Charles Gachugu Muchiri v Orbit Chemical Industries Ltd

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC E001 OF 2023[OS]** **CHARLES GACHUGU MUCHIRI - PLAINTIFF/APPLICANT** **VS** **ORBIT CHEMICAL INDUSTRIES LTD - DEFENDANT/RESPONDENT** **JUDGMENT** **The Pleadings** 1. **Vide the originating summons dated 21/7/2023, the Plaintiff moved the Court for orders of adverse possession and sought the determination of the following issues;** 2. **Whether the Applicant has been in adverse possession of the land parcel No Nairobi/Block 263/1105 and Nairobi Block 263/1106 [ the suit lands], being formerly plot Nos 165 and 166 respectively at Kware Kwa Njenga, Embakasi Subcounty, Nairobi City County.** 3. **Whether the Respondents' title to the land is extinguished at the expiry of 12 years from the date the Plaintiff took possession.** 4. **Whether an order should be made for the Respondent to transfer the suit lands to the Applicant within 45 days and, in default, the Court do make an order authorising the Deputy Registrar of the Court to sign the necessary documents to effect transfer of the aforesaid land to the Plaintiff.** 5. **The Court do make further orders or grant any relief it may deem just to grant in the circumstances.** 6. **That the Respondent pays the costs of the summons.** 7. **It is averred that on 8/1/20002 the Plaintiff purchased the suit lands [ then referred to as plot Nos. 165 and 166] from one Justus Kinoti Mbijiwe for a consideration of Kenya shillings Four Hundred Thousand Only [Kshs 400,000/].** 8. **Upon full payment, the Plaintiff was issued with land ownership certificates No. 020 and 021, denoting his ownership of the suit lands. The Vendor also issued the Plaintiff with an irrevocable power of attorney dated 8/1/2002 upon the transfer of his interest in the suit properties.** 9. **In addition, it is averred that the Plaintiff has been in quiet occupation of the properties since 26/1/2001, for over two decades, and that in 2002 he developed a 4-storey building comprising residential and commercial spaces, from which he earns an average of Kshs 300,000/- per month.** 10. **The Defendant is the registered owner of the suit lands, which are subdivisions of the larger LR No 209/12405, also registered in the Defendant's name. That it has come to this Plaintiff's attention that the Defendant is seeking to auction the neighbouring properties, his included, albeit without any ownership interest.** 11. **Consequently, the Plaintiff urged the Court to find that the titles of the suit properties were extinguished by way of adverse possession in his favour.** 12. **The Defendant denies the Plaintiff's claim and vide its replying affidavit sworn by George Oner Ogalo on 12/11/25. The deponent summed his rebuttal as follows;** 13. **The Defendant is the registered owner of the suit lands. The suit lands were the resultant subdivisions of LR No. 12425, [the original title] of which the Defendant purchased from the National Bank of Kenya on 10/3/87.** 14. **On 25/9/1987 the Registrar of Titles lodged a caveat on the title for no justifiable reason.** 15. **The squatters filed Misc No 784 of 1996 seeking to be shielded from eviction by the Defendant.** 16. **On 17/12/1998, the Defendant, through its lawyers Da Gama Rose, issued a notice to all the squatters to vacate the suit land by 31/1/1999. The squatters failed to comply with the notice.** 17. **On 11/8/2004, the Defendant filed HCCC No 876 of 2004 challenging the decision to lodge a caveat and seeking compensation for the loss on the ground that the placement of the caveat enabled squatters, including the Plaintiff, to illegally and forcibly invade the suit land.** 18. **On 5/5/2006, the Court in Misc 784 of 1996 upheld the Defendant's title and ordered all persons, including the Plaintiff and his predecessors, Justus Kinoti Mbijiwe, from whom he claims to have purchased the land, to vacate the suit lands or face eviction by the Defendant if they do not comply with the Court orders.** 19. **On 22/9/2006, the Court in HCC NO 876 of 2004 determined the above case in favour of the Government, thereby upholding ownership of the original title in the name of the Defendant.** 20. **On 12/10/2012, the Court in HCCC No 876 of 2004 delivered another ruling, reiterating the Defendant's ownership of the original land and directing the Government to pay the Defendant the sum of Kshs 6.015 Billion as compensation for the loss of use of the original title.** 21. **On appeal, vide COA 32 of 2014, the Court of Appeal on 22/3/2019 overturned the decision of the High Court and, on the ground that the Government officer who negotiated the compensation sums had no authority to bind the Government in the negotiations leading to the colossal sums, restated its decision.** 22. **The suit land has been the subject of litigation since 1996, during which the Defendant has successfully sought and obtained eviction orders against the squatters, including the Plaintiff, negating the claim that the Defendant has not taken any action to evict him from the suit land.