaving his mother and siblings on the suit property. The 1st Respondent testified that after the death of the Applicant's mother the family eventually vacated the land and that the Applicant only resurfaced in 2020 when he attempted to construct rental rooms. The Applicant produced no independent evidence to rebut this assertion. No witness from his siblings or neighbours testified that the Applicant remained in continuous and exclusive possession after 1995. Neither were photographs, valuation reports nor other documentary evidence tendered to demonstrate the alleged permanent developments, coffee plantations or continued occupation extending uninterrupted for twelve years. The burden of proof rested upon the Applicant under Sections 107 to 109 of the Evidence Act. While the standard is on a balance of probabilities, a party alleging acquisition of another person's registered land through operation of law must place cogent evidence before the court. The evidence presented falls short of establishing continuous, exclusive and uninterrupted possession for the statutory period. The Applicant also placed considerable emphasis on his acquittals in criminal trespass proceedings. However, an acquittal under Section 215 of the Criminal Procedure Code merely signifies that the prosecution failed to prove the criminal charge beyond reasonable doubt. It neither confers proprietary rights nor establishes the ingredients of adverse possession. The Applicant alternatively pleaded that the Respondents hold the suit property in trust for him. A customary or constructive trust is a distinct cause of action from adverse possession. It must be specifically pleaded and proved by evidence demonstrating the circumstances giving rise to the trust. The evidence before court merely shows that the deceased proprietor permitted his divorced sister and her children to occupy part of his land out of family generosity. There is no evidence that he intended to surrender beneficial ownership of the property to the Applicant or that the land was ancestral land held on behalf of the Applicant. Indeed, had such intention existed, nothing prevented the deceased from transferring the land to his sister or the Applicant during his lifetime. The mere fact that a close relative is allowed to occupy family land does not, without more, create a trust enforceable against the registered proprietor or his estate. The court therefore finds that the Applicant has failed to prove either adverse possession or the existence of a trust on the required standard. In the result, the Originating Summons dated 7th March 2022 lacks merit and is hereby dismissed. Considering that this dispute arises from a close family relationship between cousins and concerns occupation initially permitted by their deceased relative, this is an appropriate case for each party to bear his own costs in order not to further aggravate the family discord. Accordingly, the Court makes the following orders: 1. The Applicant's Originating Summons dated 7th March 2022 is dismissed. 2. The Applicant has failed to establish acquisition of Land Parcel No. KAGAARI/GIKUURI/T.246 by adverse possession. 3. The Applicant has equally failed to prove that the Respondents hold the suit property in trust for him. 4. Each party shall bear his own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT EMBU THIS 23rd DAY OF JULY, 2026. E.C. CHERONO .............................................. **JUDGE** **ENVIRONMENT AND LAND COURT** **EMBU** In the presence of; 1. Plaintiff/ Applicant – Present 2. 1st defendant/ respondent – Present 3. Ruth – Court Assistant