https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3196

 ***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT AND LAND COURT AT NAROK*** ***ELCLOS NO. E003 OF 2025*** ***IN THE MATTER OF SECTIONS 37 AND 38 OF THE LIMITATION OF ACTIONS ACT, CAP 22 LAWS OF KENYA*** ***AND*** ***IN THE MATTER OF: ORDER 37 RULE 7 OF THE CIVIL PROCEDURE RULES ,2010.*** ***AND*** ***IN THE MATTER OF: ACQUISITION OF TITLE BY ADVERSE POSSESSION OF PARCELS OF LAND KNOWN AS NAROK CISMARA/OLOLUNGA/122,162.164.165,166,167 AND 168*** ***BETWEEN*** ***RICHARD CHELULE &237 OTHERS...... PLAINTIFFS/APPLICANTS*** ***VERSES*** ***MARISIN KEDUWO& 7 OTHERS….. DEFENDANTS/RESPONDENTS*** ***JUDGMENT.*** 1. The matter for determination herein is an ***Originating Summons*** brought under ***section 38*** of the ***Limitation of Actions Act***, Cap 22 Laws of Kenya, and Order 37 rule 7 of the Civil Procedure Rules 2010, wherein the Plaintiffs/Applicants have sought for orders that the Defendants herein be summoned to court for a claim by the plaintiffs/applicants that they are entitled by adverse possession and / or prescriptive rights to the following properties, which are registered in the names of the Defendants; ***a***) ***Narok/ Cis Mara/ Ololunga/122;*** ***b) Narok Cis Mara Ololulunga/162.*** ***c) Narok Ololulunga/164,*** *d****) Narok Cis Mara/ Ololulunga/165,*** ***e) Narok Ololulunga/166,*** ***f) Narok Cis Mara/ Ololunga/167,*** ***g) Narok Cis Mara/Ololulunga/168.*** 1. Therefore, the Plaintiffs/Applicants seek for the following orders; 2. ***A declaration that the plaintiffs/applicants have acquired titles to the suit properties by adverse possession;*** 3. ***an order directing the land registrar to cancel the title deeds in the names of the Respondents and register the plaintiff/applicants as the absolute proprietors of the suit properties in common.*** 4. ***permanent injunction restraining the Respondents, their agents, or anyone acting on their behalf from interfering with the applicant’s quiet possession and occupation of the suit properties*** 5. ***costs of this suit and interest thereon;*** 6. ***Any other relief that this honourable court deems fit and*** ***just to grant.*** 7. This ***Originating Summons*** is supported by the following grounds; that the Plaintiffs applicants either personally or through their deceased predecessors in title have been in open, exclusive , continuous and uninterrupted occupation and possession of the suit properties for a period exceeding ***12 years*** since ***1997;*** therefore, the Plaintiffs/Applicants’ occupation has been adverse to the interests of the Respondents with the intention to exclude them from the suit properties; that by virtue of ***section 7*** of the ***Limitation of Actions Act,*** the Respondents title to the suit properties has been extinguished; that by dint of ***section 38*** of the ***Limitation of Actions Act,*** the Plaintiffs/Applicants are entitled to be registered as the absolute proprietors of the suit properties. 8. The **Originating Summons** is also supported by the Affidavit of ***Kiplangat Peter Towett,*** who averred that he has authority to swear the said Affidavit on behalf of the other Plaintiffs/ Applicants. It was his further averments that he was born and raised on the suit land, more than ***35 years ago***, and he has never known any other home, apart from the suit properties. 9. It was his contention that their great grandparents and grandparents and parents first occupied the suit properties on ***1940s*** before the property was included in the ***Ololunga Adjudication Section***. He also contended that sometime in 1982, a group of 24 families formed ***Kilanda Village Group***, which filed a suit against the Respondents herein at ***Nakuru High Court*** challenging the acquisition of the suit property by the respondents. A judgment was entered in favour of the said Plaintiffs/Applicants on ***6th May 1993,*** as per the amended plaint. 10. However, the Respondents successfully appealed against the said judgment, being ***Civil Appeal No 140 of 1996***, and the Judgement of the High Court was set aside on `**17th October** ***1997,*** and the land reverted back to the Respondents, and the Respondents were then registered as the owners. However, the Respondents has *never taken possession* of the suit land and/ or evicted the Plaintiffs/ Applicants herein for the last 27 years. 11. That this parcel of land was initially ***Narok Cis Mara/*** ***Ololunga/122***, which was subdivided into eight parcels, but no actual beacons were placed on the ground, and the Plaintiffs/Applicants cannot tell the exact boundary of each parcel of land. Further, that the Respondents have never sought to evict the Plaintiffs/Applicants from the suit properties. 12. It was his further contention that since the delivery of judgment by the Court of Appeal on ***17th October 1997***, the Plaintiffs/Applicants have continued been in ***open, exclusive, continuous*** and ***uninterrupted occupation*** of the entire suit properties. 