** 23. **Despite the eviction orders, the Plaintiff continued to occupy the property in breach of the Court orders, which is in open contempt of the orders issued on 5/5/2006; hence the claim of adverse possession is unfounded.** 24. **That the reason why the Defendant did not evict the squatters as ordered by the Court was that HCCC No 876 of 2004 and COA 32 of 2014 were pending in Court. Upon conclusion of the suits, the Defendant commenced eviction proceedings against the squatters and trespassers.** 25. **The squatters filed ELC Petition No E050 of 2021 and obtained status quo orders barring the Respondent from evicting the squatters from the suit land, which orders are still in force.** 26. **That the Defendant discovered that vide Misc 784 of 1996 some squatters had secretly obtained injunctive orders on 29/8/1996, which orders expired on 5/5/2006 when the Defendant moved to the High Court to set them aside.** 27. **It is untrue that the Plaintiff has had open and uninterrupted occupation of the suit land as he alleges since his occupation had been subject of illegal occupation and subject to Court proceedings since 1996.** 28. **The Plaintiff's occupation cannot be said to be continuous nor peaceful. The Defendant has, over the years, asserted title to the suit lands, and the Plaintiff's alleged occupation was forceful, illegal, and in contempt of Court orders.** 29. **The Defendant surrendered the original title to pave the way for the various subdivisions, culminating in the current suit properties.** 30. **Some of the illegal squatters were offered the subdivisions for purchase at a discount as a means of amicably resolving the squatter issue once and for all. As some squatters took advantage of the arrangement, the Plaintiff incited others not to participate on the baseless ground that the Government had agreed to purchase the property for all the squatters free of charge. On realising that the Government was not going to purchase the land, the Plaintiff initiated this suit as an afterthought.** 31. **The Plaintiff has admitted that he purchased the suit lands from a third party, namely Kinoti Mbijiwe, who had no title to them. Hence, he is a trespasser, and any structures he built on the land were contrary to statute and therefore constitute a direct and brazen infringement of the Defendant's property rights.** 32. **For those reasons, the Court was urged to dismiss the originating summons.** 33. **In his supplementary affidavit sworn on 16/1/26, the Plaintiff averred that the Defendant has not shown any action taken against him, including any removal from the properties. The alleged eviction was not demonstrated. The Plaintiff was not a party to any of the cases cited by the Defendant. There is therefore no decree or order that he has violated, contrary to the Defendant's contention.** 34. **The Plaintiff contends that he has occupied the suit land since 2001 continuously and uninterrupted to date for over 12 years and that the Defendant's title is now extinguished. That neither were the developments on the land approved by the Defendant.** **The evidence of the parties** 1. **At the hearing, the Plaintiff solely led his evidence and relied on affidavits before the Court while producing documents marked as PEX NO 1-8.** 2. **He stated that he has been in occupation of the suit lands since 8/1/2002. He has constructed a 4-storey mixed-use building on the suit lands, comprising commercial and residential spaces.** 3. **That he discovered that the Defendant was the owner of the properties on 19/6/23 when it advertised the properties for sale by way of public auction.** 4. **That there has never been any adverse claim over his properties for a period of 23 years since he purchased them on 8/1/2002 from Kinoti Mbijjiwe, who had a number of plots which he sold to many other buyers. He learnt in 2023 that the lands belonged to the Defendant. That when he purchased the lands, he did not inquire about the titles for the properties. Asked about the approved plans for the buildings, he answered that he did not have any, meaning that the buildings on the suit lands are unapproved by the authorities.** 5. **He informed the Court that he was unaware of any Court cases relating to the suit properties. In HCCC No 786 of 1996, he was unaware that the Court had issued eviction orders against the squatters. He was unaware that the Defendant was selling the land to the squatters. He did not make any attempts to purchase the land from the Defendant. His suit lands were not part of the properties being auctioned. He has not produced any tenancy agreements before the Court or any evidence to show that he developed the land.** 6. **With leave of the Court having been sought and obtained, the witness was recalled to give evidence on 10/6/26, at which time he produced copies of the titles for the suit lands, showing that the Defendant is the registered owner.