https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4358

Gitonga v Ndichu (Environment and Land Appeal E004 of 2023) [2026] KEELC 4358 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4358 (KLR) Republic of Kenya In the Environment and Land Court at Nanyuki Environment and Land Appeal E004 of 2023 LN Mbugua, J July 9, 2026 Between Charles Mathenge Gitonga Appellant and Nancy Ndichu Respondent (Being an appeal against the Judgment of B. Mararo (SPM) delivered at Nanyuki in CMELC No.189 of 2018 on 18.7.2023) Judgment 1.The appellant was the defendant while the respondent was the plaintiff in the suit before the trial court. The respondent/plaintiff instituted the suit through a plaint dated 13.6.2026 at Nyeri High court in the case ELC 120 OF 2016, which was transferred to the Environment and Land Court on the same date. Then on 25.10.2018, the suit was transferred to the Magistrates court at Nanyuki where it was registered as CM ELC 189 OF 2018. 2.The case for the respondent was that she is the administratix of the estate of the late Francis Ndichu Thaiya who was the registered owner of parcel Euasonyiro/Suguroi Block viii/461 measuring 8.87ha ( the suit land) which he had bought from one Peter Miaraho Kahiro in year 2013. 3.That after buying the suit land, the couple left for United States where they stayed for a month. On coming back, her husband fell sick and even stayed in India for specialized treatment for 5 ½ months. It appears that he passed on as the plaintiff was to file a succession case no. 1517 of 2015 at the High Court. 4.That as she set out to gather the estate of her husband, she discovered in year 2016 that the appellant had lodged a caution on the suit land, prompting her to visit the land where she found that the defendant had cultivated about 1 acre of the suit land and had put up structures. That she requested the appellant to vacate the suit land but he turned violent on her and her emissary, one Peter Kimondo. 5.The respondent claimed that she had suffered loss of user and damage on account of the trespass and therefore prayed for judgment in the following terms;1.An order that the defendant, Charles Mathenge Gitonga, his servants, family, agents or any other person claiming through or under him be evicted from LR. No. Euasonyiro/Suguroi Block VIII/461 at his own cost and the eviction be supervised by the Officer Commanding Wiyumiririe police station to safeguard law and order.2.A permanent injunction restraining the defendant either by himself, his servants, agents or family or anyone claiming through or under him from in any manner whatsoever trespassing into or interfering with L.R. NO Euasonyiro/Suguroi Block VIII/461 after being evicted.3.General damages for trespass plus interest. 4.Costs of this suit plus interest.” 6.The appellant opposed the suit vide his Amended statement of Defence and Counterclaim dated 6.7.2018 where he denies the claim of trespass. His counterclaim was that sometime on 23.10.1995, the subject property was offered for sale by one Peter Miaraho Muriuki, of which he bought the land and was shown his portion on the ground. He avers that the title was extinguished by way of adverse possession and he is therefore entitled to 3 acres out of the suit land. 7.The appellant sought for the dismissal of plaintiffs claim. 8.At the trial, the respondent Nancy Njeri Ndichu testified as PW1. She adopted her witness statement dated 13.6.2016 as her evidence and also produced the documents in her list as exhibits which are;a.a copy of title deed for parcel L.R. No. Euasonyiro/Suguroi Block VIII/46.b.Certificate of official search for L.R. No. Euasonyiro/Suguroi Block VIII/461c.Letter of administration over the estate of the late Francis Ndichu Thaiya P & A 41 dated 22/9/2015.d.Requisition to compel attendance at Wiyumiririe Police Patrol Base dated 11/4/2016e.Wiyumiririe Police Patrol Base OB No. 6/11/2016.f.Letters from the area Assistant Chief dated 11/9/2005 and 21/4/2016.g.Photograph copies showing the temporary structures built on the suit land.Her witness statement mirrors her pleadings. 9.On cross examination, Pw1 stated that she does not know when the appellant bought the suit land. That when they went to the police station, Miaraho brought an agreement signed by the chief witnessed by Miaraho and Mathenge stating that Mathenge was living on the land illegally and that he was going to vacate. However, Mathenge did not leave. 10.On re-examination, Pw1 stated that Mathenge is the one who looked for purchasers, and that is how he met her husband. 