13. The deponent also claimed that the Plaintiffs/Applicants have established their homesteads, built permanent structures / homes, buried their loved ones within the suit properties without any interruptions or resistance from the Respondents herein. Further, that they have been farming and tiling the properties ***openly without any*** interference and/ or disruption from the respondents. 14. It was his further contention that the Plaintiffs/ Applicants have demarcated the suit properties in the glare view of the public, and there has never been any resistance or interruption from the Respondents, who have never taken any steps to assert their rights over the suit properties. 15. The Respondents were served with ***Summons to Enter*** ***Appearance*** through substituted service as is evident from the Affidavit of Service dated ***27th June 2025,*** sworn by ***Owour Okumu advocate***, and the annexture thereto, which is an advert of the substituted Summons to Enter Appearance through the Newspaper advertisement. 16. Earlier on, one ***Samuel Omari,*** a registered court process server swore and filed an Affidavit of Service dated ***5th May 2025***, wherein he deponed that his attempt to serve the Respondents hit a snag as theIR whereabouts was unknown, and even the area Assistant Chief did not know their whereabouts, and he returned the summons unserved. 17. Even with the substituted service, the Respondents did not ***enter appearance*** nor ***file any defence***. The matter proceeded for hearing as an undefended matter, and the Plaintiffs/Applicants called seven witnesses to support their claim, who adopted their witness statements as their evidence in chief, and produced the list of documents as their exhibits in support of the claim. ***PLAINTIFFS/APPPLICANTS CASE.*** 1. ***Pw1*; *Kiplangat Peter Towett*** of ***ID NO. 28618820***, from Kilanda area in Narok adopted his witness statement dated ***11th November 2025***, as his evidence in chief, and stated that he was born on the suit property where his great grand parents and grandparents lived from 1940s. He reiterated that he knows about the history of the suit properties, which are registered in the names of the Respondents. 2. He furthertestified that though the Plaintiffs/Applicants had filed suit against the Respondents herein at ***Nakuru High Court***, and they won the case, the said judgement was overturned by the Court of Appeal vide its judgement of ***17th October 1997*** in ***Civil Appeal No*** ***140 of 1996***, the Respondents have never enforced the said judgment evicting them or issuing them with notice to vacate, which is about ***27 years*** old. 3. He also testified that the Plaintiffs/Applicants and himself have continued to occupy the suit property without any interruption or permission of the Respondents or any other person for a period exceeding 27years. It was his further testimony that they have established ***homes, constructed permanent houses, cultivated various crops, grazed livestock, erected and demarcated boundaries*** to define their homestead. Further that all the other Plaintiffs/Applicants have undertaken massive development on their respective portions of land without facing any challenge from anyone, the Respondents included. 4. He claimed that **their possession** has been hostile and adverse to the title of the Respondents, and they have had intentions of excluding the Respondents from the suit properties, and therefore, they are entitled to be registered as the proprietors of the suit properties in common. It was his testimony that the respondents have never cultivated any part of this land, built any structure, or even visited to assert their ownership since the Court of Appeal Judgment of 1997. 5. Since the matter proceeded as undefended in the absence of the Respondents, this witness was not cross-examined. The other witnesses were ***Pw2, Samuel Soi, Pw3, Samuel Baliach, Pw4 Rusi Mastamet, PW5. Ericana Kipngetich. Pw6 Kipngetich Leonard Too and PW7, Kiptonui Arap Mosonik*,** who all adopted their witness statements dated ***11th November*** ***2025,*** as evidence in chief, and adopted the exhibits produced by Pw1, as their respective exhibits in support of the claim herein. 6. After the viva voce evidence, the Plaintiffs/Applicants through their advocates ***JC Law Advocates LLP***, filed written submissions to support their claim and urged the court to allow the instant Originating Summons. 7. The Plaintiffs/ Applicants identified the issues for determination as follows; 8. ***Whether the suit properties belong to the respondents*** 9. ***Whether the applicants have been in open, exclusive, continuous and uninterrupted occupation for more than 12 years;*** 10. ***Whether such occupation has been adverse within the meaning of the law.