https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3735

Njiru v Kanga & another (Enviromental and Land Originating Summons E001 of 2024) [2026] KEELC 3735 (KLR) (8 June 2026) (Judgment) Neutral citation: [2026] KEELC 3735 (KLR) Republic of Kenya In the Environment and Land Court at Chuka Enviromental and Land Originating Summons E001 of 2024 BM Eboso, J June 8, 2026 Between Daniel Mutwiri Njiru Plaintiff and Sallyvan Njiru Kanga 1st Defendant Janifasia Kare Mutegi 2nd Defendant Judgment 1.The plaintiff is a son to the 1st defendant. He took out an originating summons under Sections 17, 18, 37 and 38 of the Limitation of Actions Act, seeking orders of adverse possession against the two defendants in relation to a ¼ acre portion of land parcel number Karingani/Muiru/2047. One of the key issues that fall for determination in the suit is whether the plaintiff has acquired title to the said ¼ portion of the land under the doctrine of adverse possession. Before I analyse and dispose all the issues that fall for determination, I will outline the parties’ respective cases and submissions in the suit. Plaintiff’s Case 2.The plaintiff initiated the suit through an originating summons dated 5/1/2024. Through the Originating Summons, he sought the following nine (9) verbatim orders:-1.That by virtue of the plaintiff’s occupation, user, possession and peaceful enjoyment of a portion of that parcel of land known as Karingani/Muiru/2047 with accumulative of over 28 years, the plaintiff’s interests overrides the 1st defendant’s interest in the suit land situate within Tharaka Nithi County.2.That the plaintiff is the bona fide owner of a portion of land comprised in land parcel known as Karingani/Muiru/2047 by virtue of adverse possession and prescriptive rights.3.That the new title numbers issued by the Land Registrar in charge of Chuka Land Registry arising out of the subdivision of the suit land Karingani/Muiru/2047 be revoked and/or cancelled and the register rectified by removing or cancelling or deleting the new titles numbers.4.That the 1st defendant illegally and unprocedurally conferred an invalid title to the 2nd defendant.5.That the 1st defendant Sallyann Njiru Kanga be ordered to execute all documents of transfer in respect of the said portion of land Karingani/Muiru/2047 in favour of the plaintiff failure to which authorize Court Officer of the Honourable court empowered to execute the same in place of the defendant.6.That the plaintiff be declared the absolute owner of a portion on piece of land known as Karingani/Muiru/2047 which parcel he has cultivated and has been in actual possession of peacefully, openly and uninterrupted for a period of over 28 years since 1995.7.That the said plaintiff be registered as the sole proprietor of a portion of the parcel of land namely land title No. Karingani/Muiru/2047 in place of the above named defendants in whose favour the land is currently registered.8.That the court do issue such further orders of relief it deems fit an just expedient.9.Costs this application be provided for. 3.The plaintiff’s case is contained in the originating summons dated 5/1/2024 together with his undated supporting affidavit; his supplementary affidavit dated 17/6/2025; his written statement dated 18/6/2025; the undated affidavit of Susan Kathure Mutegi; the undated affidavit of Robinson Mwenda Ntarara; the oral testimonies of the trio; and his written submissions dated 14/1/2026. In summary, the plaintiff’s case is that he is a son to the 1st defendant. He is aged about 45 years. The suit land, Karingani/Muiru/2047, was previously registered in the name of the 1st defendant. He has been living on a ¼ acre portion of the land since 1995. He has acquired title to the ¼ acre portion of the land through adverse possession. 4.During trial, the plaintiff testified as PW1. He also led evidence by his wife, Susan Kathure Mutegi, who testified as PW2. The plaintiff further led evidence by his paternal cousin, Robinson Mwenda Ntarara, who testified as PW3. The plaintiff adopted the contents of his written statement; his undated supporting affidavit and his supplementary affidavit dated 17/6/2025 as part of his sworn evidence-in-chief. He produced a certified extract of the land register relating to parcel number Karingani/Muiru/2047. The extract indicated that the title was closed on 28/11/2023 on subdivision of the land. He further produced an official search dated 19/11/2021. He also produced certified copies of the registers relating to the five subdivisions that were surveyed out of title number Karingani/Muiru/2047. 