https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4084

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLOS EO13 OF 2024** **BETH WAMBUI CHEGE……………………..……………..….………………...…….. APPLICANT** **VERSUS** **KARANJA KARIUKI ……………..……………………….………..DEFENDANT/RESPONDENT** **JUDGMENT** 1. The Applicant seeks the following reliefs against the Respondent in her originating summons dated 10-7-2024. 2. **A declaration that the title of the land parcel number Loc.3/Kariuki/451 has been extinguished by the Plaintiff’s adverse possession thereof for a period of more than twelve (12) years in terms of the Limitation of Actions Act.** 3. **That the Plaintiff has become entitled by adverse possession to the land parcel comprised in the title number Loc.3/Kariva/451 in Murang’a County and registered under name of Karanja Kariuki.** 4. **An order that the District Land Registrar Murang’a to register the Applicant as the absolute proprietor of the land parcel measuring 2.71 acres and known as Loc.3/Kariua/451 in place of Karanja Kariuki.** 5. **That the District Registrar Murang’a be directed that the order herein shall be instrument of transfer of ownership of the land parcel reference number Loc.3/Kariua/451 to the Applicant.** 6. **That the costs of this suit be provided for.** 7. The Applicant’s case is as follows. Firstly, in the year 1961, the suit land was registered in the name of Kariuki Irungu who is now deceased. The late Kariuki Irungu did not occupy the suit land. Instead, it was Chege Irungu who occupied the land. Chege Irungu is the husband of the Applicant. He married the Applicant in the year 1968 and the two settled on the suit land. The Applicant has never left the suit land since then. In the suit land, the Applicant has buried her husband Chege Irungu, five (5) Children, 1 daughter in law and 1 grandchild. She has extensively cultivated the suit land. 8. Secondly, Kariuki Irungu, the first registered owner of the suit land was a Son of Irungu Njagi. He was registered to as a trustee for the whole family because he was the first born. His father, Irungu Njagi, had two wives. One wife was Nyaruburi Irungu and the other was Wambui Irungu. Nyaruburi had three (3) children. Only one of them was a son. He was Kariuki Irungu. Wambui, the other wife had six children. They were Kariuki Irungu,Chege Irungu, Wachari Irungu and Njuguna Irungu. It is the Kariuki Irungu whose mother was Nyaruburi who was the first registered owner of the suit land. When he was registered as owner of the suit land, he had already passed on. It is then that Kariuki Irungu from the second wife took advantage of the absence of Kariuki Irungu Nyaruburi to fraudulently register himself as the owner of the suit land because they shared the same name. Kariuki Irungu Son of Wambui took the title deed for Kariuki Irungu son of Nyaruburi. The Applicant’s husband Chege Irungu was a brother to Kariuki Irungu son of Wambui. He was the one allowed by Kariuki Irungu Nyaruburi to occupy the land. He died in the year 2008. 9. Thirdly in the year 2000, the Applicant’s husband, Chege Irungu filed a Succession Cause in respect of the estate of Kariuki Irungu Nyaruburi but the Court sitting at Murang’a is SPM’s Court Succession Cause No. 229 of 2000 gave the land to Kariuki Irungu Wambui alone. Chege Irungu appealed against the decision in Nyeri High Court and Appeal No. 107 of 2003. Chege Irungu who is the Applicant’s husband died when the appeal was pending at Nyeri. It was eventually dismissed for want of prosecution on 26-9-2008. It is more than 16 years since the dismissal of the appeal. Neither Kariuki Irungu Wambui nor his family ever lived on the suit land. 10. Finally, the Respondent and his family have lately been harassing and threatening the Applicant with eviction from the suit land and they have even killed her cows. It is for the above reasons that she prays for the orders in the originating summons. 1. In support of her case, the Applicant filed the following evidence. 2. **Copy of the register for the suit land showing entries from 16-3-1961 to 15-4-2019.** 3. **Copy of certificate of official search whose date is not clear.** 4. **Copy of certificate of official search for the suit land dated 8-10-2013.** 5. **Copy of letter dated 3-3-2024 by the Chief of Kibage Location.** 6. **Thirty one (31) photographs showing graves, a homestead with several houses, banana plants, napier grass, maize plants, coffee trees and avocado plants.** 7. **Copy of letter dated 29-5-2024 by Kariua Farmers Co-operative Society Ltd.** 8. **Copy of receipt dated 18-3-81.** 9. **Court records for SPM Murang’a Succession Cause No. 229/2000 and Nyeri Civil Appeal No. 107 of 2003.** 10. The summons is opposed by the Respondent whose reply is in in the following terms. Firstly, burial of the Applicant’s husband and other relatives on the suit land does not confer title to the Applicant. Secondly, on 16-5-2005, Gacheru Advocate issued the Applicant with a demand letter asking her to vacate the suit land. Thirdly, the Respondent has filed a counterclaim seeking the Applicant’s eviction because she is a trespasser and she ought to be evicted by a Court bailiff. Fourthly, the issue of ownership of the suit land was substantially litigated in Murang’a SPMC Succession Cause No. 229 of 2000 and the Respondent’s father declared owner of the land making this suit res judicata after the appeal filed by the Applicant’s husband was dismissed. Fifthly, the Applicant is a vexatious litigant who is hell bent on filing frivolous suits such as this. Sixthly, it is not true to say that the Applicant occupied the land in 1968 because in the year 1969 when the Respondent left the area for Nairobi, the Applicant was not in occupation of the suit land. Finally, the Applicant’s occupation of the suit land has not been quiet because after the Respondent’s father’s death, he filed Succession Cause No 76 of 2002 at Kigumo SPMCC and the suit land was confirmed in his favour. 