*** 11. On the first issue, the Plaintiffs/ Applicants submitted that since they produced the ***certificates of official search*** confirming that the suit properties are registered in the names of the Respondents, then there is no dispute that the Respondents herein are the registered owners of the suit properties. However, it was their submissions that the Respondents ownership has been extinguished by operation of law under ***section 7*** of the ***Limitation of Actions Act.*** 12. On the second issue, the Plaintiffs/Applicants relied on the case of ***Wambugu vs Njuguna (1983) KLR 173***, where the court of Appeal held that ***adverse possession*** contemplates two concepts; ***dispossession*** of true owner, or discontinuance of possession by the true owner. It was their submission that since ***17th October*** ***1997,*** when the Court of Appeal entered judgment in favour of the Respondents, the said Respondents have never evicted the Plaintiffs/Applicants, demanded rent from them, filed suit for recovery of land or asserted their rights in any other meaningful manner, and therefore the Plaintiffs/ Applicants have been in *open, exclusive, continuous and uninterrupted occupation* for more than 12 years. 13. On the third issue, the Plaintiffs/ Applicants relied on various decided cases being ***Mbira vs Gachuhi (2002) 1 EALR 137,*** ascited in the case of ***Cecilia Muthoni Kithinji vs Safiya Binti Swaleh & 8 others 2018 KEELC 4002(KLR)*** where the court held; **‘‘ *non-permissive or non-consensual, open, notorious, exclusive and extensive adverse use for prescribed statutory’’*** 14. Similarly the Plaintiffs/ Applicants relied on the case of ***Jandu vs Kirpal & Another ( 1975) EA 225***, where the court held; ***‘’…. to prove title by adverse possession, it is not sufficient to show that some acts of adverse possession must be adequate in continuity in publicity and in extent to show that it is adverse to the owner. it must be actual, visible, exclusive, open and notorious’’*** 1. Further, the Plaintiffs/ Applicants relied on the case of ***Mtana Lewa vs Kahindi Ngala Mwangandi (2005) eklr,*** where the Court of Appeal stated as follows; ‘‘***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 in assertion of his title for certain period, in Kenya 12 years’’*** 1. It was their further submissions that for more than ***12 years,*** the Respondents have never taken any legal steps to recover possession, and therefore, their titles have been extinguished by operation of law under ***Sections 7 and 17***, of the ***Limitation of Actions Act***. 2. In conclusion, the Plaintiffs/ Applicants submitted that through their evidence and exhibits, they have demonstrated that the suit properties are registered in the names of the Respondents herein, and they have been in ***open, continuous*** and ***uninterrupted occupation*** for over ***27 years***, and that occupation has been ***non-consensual*** and ***adverse;*** and the Respondents have been ***dispossessed*** and / or been discontinued ***possession*** for a period exceeding 12years. The Plaintiffs/Applicants urged the court to allow the ***Originating Summons*** as filed, with costs. 3. The court has considered the pleadings as filed, the available evidence as adduced by the Plaintiffs/Applicants, exhibits produced, the written submissions, cited authorities and the relevant provisions of law and finds the single-issue for determination is whether the Plaintiffs/Applicants have proved their case on the required standard of balance of probabilities. 4. It is not in doubt that the suit herein is not opposed, since the Respondents did not ***enter appearance*** nor file their ***defences***. However, it is trite that ‘‘***he who alleges must proof’’***, and it is not automatic that undefended suit will carry the day. Sufficient evidence must be availed to prove the case, because as always, the burden of proof is upon the person alleging as required by sections 107 and 109 of the Evidence Act. 5. Section ***107(1)(2***) of the ***Evidence Act***, provides as follows: 6. ***Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** 7. ***When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”*** 8. In the case of ***Gichinga Kibutha…Vs…Caroline Nduku (2018) eKLR,*** the Court held that:- **“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’** 1. The fact that the evidence is not challenged does not mean that the Court will not interrogate the evidence of the Plaintiffs/Applicants herein. The Court has an obligation to interrogate the Plaintiffs’/ Applicants evidence and determine whether the same is merited to enable the Court come up with a logical conclusion as exparte evidence is not automatic prove of a case.*The Plaintiff has to discharge the burden of proof.* 2. In the case of***Kenya Power & Lighting Company Limited…Vs…Nathan Karanja Gachoka & Another [2016] eklr,*** *the Court stated: -* **“I am of the opinion that uncontroverted evidence brings out the fault and negligence of a defendant, and a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’’** 1. Having found and held that the Plaintiffs/Applicants herein had a duty to call evidence and prove their claim, have they been able to discharge that duty? 1. The claim herein is on adverse possession. From the various determinations emerging from our courts, it is evident that ***Adverse possession*** is governed by the ***Limitation of Actions Act (Cap 22 LOK),*** and for a claimant to successfully claim land under this Act, the occupier/ claimant must prove ***open, continuous, and uninterrupted possession*** for at least ***12 years*** without the owner's permission or consent. 