** 7. **He added that although the land is registered in the Defendant's name, it was Mbijiwe who sold the land to him. In addition, he claimed that he is a trespasser on the suit land.** 8. **George Oner Ogalo testified, stating that he is authorised to do so on behalf of the Respondent. He produced documents marked DEX Nos 1-10 on pages 11-165 of the trial bundle.** 9. **He stated that the Applicant is not a resident on the suit lands as he lives in Karen, Nairobi.** 10. **That the suit land has been subject of long-running litigation since 1996, of which he has annexed several Court rulings in his trial documents.** 11. **He added that the main land, LR No 12425, owned by the Defendant and purchased from the National Bank of Kenya in 1987, was subdivided to yield the suit lands, along with other parcels. Subsequently, after the purchase, the property was invaded by squatters. The Defendant filed suit in 1996 seeking protection of its property rights.** 12. **He added that Kware Mukuru Kwa Njenga was one of the Associations that allocated parts of the land to its members. That the Plaintiff is not a squatter but an investor on the said land as he owns the two commercial buildings therein.** 13. **Regarding the litigation history, he stated that the Plaintiff was not a party in his own name [but as a member of the Association] to any of the suits since 1996, namely Misc 784 of 1996; COA No 32 of 2014; and HCCC No 876 of 2004. In addition, he stated that, although the Defendant has never filed any suit to evict the Plaintiff, the Plaintiff was sued as a member of the Association, namely Kware Mukuru Kwa Njenga Association. That his name appears in the certificate of the Association. That he and other members were served with the orders to vacate the suit land but they ignored.** 14. **The Defendant did not erect the Plaintiff's buildings, nor does it derive any rental income from them.** **The written submissions** 1. **As to whether the Plaintiff has had open, continuous and quiet possession and occupation of the property for more than 12 years, the Plaintiff submitted that he took possession of the suit lands in 2001 and, as at the filing of the suit, has been in occupation for a continuous and uninterrupted occupation for a period of over 21 years. He has constructed a 4-storey building which he lets to tenants.** 2. **He relied on the decision of Kihamba Vs Mbaisi [2015] KECA 853 where the Court of Appeal held that;** **“The possession of a claimant in an adverse possession claim must be continuous and without any interruptions. In the case of Kimani Ruchire Vs Swift Rutherfords & Co Limited, the Court held that the possession must be continuous. It must not be broken for any temporary purposes or any endeavours to interrupt it by way of recurrent consideration.”** 1. **In buttressing his point that possession need not be actual and physical, the Plaintiff placed reliance on the decision of the Court in the case of Peter Mbiri Michuki Vs Samuel Mugo Michuki [2014] EKLR where the Court held;** **“possession of land or any property for that matter need not be actual and physical; possession can also be constructive….. these facts on record not only prove actual possession but also constitute constructive possession of the suit property by the Plaintiff. The Plaintiff's elder brother was in possession of the suit property by the Plaintiff's licence and permission. In law, actual possession of any property by license is constructive possession thereof by the licensor.”** 1. **The Plaintiff submitted that the Defendants' rights to the suit land remain extinguished. None of the suits involved the Plaintiff, and none of them stopped time or disrupted the Plaintiff's occupancy for 24 years. The Defendant has never taken any action to evict the Plaintiff, though they happily describe him as a trespasser.** 2. The Defendant submitted that the Plaintiff's alleged occupation of the suit properties was neither open nor peaceful, and any non-interference with the Plaintiff's occupation of the property was necessary, and in lawful deference to the ongoing cases at the Court of Appeal, which deference cannot be termed as inaction or abandonment of rights. 3. It was further submitted that time did not run under the doctrine of adverse possession because the title was the subject of active Court proceedings, which the Plaintiff took advantage of to construct rental units, pocketing millions of shillings in rental income, thereby resulting in unjust enrichment despite full knowledge of the contestations over the title. 4. He added that, without clear evidence of when he entered the suit land, the Court cannot determine when time began to run for the purposes of calculating adverse possession. It is also unclear when the developments were carried out, as there are no approved buildings for the developments and no agreements for utilities. Likewise, the claim that there are tenants on the suit land is not substantiated by tenancy agreements. Overall, the burden has not been discharged by the Plaintiff. 