11. In support of his case, the Respondent filed the following evidence. 12. **Replying affidavit dated 9-10-2024.** 13. **Copy of letter dated 16-5-2005 issued by Gacheru J. Advocates.** 14. **Witness statements by the Respondent, James Maina Kariuki and John Wagacha Nguruku all dated 16-12-2024.** 15. **Copy of judgment in Murang’a SPMC Succession Cause No. 229 of 2000 dated 7-8-2003.** 16. **Copy of certificate of official search dated 3-2-2025.** 17. At the trial on 3-3-2026 and 5-5-2026, a total of five(5) witnesses testified. They included the Applicant, the Respondent and his two witnesses and Monica Wangari, the Chief of Kibage Location. The evidence by the Applicant and the Respondent did not deviate from their stated positions in their pleadings. Counsel for the Respondent was to file written submissions by 26-5-2026 and the one for the Applicant by 17-6-2026. By 26-6-2026 none of them had filed any submissions. 1. I have carefully considered all the evidence adduced in this case by both sides including the supporting and replying affidavits, the witness statements, the documents and the testimony at the trial. I find that the following issues arise. 2. **Whether the Applicant has proved all the ingredients of adverse possession in her evidence.** 3. **Whether the Plaintiff and his father have proved that they own the suit land.** 4. **Whether Murang’a SPMC Succession Cause No. 229 of 2000 settled the issue of ownership of the suit land.** 5. Regarding the first issue, I have no doubt that the Applicant has proved all the necessary ingredients of adverse possession in this case. I find that the Respondents right to recover the suit land has been extinguished in terms of Sections 7,13 and 17 of the Limitation of Actions Act because the Applicant and her family have occupied the suit land for more than the statutory twelve (12) years. There is overwhelming evidence from the Applicant, both oral and documentary, to prove that she and her late husband occupied the suit land in the sixties and used it openly as theirs. They built their home on the land as can be seen from the photographs of the homestead, planted food crops and buried their dead on the land. If the Respondent and his father opposed the Applicant’s husband’s occupation of the suit land, the time to do it was in the sixties. Their failure to challenge the occupation by the Applicant and her husband is acquiescence. It is also my finding that the letter issued to the Applicant by the Respondent’s advocate dated 16-5-2005 was too little, too late. By the time the letter was served upon the Applicant, twelve years had already elapsed. The Applicant had been living on the land latest since 1968. The Applicant was in actual possession, the possession was open and notorious, the Respondent did not at any time occupy the land, the occupation was continuous before the letter of 2005 and it was without force. As per the finding in the case of **Mtana Lewa vs Kahindi Ngala Mwagandi Civil Appeal No. 56 of 2014** adverse possession arises where a person takes possession of land, asserts rights over it, and the owner neglects to assert his title for 12 years. Possession by the claimant must neither be by force, nor stealth, licence and msut be continuous , open and of such extent as to show that it is adverse to the owner’s title. All the above prerequisites exist in this case. 6. As for the second issue, I find that the Respondent’s father was a masquerader and not the owner of the land. I find that the true owner of the land was Kariuki Irungu whose mother was Nyaruburi and not Kariuki Irungu whose mother was Wambui and who was the Respondent’s father. The Applicant’s evidence which I found credible and consistent was not controverted by any evidence from the Respondent. No effort was made by the Respondent to dent this impeccable evidence. The fact that the Applicant is older than the Respondent makes her evidence all the more credible. It explains why the Respondent’s father could not dare seek to evict the Applicant’s husband from the land because it was clear that he had been authorized by Kariuki Irungu Nyaruburi to occupy the land. 7. On the third and final issue, I find that Murang’a SPMC Succession Cause No. 229 of 2000 did not determine the issue of ownership of the suit land. It only determine who were the rightful heirs of Kariuki Irungu whose mother was called Wambui. It did not delve into the question of adverse possession or the issue of how the land was acquired by Kariuki Irungu. The trial Court was not even made aware that there was another Kariuki Irungu Nyaruburi who was the lawful owner of the suit land and that Kariuki Irungu , the father of the Respondent had impersonated the real owner of the suit land. 8. In conclusion and for the reasons given, I enter judgment for the Applicant as prayed for in the originating summons dated 10-7-2024. In the same vein, I find **no merit** in the Respondent’s counterclaim dated 9-10-2024, which I dismiss. Costs to the Applicant. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 30th day of June, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony** **Plaintiff’s Counsel – Mr Mbugua** **Defendant’s Counsel – Mr T M Njoroge**