2. The Plaintiffs/Applicants have claimed that the suit properties which were originally ***Cis Mara/ Ololunga /122***, had been occupied by their great grandparents and grandparents even before land adjudication, but it was later allocated to the respondents herein. 3. It was their claim that a group of about 24 families formed ***Kilanda Village Group***, sued the Respondents in a Nakuru High Court being case ***Nakuru HCCC No. 280*** of ***1982,*** and Judgement was entered in their favour on ***6th May*** ***1996.*** However, the Respondents filed an appeal before the Court of Appeal being***Civil Appeal No.140 of 1996***, and the High Court’s Judgement was ***overturned*** / ***set aside*** and the land reverted to the Respondents. 4. The Plaintiffs/Applicants claimed that even after the Court of Appeal’s Judgment of ***17th October 1997***, the Respondents have never asserted their right, have never demanded for payment of rent, filed an eviction claim or tried to enforce the judgement of the Court of Appeal. Consequently, it was their assertion that they have been in open and continuous occupation of the suit land, and thus they are entitled to be registered as the owners through adverse possession or operation of law. 5. The law on adverse possession is provided for under the ***Limitation of Actions Act***. Section 7 of the Act, provides as follows: “***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.”*** 1. Further Section 13 of the same Act it provides: 2. ***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 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.*** 3. ***Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and*** afresh right of ***action does not accrue unless and until some person again takes adverse possession of the land.*** 4. ***For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3), the land in*** ***reversion is taken to be adverse possession of the land.”*** 5. Section 17 of the Act states as follows: ***“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”*** 1. Further, Section ***38(1***) and ***(2***) state as follows: 2. ***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.*** 3. ***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. The above are the provisions of law that give effects to the fact that by operation of law, the same can extinguish the title of the proprietor of land in favour of a party who has been in possession thereof for a minimum period of 12 years. 5. Various determinations have been issued by the courts on the issue of ***adverse possession*** and the principles that should guide the court, and what claimant must prove if he is to be successful in such a claim. The Plaintiffs/Applicants herein relied on some decided cases to support their claim. 6. As relied upon by the applicants, the Court of Appeal in ***Mtana Lewa vs Kahindi Ngala Mwangandi [2015]eklr*** stated thus: ***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 in assertion of his title for a certain period, in Kenya 12 years.”*** 1. Further the Court of Appeal in the case of ***Richard Wefwafwa Songoi vs Ben Munyifwa Songoi [2020] eKLR*** stated as follows: “***A person who claims adverse possession must inter alia show:*** 1. ***on what date he came into possession;*** 2. ***what was the nature of his possession;*** 3. ***whether the fact of his possession was known to the other party;*** 4. ***for how long this possession has continued; and*** 5. ***the possession was open and undisturbed for the requisite 12 years.”*** 6. However, the Court of Appeal in the case of ***Wilson Kazungu Katana & 101 Others vs. Salim Abdalla Bakshwein & another [2015] e KLR,*** cited with approval its decision in the case of ***Samuel Miki Waweru vs. Jane Njeri Richu, Civil Appeal No. 122 of 2001(UR),*** and stated as follows: “…***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 lease or otherwise. Further, as the High Court correctly held in Jandu vs. Kirpal [1975] EA 225 possession does not become adverse before the end of the period for which permission to occupy has been granted...”*** 1. Therefore, the applicants herein needed to prove that they are in ***possession*** and ***occupation*** of the suit property, and that their entry thereon was not with the person of the owners, and have remained in such possession openly, without any interruption. See the case of Kasuve ***-v- Mwaani Investments Ltd & Others 2004 1 KLR 184,*** whichthe Court of Appeal set out what a party claiming land by way of adverse possession must prove. It said: ‘***’And 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***.” 