5. The Defendant submitted that the presence of pending litigation in the matter placed the property under the doctrine of lis pendens, and therefore the Defendant's hands were tied and could not take action to remove the trespassers, including the Plaintiff, from the suit lands. In particular, it was submitted that there is a pending case filed by the squatters, being Petition E050 of 2021, consolidated with PET E048 of 2021 and sought and obtained orders of status quo barring the Defendant from evicting them from the suit land, and those orders are still in force. The cases have active Court hearing dates. 6. The Plaintiff admitted that he does not live on the suit land but in Karen, and therefore has not demonstrated animus possidendi. He revealed himself as a squatter only when the Defendant advertised the properties for sale in 2023, and therefore the Defendant was unaware of his alleged occupation until he came forward in 2023. His alleged occupation of the suit land was therefore secret and never open. Time therefore can only start running from 2023. All along, the property has been the subject of multifaceted litigation. The Plaintiff was therefore a speculative opportunist exploiting a legal vacuum. The Plaintiff's occupation was therefore without any hostile intent, since the Defendant was, in the background, battling several cases in Court. 7. The Defendant submitted that the Plaintiff is using the doctrine of adverse possession as a sword for unjust enrichment and property grabbing, which he should not be allowed to do. See the case of Mtana Lewa Vs Kahindi Ngala Mwagambo [2015] EKLR. He added that the doctrine of adverse possession was never intended to reward speculative commercial squatting while litigation is pending. **Analysis and determination** 1. Having considered the pleadings, the evidence adduced at the hearing, the written submissions, and the case law, the only key issue for this Court to determine is whether the Plaintiff has proven title by adverse possession. The other issue is who should bear the costs of the suit. 2. The background of this case is that the Defendant purchased a large parcel of land in Mukuru Kwa Njenga in the Industrial Area, namely LR No 12425, from the National Bank of Kenya on 10/3/1987. The land had apparently been charged to the bank by the previous owners, and upon default under the loan facilities, the bank sold the land to the Defendant in exercise of its statutory power of sale. 3. Shortly thereafter, on 25/9/1987, the Land Registrar lodged a caveat over the suit land. In the meantime, it is contended that squatters and trespassers took advantage of the change in ownership and invaded the land, forcibly taking possession of it. It is also contended that the Defendant later subdivided the land into various plots, some of which included the suit land. 4. The Plaintiff’s case, as I understand it, is that he purchased the suit lands [then described as plot Nos 165 and 166, situated at Kware Kwa Njenga Jua Kali Association] from one Justus Kinoti Mbijiwe on 8/1/2002 for the price of Kshs 400,000/-, which was paid in full. He was issued with two ownership certificates, namely Nos 020 and 021. In turn, Kinoti gave the Plaintiff a power of attorney to act as his attorney in relation to his interests in all the unsurveyed plots at the Association, with respect to plot Nos 165 and 166. 5. Thereafter, it is averred that the Plaintiff took possession of the two suit lands, developed them, rented the premises for commercial and residential use, and has been in occupation for over two decades, and in any event for more than 12 years uninterrupted, continuously and peacefully, and is therefore entitled to title by adverse possession. 6. Against this background, the Court is being called upon to determine whether the Plaintiff has established title by way of adverse possession. 7. The legal provisions on Adverse Possession are contained in the Limitation of Actions Act Cap 22 Laws of Kenya and, in relation to this case, are found in sections 7, 13, 17 and 38 that; **7. Actions to recover land** An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. **13. Right of action not to accrue or continue unless Adverse Possession** (1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as Adverse Possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in Adverse Possession on that date, a right of action does not accrue unless and until some person takes Adverse Possession of the land. **17. Title extinguished at end of limitation period** Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished. **38. Registration of title to land or easement acquired under Act** (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. 