5.The evidence of the plaintiff was that he moved onto the ¼ acre portion of parcel number Karingani/Muiru/2047 in 1995. At that time, the land was in a completely “unkempt state”. He planted trees and built a house on the land. He has been rearing cattle on the land. He has carried out extensive constructions to make the land habitable. Although the 1st defendant was aware that he was living on the land, he treated the matter casually and made no efforts to evict him. He resided on the land peacefully until 2021 when the 2nd defendant informed him that he was trespassing on her land and he was required to move out. 6.He added that when he questioned the 1st defendant about the demand of the 2nd defendant, the 1st defendant told him to move out because the land belonged to him. He added that the intention of the 1st defendant in uttering those words was to sell the suit land to the 2nd defendant. Consequently, he placed a caution on the suit land. PW1 added that his wife moved onto the suit land in 2021 after they formalized their marriage. 7.In cross-examination, he stated that it was his father [the 1st defendant] who showed him the ¼ acre portion that he occupied [the subject matter of this originating summons]. He added that it was his father who, similarly, showed him the alternative parcel that he wants him to relocate to. He stated that he did not want to relocate to the alternative parcel because it was for from the neighbourhood. He admitted that the 1st defendant resided on the suit land while the 2nd defendant resided on parcel number Karingani/Muiru/2046 which she purchased from the 1st defendant. 8.The plaintiff testified that he was born in 1980, adding that he entered the suit land in 1995 when he was 15 years. He stated that he had three brothers and three sisters and all the six siblings resided on the suit land. He identified the land on which his father wanted him to settle on as Karingani/Muiru/1687, located in Ntiringi Area. 9.Susan Kathure Mutegi testified as PW2. She adopted her witness statement dated 18/6/2025 as part of her sworn evidence-in-chief. She stated that she was the wife of the plaintiff. PW2 further stated that they had lived on the land from the time they got married in 2012. It was her evidence that she grew bananas, nappier grass and exotic trees on the ¼ acre portion. 10.In cross-examination, PW2 reiterated that she entered the land in 2012 when she got married to the plaintiff. She further stated that she found the plaintiff living on the portion where they currently reside. PW2 added that she was aware that her father-in-law wanted them to settle on the land at Ntiringi, but they did not want to move to the land because it had many stones and gets wet whenever it rains. 11.Robinson Mwenda Ntarara testified as PW3. He adopted his witness statement dated 18/6/2025 as part of his sworn evidence-in-chief. PW3 stated that he was a first cousin to the plaintiff. He further stated that the plaintiff had been residing continuously on parcel number Karingani/Muiru/2047 since 1995 and had built a grass thatched house on the said land. It was his testimony that over the years, the plaintiff had developed the suit land significantly and had established his home, planted various crops, constructed permanent structures and grown crops on the land. 12.In cross-examination, he stated that he was not present when the plaintiff was given the portion where he resides. PW3 stated further that the plaintiff built a grass thatched cottage on the suit land when he was circumcised and was only asking for a portion of the suit land. It was his evidence that he was aware that the plaintiff’s father had shown him an alternative parcel where he was to settle, adding that the alternative parcel was far from the neighbourhood school and dispensary. 1st Defendant’s Case and Evidence 13.The 1st defendant filed two replying affidavits dated 1/2/2024 and 5/2/2025, contents of which he adopted as part of his sworn evidence-in-chief. The case of the 1st defendant is that he is the father of the plaintiff and was the registered owner of title number Karingani/Muiru/2047 which has since been subdivided. He has his matrimonial home on the land. The plaintiff is on his land with his permission and is not an adverse possessor. The plaintiff is hostile to him and his mother. 