11.PW2 was one Peter Miaraho Miruri. He adopted his witness statement dated 13.6.2016 as his evidence. He avers that in 1993, he bought two parcels of land Euasonyiro/ Suguroi viii/457 and 461 from a Dr. Kanyi, of which he sold the latter parcel to the husband of the respondent, adding that the said parcels were vacant. That in year 2004, he found that the appellant had occupied a portion of the suit parcel 461 while one Jane Wairimu Gitonga had occupied part of parcel 457. That upon asking them to vacate the parcels, the appellant issued threats, so the witness reported the matter to the assistant chief. That on 23.9.2005, they were summoned at the chief’s place where a resolution was made for the two to vacate the parcels. Jane vacated, but the appellant did not as he claimed that his wife and two children were unwell, thus he needed more time. 12.That in year 2008, the appellant informed the witness that he was looking for money to buy the land. Then in year 2012, he telephoned him saying that he had gotten a purchaser, they all agreed to meet the prospective buyer, Peter Kimondo Gitonga, where the price was set at sh. 80 000. That later, Peter Kimondo informed the appellant that he was not in a position to buy the land, thus he introduced his friend, Francis Ndichu Thaiya as a buyer who proceeded to buy parcel 461. He was to later sell parcel 457 to Kimondo. He denies having sold any land to the appellant. 13.On cross examination, Pw2 reiterated that he bought the two parcels 457 and 461 from a Dr. Kanyi though he has no agreement to that effect. He is aware that the appellant occupied one acre of the suit land, but he does not know when he started the occupation. He asked him to leave the land in 2005 but as at the time he sold the land to Ndichu, he had not left the land. Similarly, he does not know when Jane occupied parcel 457. He avers that both the appellant and Jane were his neighbours. He stated that the appellant is the one who brought to him a buyer of the suit parcel, of which he paid him a commission. To this end, the appellant introduced to him one Peter Kimondo who in turn introduced the 2nd buyer. 14.PW3 was Peter Kimondo Gitonga. He adopted his witness statement dated 13.6.2016 as his evidence. He avers that the respondent is a wife of Francis Ndichu Thaiya, who was his friend and they hailed from the same village at Nairutia. That in year 2012, the appellant approached him with information that the owner of parcel 461 desired to sell the same. That when they eventually met, the seller quoted a price that he could not afford. Thus Pw3 alerted his friend Ndichu about the land, he became interested, so he introduced him to the seller. Eventually Ndichu bought the suit parcel. 15.That in year 2016, the respondent telepnoned him with information that the appellant had lodged a caution on the suit land. 16.In cross examination, Pw3 stated that his relationship with the appellant was one where Jane Wairimu Gitonga is his Aunt. He purchased parcel 457 from Pw2 and the land boarders that of Jane’s husband. He had known the appellant for more than 20 years and he had constructed on a portion of parcel 461. He had however not known Pw2, who was introduced to him by the appellant. 17.In re-examination, Pw3 stated that the appellant had told him that he was selling parcel 461, but said that the owner stays in Mukurweini. They agreed to meet, thus they met at Hillrock in Nyeri and he could not afford the asking price made by Pw2. 18.The appellant Charles Mathenge Gitonga testified as DW1 where he identified Jane Wairimu as some one who is like his mother, of which Pw3 is her nephew. He adopted the affidavit of Jane Wairimu sworn on 29.6.2016 as his evidence along with the annexures. The said affidavit at page 40 of the record of appeal is however sworn by Dw1. There in, he depones that in 1995, he learnt from his employer, one Gitonga Warugongo that Nyeri properties agencies were selling some parcels through Lawyer Lucy Mwai, of which he bought 3 acres while his employer bought 5 acres. He was shown beacons of the 3 acres and he took possession where he put up developments. He contends that he was growing wheat and Rhodes grass on the suit land. 19.That he was in quiet possession of the said land until year 2013 when Pw2, the erstwhile owner started interfering with the land. He avers that the genesis of the letter of 23.9.2005 was due to the threats and intimidations made to him by Pw2. He avers that by the time the present owner was acquiring the title, the requisite period under the law had expired. 