1. The**Black’s Law Dictionary, Ninth Edition** defines Adverse Possession as; “the enjoyment of real property with a claim of right when that enjoyment is opposed to another person’ claim and is continuous, hostile, open and notorious.” 1. The rationale of time bar in the recovery of land was set out over a century ago in the case of**Adam v Earl of Sandwich (1877) 2QB 485** where the Learned Bench stated; “The legitimate object of all statutes of limitation is in no doubt to quiet long continued possession, but they all rest upon the broad and intelligible principles that persons, who have at some anterior time been rightfully entitled to land or other property or money, have, by default and neglect on their part to assert their rights, slept upon them for a long time as to render it inequitable that they should be entitled to disturb a lengthened enjoyment or immunity to which they have in some sense been tacit parties “ 1. It is for that reason that Adverse Possession is a fact to be observed upon the land. It is not to be seen in the title even under Registered Land Act Cap 300. A man who buys land without knowing who is in occupation of it risks his title just as he does if he fails to inspect his land for 12 years after he had acquired it. See **Mweu v. Kiu Ranching & Farming Co-operative Society Ltd. [1985] KLR 430**. 2. The Court of Appeal in the case of **Mtana Lewa Vs Kahindi Ngala Mwagandi [2015] eKLR**, defined the concept as follows; “Adverse Possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 1. **T**he Court of Appeal in the case **Leonola Nerima Karani V William Wanyama Ndege[2012]eKLR** while citing the case of **Wambugu Vs Njuguna (1983) KLR 171** laid down the following guiding principles:- 2. The general principle is that until the contrary is proved, possession in law follows the right to possess. 3. In order to acquire by the statute of limitations title to land which has a known owner, that owner must have lost his right to, the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.................. 4. The Limitation of Actions Act, on Adverse Possession, contemplates two concepts; dispossession and discontinuance of possession. The proper way of assessing proof of Adverse Possession would then be whether or not the title 'holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite number of years. 5. Where the claimant is in exclusive possession of the land with leave and licence of the appellant in pursuance to a valid sale agreement, the possession become adverse and time begins to run at the time the licence is determined. Prior to the determination of the licence the occupation is not adverse but with permission. The occupation can only be either with permission or adverse; the two concepts cannot co-exist......... 6. The rule on "permissive possession" is that possession does not become adverse before the end of the period during which the possessor is permitted to occupy the land…….... 7. Adverse Possession means that a person is in possession, in whose favour time can run. Not all persons in possession can have time run in their favour.................time cannot run in favour of a licensee. A licensee therefore has no Adverse Possession (**Hughes v. Griffin [1969) 1 WLR 23."** 8. Apart from the above, the following principles also apply when considering an application under section 7 of the Limitation of Actions Act; 9. For the registered owner of land to be dispossessed, the party claiming ownership by adverse possession must demonstrate the existence of acts done on the suit property which are inconsistent with the registered owner's enjoyment of the land for the purpose for which he intended to use it. See **Ngati Farmers Co-operative Society Limited V. Councillor John Ledidi & 15 others, Nkr CA No. 94 of 2004**. 10. The mere change of ownership of land which is occupied by another person under adverse possession, does not interrupt such person's Adverse Possession. 11. Time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his rights or when his right is admitted by adverse possessor. Assertion occurs when the owner initiates legal proceedings or makes an effective entry into the land. See Githu V. Ndeete [1984] KLR 776. The running of time will not be interrupted by a notice or letter from the true owner to the claimant. 12. Exclusive physical control of the land must depend on the circumstances of each case, the nature of the land and the manner in which land of that nature is commonly used or enjoyed. See Powell V. McFarlane [1977] 38 P & Cr. 452.” 13. With the above principles in mind, I shall now analyse the case of the parties using the prism of the law and case law/precedent. 14. At the onset, I have perused the litigation history of this dispute. HCCC No 876 of 2004 and COA No 32 of 2014 involved the Defendant and the Hon Attorney General, and it centred largely on the issue of whether or not the Defendant was entitled to the compensation of Kshs 6.01 Billion from the Government. The Defendant lost the case at the Court of Appeal. 