14.The 1st defendant adds that he sold a portion of the land to the 2nd defendant. He states that he allowed the plaintiff to cultivate the suit land after he married in 2016 on the understanding that he was to allocate him part of parcel number Karingani/Muiru/1687 at Ntiringi. The 1st defendant further states that when the plaintiff was told to relocate to parcel number Karingani/Muiru/1687, he became violent and chased him while armed with a knife. It is his case that he is the legitimate owner of the suit land and his son cannot claim any overriding interest over it. 15.During trial, the 1st defendant [Sallyvan Njiru Kanga] testified as DW1. He adopted his replying affidavits dated 1/2/2024 and 5/2/2025, respectively, as part of his evidence-in-chief. He produced the following documents: (i) a copy of search certificate for Karingani/Muiru/2047: (ii) A copy of the title deed relating to Karingani/Muiru/2047; (iii) a copy of the title deed relating to Karingani/Muiru/2046 and a copy of the title deed relating to Karingani/Muiru/1687. 16.DW1 testified that he gave to the plaintiff land at Ntiringi, adding that his family resided on a small piece of land and it was for that reason that he gave the plaintiff part of the land at Ntiringi. DW1 further stated that the plaintiff deserted the homestead when he was 13 years old and came back in 2016. 17.DW1 stated that when he gave the plaintiff land at Ntiringi, the plaintiff reported him to the Chief, but the Chief ordered him to abide by the family decision. He further stated that the plaintiff went to the D.O and denied having been given land at Ntiringi. DW1 testified that the D.O directed that they meet at Ntiringi for him [the 1st defendant] to point out the land to the plaintiff, adding that the plaintiff rejected the land. DW1 urged the court to compel the plaintiff to move to Ntiringi. 18.In his testimony during cross-examination, DW1 stated that the plaintiff was violent and wanted to kill him. 2nd Defendant’s Case 19.The 2nd defendant testified as DW2. She adopted the contents of her replying affidavit dated 5/2/2025 as part of her sworn evidence-in-chief. She produced the following two documents: (i) a copy of the title deed for parcel number Karingani/Muiru/2047; and (ii) a copy of the title deed for parcel number Karingani/Muiru/2046. 20.DW2 stated that she first purchased from the 1st defendant parcel number 2046 in 1995. She added that in November 2021, she entered into a second land purchase agreement through which she purchased parcel number Karingani/Muiru/6113, a subdivision of number Karingani/Muiru/2047. It was her evidence that parcel number 6113 was at the time of her testimony registered in her name and measured 0.040 hectares. 21.In her evidence during cross-examination, DW2 testified that when she purchased parcel number 2046 and occupied it in 1995, the 1st defendant was residing on parcel number 2047 with his wife and children. She further testified that she fenced the land she had purchased from the 1st defendant in 2021. She denied demolishing any zero-grazing unit on the land. Plaintiff’s Submissions. 22.The plaintiff filed written submissions dated 14/1/2026 in person. He identified the following as the four issues that fell for determination in the suit: (i) Whether the plaintiff had been in open, exclusive, continuous and uninterrupted possession of a portion of land parcel number Karingani/Muiru/2047 for a period exceeding twelve (12) years; (ii) Whether the plaintiff’s possession was adverse to the title of the 1st defendant; (iii) Whether the subsequent sale, removal of caution and subdivision of the suit land defeated the plaintiff’s accrued rights; and (iv) Whether the plaintiff was entitled to be registered as proprietor of the portion he occupied. 23.Citing Sections 7, 13, 17 and 38 of the Limitation of Actions Act, the plaintiff argued that he entered the suit land in 1995 when he was 15 years old and had been in exclusive possession of “15 points” of the suit land. The plaintiff further submitted that he had constructed his matrimonial home, planted trees and cultivated the land, adding that he reared livestock on the suit land. The plaintiff further submitted that from 1995 to 2023, his possession had been peaceful, uninterrupted and undisturbed. 24.The plaintiff argued that the fact that the 1st defendant was his father did not defeat his claim, adding that what mattered was the nature of his possession and not the kinship. He relied on the case of Public Trustee v Wanduru (1984)KLR314. 25.On the effect of sale, removal of caution and subdivision, the plaintiff submitted that the 1st defendant sold the suit land to the 2nd defendant after his rights under adverse possession had accrued. He added that the removal of the caution on 20/11/2023 and the subsequent subdivision on 28/11/2023 were calculated to defeat his rights that had accrued. He contended that his title under adverse possession crystalized in 2007, hence the 1st defendant had no title to sell to the 2nd defendant. Defendants’ Submissions 26.The 1st and 2nd defendants filed written submissions dated 24/2/2026 through M/s P. M Mutani & Co Advocates. Counsel for the defendants identified the following as the issues that fell for determination in the suit: (i) Whether the plaintiff could mount a claim of adverse possession against his father; (ii) Whether the plaintiff clearly identified the land he sought to acquire adversely; and (iii) Whether there was a cause of action against the 2nd defendant. 