20.The documents availed by Dw1 in his affidavit are; the title to parcel 461 indicating that Pw2 was registered as the owner of the land on 10.12.1997 while Ndichu was registered on 1.3.2013, letter of 23.9.2005, letter of 29.5.2013, two receipt from Lucy Mwai advocates and the acknowledgment of the receipts. 21.On cross examination, Dw1 stated that he knows Pw3, but denies having introduced Pw2 to Pw3. He avers that he has nothing to show that he bought land from Miaraho, Pw2. On being shown his receipts, he stated that the same are for 462 and 537 while the acknowledgment was for 462. He conceded that he had no receipt for 461. He has no title. He admits to having gone to the chief where he was told that he has no land and he signed the document of 2005 where he was to vacate the land in year 2006. 22.On re-examination, Dw1 denied that he got a buyer for Pw2 ( Miaraho), though he knew him in 1995. 23.In a judgment delivered on 18.7.2023, the trial court entered judgment in the following terms;a.The defendant’s suit by way of amended counterclaim dated 6th day of July, 2018 is hereby dismissed with costs.b.That an order is hereby issued that the defendant, Charles Mathenge Gitonga, his servants, family, agents or any other persons claiming through or under him be evicted from L.R. No. Euasonyiro/Suguroi Block VIII/461 at his own cost and the eviction be supervised by the officer Commanding Wiyumiririe Police Station to safeguard law and order.c.That an order of permanent injunction is hereby issued restraining the defendant either by himself, his servants, agents or family or anyone claiming through or under him from in any manner whatsoever trespassing into or interfering with L.R. No. Euasonyiro/Suguroi Block VIII/461 after being evicted.d.That the plaintiff shall have kshs 500,000/- as general damages for trespass plus interest from the date of this judgment till payment in full.e.The plaintiff shall have the costs of the suit and the counterclaim plus interest” 24.Aggrieved by the aforesaid decision, the appellant filed his Amended Memorandum of appeal raising four (4) grounds of appeal enumerated as follows; That the learned magistrate erred in law and fact in failing to apprehend the basic structure of plaintiff’s claim vis a vis that of the respondent, failing to analyse the issues, failing to appreciate that the appellant had occupied the suit property for a long period of which he had acquired the land by way of adverse possession. 25.The appellant therefore seeks the following orders;a.An appropriate review of the judgment of the trial court, its setting aside of the consequential orders and a substitute of the decree and consequential orders.b.Costs in the subordinate court and the appeal herein.” 26.The appeal was heard by way of written submissions. The submissions of the appellant are dated 20.1.2026. He argues that the trial could failed to consider that he had acquired the suit land by way of adverse possession whereby he entered the suit land in 1995, the sale was not concluded but he remained on the land for 18 years by the time the respondents title was issued in year 2013. To this end, he argues that the respondent had admitted that they never took possession of the suit land. 27.The appellant cited the case of Kasuve V Mwaani Investments Ltd & Others 2004 1KLR 184, where the Court of Appeal held as follows;“In order to be entitled to the land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of 12 years either after dispossessing the owner or by the discontinuation of possession by the owner on his own volition.” 28.He contends that the letter of 2005 did not interrupt his occupation, adding that he was not dispossessed of the 3 acres out of the suit land. To this end, the appellant cited the case of Benson Mukuwa Wachira Vs Assumption Sisters of Nairobi Registered Trustees (Civil Appeal No. 121 of 2006), where the court held that;“The High Court correctly stated in Amos Weru Murigu V Marata Wangari Kambi & Another (Supra) “…………..as regards assertion of title, it is not enough for a proprietor of land to merely write to the trespasser (to vacate). A letter by the proprietor, even if it be through an advocate or the chief of the area, does not amount to assertion of title in law and cannot therefore interrupt the passage of time for the purpose of computing the period of adverse possession. For there to be interruption, the proprietor must evict or eject the trespasser but because eviction is not always possible without breach of peace, institution of suit against a trespasser does interrupt and stop the time from running.