1. Such possession must be ***without force, stealth*** and the ***permission of the owner*** *(nec vi, nec clam, nec precario*) – see the following cases; ***Kimani Ruchine -v- Swift Rutherford Co. Ltd 1980 KLR 10****.* It must also be ***open, continuous, peaceful, notorious*** and with the ***knowledge*** of the owner *–* ***Robert Shume & Others -v- Samson Kazungu Kalama 2015 eKLR***. 2. There is no doubt that the Respondents are the registered owners of the suit properties from the certificate of official search attached to the Originating Summons and produced as exhibits. The Plaintiffs/Applicants testified that they have been in ***continuous occupation*** of the suit land from time in memorial, and further even after the Judgment of the Court of Appeal in favour of the Respondents of ***17th October 1997.*** 3. The Respondents did not turn up in court to dispute these allegations. A claim of adverse possession is proved through evidence. The Plaintiffs/Applicants produced photographic evidence of homesteads, some permanent and others semi-permanent, evidence of graves, which they claimed were for their departed related, and who buried on the suit property without any objection from the respondents or ant quarters. 4. These assertions and testimonies of the Plaintiffs/Applicants were not controverted by the Respondents herein. It is evident that there is a court judgment in favour of the Respondents issued on ***17th October 1997***. The Plaintiffs/Applicants alleged and testified that even after that judgment of 1997, they have continued to occupy the suit property without any objection from the respondents, and thus the Respondents have failed to assert their rights for a period of more than 12 years. 5. Further, the Plaintiffs/Applicants claimed that their ***occupation*** and ***possession*** has been ***open, exclusive and without interruption***. As noted earlier, the Respondents did not enter appearance nor defend the suit, and thus the Plaintiff’s/Applicants’ allegations were not controverted and this court finds no reasons to doubt it. What is clear is that the Plaintiffs/Applicants have been in possession of the suit properties, which are owned by the Respondents without their permission or consent, and with their knowledge, since the occupation is open, and without interruption; the Plaintiffs have built homesteads and other structures on the suit land, and there is evidence of cultivation of crops thereon. Therefore, the question in court’s mind is whether that ***occupation and possession has been open, peaceful, continuous, uninterrupted and with the knowledge*** of the Respondents herein. From the available evidence, there is no doubt that such occupation has been *open and peaceful* for a period of more than 12 years. 6. The Plaintiffs/Applicants claimed that since **1997**, the Respondents have never asserted their right over the suit properties, through any means of such assertion. It is evident that time ceases to run from the time the owner of the land asserts his right, and as testified by the Plaintiffs, the Respondents herein did not assert their rights, and so time did not cease running. Time has been running since ***17th October*** ***1997,*** when the Court of Appeal entered a Judgment in favour of the Respondents, and from then to the time of filing this suit, it was about 27 years. 7. In the case of ***Githu -v- Ndeete 1984 KLR 776***, the court held that: “***Time ceases to run under the Limitation of Actions Act, either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes and effective entry into land.”*** 1. If the Respondents have never asserted their rights since 1997, after a judgment was entered in their favour, and the Plaintiffs have been in such ***occupation and possession*** of the suit properties to now, then the Plaintiffs/Applicants have dispossessed the ***Respondents***, with intention of permanently owning the suit properties, which occupation has discontinued the Respondents possession for a period of over ***12years.*** The Plaintiffs/Applicants have met the threshold for a successful claim under the doctrine of adverse possession as was held in the case of ***Sisto Wambugu vs Kamau Njuguna (supra).*** 2. For the above reasons, this court finds and holds that the Plaintiffs/Applicants have proved their claim on the required standard of balance pf probabilities, and consequently, Judgement is entered for the Plaintiffs/Applicants against the Respondents herein jointly and severally as prayed in the Originating Summons dated ***3rd April 2025***, in terms of prayers ***Nos a,b,c,e*** no orders as to costs since the respondents did not file enter ant appearance or defend the suit. ***It is so ordered.*** **Dated, signed and delivered virtually this 21st May 2026.** **L. Gacheru** ***Judge*** ***Delivered online in the presence of*** ***Elijah Meyoki… court assistant.*** ***Mr Owour for ALL the Plaintiffs/Applicants*** ***N/A for the Respondents*** ***21/05/2026.*** **L. Gacheru** **Judge**