27.On whether the plaintiff could mount a claim of adverse possession against his father, counsel for the respondent submitted that the plaintiff pleaded that in 1995, while a minor living on his father’s land, he became an adverse possessor of a portion of his father’s land measuring approximately “15 points”. Counsel added that the plaintiff had no capacity to be an adverse possessor at the age of15. Counsel relied on the case of Henry Mwangi Kihara v Rachel Nyambura Kimani & 4 Others (2005) KEHC 2672 (KLR). Counsel submitted that there could not be adverse possession between close relatives. He relied on the case of Kihamba v Mbaisi (Civil Appeal No.27 of 2013 (2015)KECA 853 (KLR). Counsel urged the court to dismiss the suit. 28.Counsel added that the plaintiff had failed to demonstrate a cause of action against the 2nd defendant. Analysis and Determination 29.The court has considered the pleadings, the evidence and the submissions that were tendered in the suit. The court has also considered the legal frameworks and the jurisprudence relevant to the key issues in the suit. The following are the key issues that fall for determination in the suit: (i) Whether title number Karingani/Muiru/2047 is available for orders of adverse possession under Sections 37 and 38 of the Limitation of Actions Act; (ii) Whether the plaintiff has acquired a crystalized title to a ¼ acre portion of parcel number Karingani/Muiru/2047 under the doctrine of adverse possession; (iii) Whether the plaintiff has established a cause of action against the 2nd defendant; (iv) Whether the plaintiff is entitled to the reliefs sought in the originating summons; and (v) What orders should be made with regard to costs of this suit? 30.Is title number Karingani/Muiru/2047 available for orders of adverse possession under Sections 37 and 38 of the Limitation of Actions Act? The above two sections of the Limitation of Actions Act provide the framework within which a party claiming to have acquired title to land through adverse possession may move the court for vesting orders. Secondly, the sections provide the jurisdictional framework within which the court would consider and grant orders of adverse possession. 31.The essence of an order of adverse possession under Section 38 of the Limitation of Actions Act is to cancel the registration of the subsisting registered proprietor and replace it with that of the adverse possessor. Where the adverse possessors title crystalizes against only a portion or portions of the title, the vesting order under Section 38 decrees subdivision of the subsisting title to create two or more titles in the name(s) of the adverse possessor(s). The portion that is unaffected by the adverse possession claim is retained in the name of the original owner under a new survey/reference/parcel number and new acreage. 32.This originating summons was taken out on 15/1/2024. At that time, the plaintiff swore an undated affidavit through which he exhibited a certified copy of the extract of the land register relating to title number Karingani/Muiru/2047. The exhibited extract clearly bore entry number 5 indicating that title number Karingani/Muiru/2047 had been closed on 28/11/2023 after subdivision of the title and new titles had been created on 28/11/2023. The new titles were Karingani/Muiru/6109; 6110; 6111, 6112 and 6113. It does therefore emerge that the plaintiff was aware that title number Karingani/Muiru/2047 had been closed and was not available for adverse possession orders under Sections 37 and 38 of the Limitation of Actions Act. Title number Karingani/Muiru/2047 having been closed on 28/11/2023, it is not available for the purpose of adverse possession orders. Indeed, the said title was not available at the time the plaintiff initiated this suit. That is the finding of the court on the first issue. 33.Has the plaintiff demonstrated acquisition of a crystalized title to ¼ acre portion of the suit land under the doctrine of adverse possession? Parcel number Karingani/Muiru/2047 was registered on 30/6/1998 as a subdivision out of Karingani/Muiru/1361. It measured 0.457 hectares [1.128 acres]. It was registered in the name of the 1st defendant. As observed earlier, the title was closed on 28/11/2023 on subdivision. 