…..25. A trespasser who promises to leave the land on which he is trespassing but does not leave cannot be said to acknowledge the title of the owner, nor can a trespasser who tells the owner that he would like to buy the property but does not buy it. And such promise to buy the land or to vacate which does not materialize does not in adverse possession interrupt or stop time from running.” 29.The submissions of the respondent are dated 23.1.2026, where it is argued that a claim of adverse possession cannot be pleaded in a plaint or a counterclaim, and that such a claim has to be brought by way of a an Originating Summons. The respondent cited the cases of Peter Mbiri Michuki vs. Samuel Michuki ( 2014) eklr and Dismus Wafula Kilwale vs Absolom Wanyonyi & Another (2018) eklr to buttress the aforementioned point. 30.It is further argued that the appellants case at the trial court was riddled with contradictions whereby he was mixing the claim of proprietary ownership with adverse possession. That by claiming ownership, the appellant effectively stopped the clock on adverse possession. To this end, the appellant relied on the cases of Githu vs Ndeete ( 1984) KLR 776 and Samuel Miki Waweru v Jane Njeri Richu (2009) eklr. Analysis and Determination 31.The duty of the 1st appellate court was explained in the case of Selle and Another Versus Associated Motor Boat Company Ltd & Others [1968] Ea 123, where it was observed thus:-“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion. Though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial Judges findings of fact if it appears either that he has clearly failed in some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence on the case generally.” 32.I have considered the pleadings, the evidence on record as well as the rival submissions. The issue for determination is whether the trial court erred in dismissing the counterclaim of the appellant while allowing the claim of the respondent. 33.The appellant argues that his claim on adverse possession was not considered by the trial court. A perusal of the record at page 70 of the record of appeal reveals that it was brought to the attention of the court that a preliminary objection had been raised at paragraph 6 of the reply to defence and defence to counterclaim on grounds that the counterclaim was defective. This gave rise to the prosecution of the preliminary objection culminating in a ruling delivered on 3.7.2018 as captured at paragraph 73 of the record of Appeal. However, that ruling which touches on the pleadings of the appellant has not been availed as part of the record. 34.In the case of Ready Consultancy Co. Ltd v Charo & another (Appeal E037 of 2022) [2024] KEELRC 166 (KLR) (8 February 2024) (Judgment) Neutral citation: [2024] KEELRC 166 (KLR), the court went ahead to strike out a an appeal where an incomplete record had been filed. However, this court hesitates to go that route in view of the fact that the said ruling could easily be traced in the original record of the trial court. The decision rendered by the court on 3.7.2018 in respect to the preliminary objection was that the counterclaim of the appellant was defective, it was struck out but he was granted leave to amend his pleadings accordingly within 15 days. He complied by filing the amended defence and counterclaim on 10.7.2018, however, this court does not discern much difference as between the original pleadings of the appellant and the amended documents. Needless to say that the court will not make heavy weather on the issue as non of the parties pursued the same after the aforementioned ruling. 35.The ingredients of adverse possession were discussed by the Court of Appeal in the case of Mtana Lewa –v- Kahindi Ngala Mwangandi (2005)eKLR where it was held that:“Adverse Possession is essentially a situation where a person takes Possession of land, asserts rights over it and the person having title to it omits or neglects to take action against such person a in assertion of his title for a certain period, in Kenya 12 years.” 36.It is also a well settled principle that a party claiming Adverse Possession ought to prove that this Possession was “nec vi, nec clam, nec precario,” that is, peaceful, open and continuous. The Possession should not have been through force, nor in secrecy and without the authority or permission of the owner. 37.To start with and as rightly submitted by the respondent, the appellant cannot claim land by title and at the same time claim the land through adverse possession. What more, it is trite law that what is pleaded must be in tandem with the evidence adduced. In his pleadings, at paragraph 7 and 8, the appellant pleaded that;“Sometime on or about 23.10.1995 the subject property was offered for sale among other properties by one Peter Miaraho Muriuki and it was available to any willing buyer.” 