15. **With respect to** **Misc No 784 of 1996, the squatters sought orders preventing the Defendant from evicting them. However, on 5/5/2006, Justice Ojwang [as he then was] rendered a judgement in which he upheld the Defendant's title and, inter alia, set aside the orders of the Court issued on 23/8/96 and 29/8/96; declared that no person, save under the law or with the leave of the Defendant, may enter upon or remain on the suit land LR No 12425, Nairobi; provided that, in the event of non-compliance with the above order, the Defendant may apply for eviction orders; and provided that any such application made in the High Court shall be heard and disposed of on a priority basis; and directed the Provincial Commissioner, Nairobi, and the Chief, Embakasi Location, to take action as necessary to evict the original Applicants [the Respondents] from the Defendant's property, LR No 12425, Nairobi.** 16. The above decision is fundamentally important because it determined the rights of the parties. The Court held that the Defendant is the lawful owner of the suit land, and that any other person or persons entering or remaining on the land, save under the law or with the Defendant's leave, were to be evicted. 17. Clearly the Plaintiff admits that he is a trespasser and from the wording and tenor of the above judgment any person be it a trespasser and or a squatter were to be evicted from the land of the Defendant. 18. It is noteworthy that the Plaintiff has not shown evidence that the said judgment has been reviewed, set aside and/or appealed. 19. Given that the judgement was delivered on 5/5/2006, it expired on 5/5/2018, having fallen within the statutory time bar provided in law. That being the case, time began to run for the purposes of calculating adverse possession from 2018, and by the time the Plaintiff filed suit in 2023, only 5 years had passed, falling short of one of the key legal threshold of 12 years required for one to claim title for adverse possession. 20. It is also admitted by the Defendant that it did not apply for the eviction of the squatters, including the Plaintiff, because it was embroiled in other pending litigation in the Court, to wit, the COA 32 of 2014. Perhaps the Defendant had hoped for a favourable award of compensation; hence, the necessity to evict the squatters was not a priority then. 21. It has been admitted by the Plaintiff and the Defendant that the Defendant subdivided the land following the decision of the Court on 5/5/2006 – Misc 784of 1996. The act of subdividing the land is an act of asserting title by the Defendant against the squatters whom the Court had already pronounced judgement. This Court cannot revisit the issue of title as it has been determined by the Court in **Misc No 784 of 1996**. 22. Was possession adverse to the title of the Defendant. In his own words the Plaintiff stated as follows; “I purchased the properties on 8/1/2002 vide a sale agreement from Justus Kinoti Mbijjiwe. I bought plots Nos 165 and 166. I signed the sale agreement. I did not carry out any search at the lands office to identify the owner of the lands. I knew the owner of the land was the one who sold me the lands because he sold a number of plots in the area. I asked around and I was told the land belonged to the vendor. I only got to know in 2023 that the lands belong to the Defendant.” 1. Taking the above evidence into account, the Plaintiff says it came to his knowledge in 2023 that the land belonged to the Defendant. In the case of Kenya Limited & Another Vs George Mwachiru Mwango [2018], the Court stated that possession or occupation must be with the knowledge of the registered owner. In this case, if the Plaintiff claims not to have been aware of the Defendant's ownership of the land, then how can he claim that he has occupied it openly and exclusively so much so that the Defendant did nothing for the statutory period of 12 years. 2. The Plaintiff led evidence that he purchased the land from Justus Kinoti Mbijiwe. He acknowledged that he did not conduct any due diligence to determine the land's owner. He asked around and, having learnt that others had purchased from him, [Mbijiwe] alleged bought the properties. The doctrine of adverse possession presupposes that the adverse possessor has a better title than anyone else's, including the title holder. In this case, the Plaintiff acquired land that the Court had adjudicated to belong to the Defendant and took no steps to challenge that decision. The Court finds that the root of his title is tainted. 3. In the end, the Court finds that the Plaintiff has not established title by way of adverse possession. 4. The conclusion is that the Plaintiff's case is unmeritorious and it is hereby dismissed 5. Costs shall be in favour of the Defendant. 6. Orders accordingly. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Mr. Karwanda for the Applicant/Plaintiff 2. Mr. Kenyatta for the Respondent/Defendant 3. CA- Mr Amos