34.There is common ground that the plaintiff is a son to the 1st defendant. During cross-examination, the plaintiff gave the following verbatim testimony:“It is my father who showed me the location/portion where I presently reside. It is him who is similarly showing me where to relocate. I do not want to move to the new location because it is far from school facility. It is wet and rocky. My father did not show me the new location.” 35.It is clear from the above verbatim testimony of the plaintiff and from the evidence of the 1st defendant that the plaintiff has been on the suit land with the consent of his father [the 1st defendant]. He did not enter the suit land as an adverse possessor in 1995. He has been on the suit land as a son of the 1st defendant and not as an adverse possessor. 36.The plaintiff further stated in his testimony that all his six adult siblings resided on the suit land. He admitted that the 1st defendant too resided on the suit land. Through this originating summons, the plaintiff wants the court to believe that he resided on his father’s land as an adverse possessor. He has, however, not told the court whether his six siblings also resided on their father’s land as adverse possessors. 37.Claims of adverse possession by close African relatives in African families are not new in Kenya’s Courts. In Samuel Kihamba v Mary Mbaisi (2015) eKLR, the Court of Appeal outlined the law in relation to adverse possession claims by close relatives as follows:“Could the doctrine of adverse possession apply against the parties to the suit before the Learned Judge who were related by being mother and step-son? We think not. We…must state that it would create havoc for families and the society of Kenya generally if the principle of adverse possession applied within families against close relatives.” 38.Not too long ago, the Court of Appeal reiterated the above principle in Nkoroi v Nyaga & 2 others (2023) KECA 1601 (KLR) as follows:“In a claim for adverse possession involving close relatives such as this one, the court is mindful and takes judicial notice of the fact that in the African culture, it is not uncommon for people to accommodate their relatives on their land for a long period of time. The court has to determine if the registered proprietor of the land gave consent to their relative to take possession of the suit property, and if so, whether such consent was withdrawn, and if withdrawn, when. The party claiming adverse possession in such an instance bears the burden of proof to establish that such consent was withdrawn, and that they continued to inhabit the suit property beyond the requisite statutory period that entitles them to ownership by adverse possession. 39.Based on the above evidence and jurisprudence, the finding of the court is that the plaintiff was never an adverse possessor of land parcel number Karingani/Muiru/2047. He lived on the said land as a son of the 1st defendant. He lived on the land with the consent of the 1st defendant who is his father. 40.Did the plaintiff establish a cause of action against the 2nd defendant? The plaintiff sought adverse possession orders to a closed title, Karingani/Muiru/2047. There was no evidence tendered to demonstrate that the 2nd defendant was the registered proprietor of the said closed title. 41.Secondly, when asked in cross-examination to demonstrate the reason why he sued the 2nd defendant, the plaintiff stated as follows:-“I sued the 2nd defendant because he damaged my property”. 42.In this originating summons, the court is not seized of a claim relating to damage to property. The originating summons is a claim for orders of adverse possession. Clearly, in this originating summons, the plaintiff has been unable to demonstrate a cause of action against the 2nd defendant. That is the finding of this court on the third issue. 43.In light of the above findings, it follows that the plaintiff has been unable to prove his claim for orders of adverse possession against the two defendants. Consequently, none of the reliefs sought in the originating summons under consideration is available to him. 44.On costs, the general principle in Section 27 of the Civil Procedure Act is that, costs follow the event. No proper grounds have been demonstrated to warrant a departure from the general principle. Consequently, the plaintiff will bear costs of the suit. Disposal Orders 45.Having evaluated the pleadings, the evidence and the submissions presented in this suit, the court comes to the finding that the plaintiff has failed to prove his claim on a balance of probabilities. Consequently, the suit is hereby dismissed for lack of merit. The plaintiff shall bear costs of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JUNE, 2026B M EBOSO [MR]ELC JUDGE