38.However, in his supporting affidavit of 29.6.2016, the appellant is advancing a claim of having bought the suit parcels from Nyeri properties Agencies through advocate Lucy Mwai. Nowhere in the said affidavit does he mention Miaraho as the one who sold to him the land. That inconsistency in the pleadings and the evidence renders the case of the appellant fatal. 39.The other question to interrogate relates to the entry to the suit land . In the case of Gabriel Mbui v Mukindia Maranya [1993] eKLR, the court held that;“The entry and occupation must be with, or maintained under, some claim or colour of right or title, made in good faith by the stranger seeking to invoke the doctrine of adverse possession as against everyone else. In other words, the intruder must have some apparent title, the appearance or semblance of title but not the reality of it, for the expression “colour of title” in law means, that which is title in appearance but not in reality. He must have with him his own apparent right which affords him some semblance of title under which he claims to found his occupation of the land independently of anyone else’s power.” 40.Just when did the appellant enter the suit land?. Which land did he enter?. Again the fall back starts with the pleadings. He avers that he bought the land from Pw2, but in his evidence, he gives a different version, of having bought the parcel from Nyeri properties Agencies. His documents, the two receipts indicate that he was paying for parcels 462 and 537. The acknowledgment reads parcel 462. Those documents do not align with appellants occupation of the land 461 in 1995. 41.The only document which places the appellant to the occupation on the suit land is the chief’s letter of 23.9.2005 where he agreed to vacate the land by 31.3.2006. Even if time was to be computed from the said date, the requisite period for a claim of adverse possession had not matured as at 13.6.2016 when this suit was filed. 42.Another issue relates to permission. At paragraph 9 of his pleading, the appellant stated that;“The defendant avers that he duly took possession of the said three acres of land and has been developing on the same ever since to-date and hence is not a trespasser nor is his occupation there o illegal as it was with the consent of the lawful owner.” 43.As parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings.. For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. See IEBC V Stephen Mutinda Mule & 3 Others (2014) eKLR. 44.The admission by the appellant that he was in occupation of the land with permission of the owner again renders his case fatal. 45.The fact that the appellant and her husband did not settle on the suit land does not in itself render the claim of adverse possession successful. 46.Of great concern is the fact that although the appellant was given an opportunity to amend his pleadings, he did not seek any specific orders relating to his claim in the amended counterclaim. He simply stated that ;” the defendant prays that the plaintiff case against him be dismissed with costs and judgment be entered in terms of the counterclaim.” 47.He who alleges must discharge the burden of proof as required by section 107 of the Evidence Act. And in the case at hand, the appellant did not meet the requisite criteria of an adverse possessor of the suit land. 48.As it were, the respondent gave a firm and consistent account of how her husband bought the suit land from Pw2 through Pw3 and the appellant, of which the appellant did not surmount sufficient evidence to challenge the claim of the respondent. 49.A scrutiny of the judgment delivered by the trial court reveals that the said court did not analyse the question of adverse possession in depth. However, the court did note that the appellant had come to court claiming ownership of the suit land through purchase and at the same time he was claiming the land through adverse possession. Thus despite the shortcoming in the analysis, the trial court was still spot on in disallowing the claim of the appellant. 50.In the end, I have no reasons to disturb the decision of the trial court. Thus this appeal is hereby dismissed with costs to the respondent. DATED, SIGNED AND DELIVERED AT NANYUKI THIS 9TH DAY OF JULY 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Nancy Mwangi – C/AM/s Ngari h/b for Mr. Nderi for appellantM/s Wachira h/b for Muchiri wa Gathoni for respondent