https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3890

Wambua v Ngilai (Enviromental and Land Originating Summons E002 of 2023) [2026] KEELC 3890 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEELC 3890 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Enviromental and Land Originating Summons E002 of 2023 NA Matheka, J June 23, 2026 Between Antony Mwau Wambua Plaintiff and Wycliff Musyoka Ngilai Defendant Judgment 1.The case is brought under Order 37 of the Civil Procedure Rules, The Land Registration Act, 2012, The Environment and Land Act, The Constitution of Kenya and by the above-named Applicant for Orders;1.That an Order that all parcel No. known as Wamuyu/Kilembwa /84 measuring about 4.4 Hactares belongs to the Applicant and be registered in the name of Applicant herein namely Antony Mwau Wambua.2.Costs of the suit. 2.After considering the originating summons application, the replying affidavit and submissions therein, I have found that the issues for determination are as follows;i.Whether or not the Plaintiff has met the threshold for adverse possession.ii.Who will bear the costs? 3.The provision of law concerned with adverse possession is section 38 (1) and (2) of the Limitations of Actions Act Cap 22 which states as follows;(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.(2)An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.” 4.And section 37 of the Limitations of Actions Act Cap 22 states as follows:‘This Act applies to land registered under the Government Lands Act (Repealed), the Registration of Titles Act (Repealed), the Land Titles Act (Repealed) or the Registered Land Act (Repealed), in the same manner and to the same extent as it applies to land not so registered, except that— (a) where, if the land were not so registered, the title of the person registered as proprietor would be extinguished, such title is not extinguished but is held by the person registered as proprietor for the time being in trust for the person who, by virtue of this Act, has acquired title against any person registered as proprietor, but without prejudice to the estate or interest of any other person interested in the land whose estate or interest is not extinguished by this Act;’’ 5.The law in respect to adverse possession is now settled. For a party to succeed in a claim of adverse possession he/she must satisfy the following criteria stated in the case of Maweu vs Liu Ranching and Farming Cooperative Society 1985 KLR 430 where the Court held;Thus, to prove title by adverse possession, it was not sufficient to show that some acts of adverse possession had been committed. It was also to prove that possession claimed was adequate, in continuity, in publicity and in extent and that it was adverse to the registered owner. In law, possession is a matter of fact depending on all circumstances”. 6.I am also guided by Samuel Miki Waweru vs. Jane Njeru Richu, Civil Appeal No. 122 of 2001, the Court of Appeal delivered the following dictum:…it is trite law a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in (accordance with) provisions of an agreement of sale or lease or otherwise. Further, as the High Court correctly held in Jandu v Kirpal [1975] EA 225 possession does not become adverse before the end of the period for which permission to occupy has been granted.” 7.The copy of the search title annexed as AMW 7 dated 3rd October 2022 shows that Wycliff Musyoka Ngilai is the registered owner of Wamunyu/Kilembwa/84. PW1 testified that he is in possession of the suit land and does horticulture there. That he has been in occupation of the suit land since the 1980’when he bought it. He has produced photos of the land as exhibits. 8.The Defendant testified that he does not know the Plaintiff. That the Plaintiff was the previous owner of the suit land which was registered in his name inon the 20th1st march 1974. He stated that the Plaintiff secured a loan of Kshs. 300,000/= from the Kenya Commercial Bank and used the property as a collateral. The charge was registered on the 16th June 1989. The Plaintiff defaulted in repayment of the said loan and the land was sold through a public auction on the 19th October 2005. The Defendant was declared the highest bidder and purchase the same for kshs. 210,000/=. He maintains that the Plaintiff is not on the suit land and that he is the one in possession. 9.The law and requirements for adverse possession was reiterated in the case of Mbira vs Gachuhi, (2002) IEALR 137 where it was held that:……. a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutory prescribed period without interruption….” 10.The Plaintiff stated that he bought the land and has been in possession from the 1980s. PW2 stated that he is the Plaintiff’s caretaker and lives there. Nevertheless, the testimony of the Plaintiff’s is not corroborated by the evidence. 11.In the instant matter, the Defendant contends that he bought the suit land in a public auction and that the Plaintiff is currently not in possession of the suit property. In a claim for adverse possession, the non-use of the property by the owner even for a long period of time will not affect his title. The position will only be altered when another person takes possession of the property and asserts a right over it. 12.I find that the Plaintiff did not produce any evidence showing that he took open, exclusive and uninterrupted possession save for photos of vacant land. Indeed, the Plaintiff does not dispute the loan to the bank. I find that the Plaintiff has failed to prove his case on a balance of probabilities and I dismiss it. Cost generally follow the event under section 27 of the Civil Procedure Act and hence the Plaintiff is to bear the costs of this suit. 13.It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 23RD DAY OF JUNE 2026.N.A. MATHEKAJUDGE