https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4431

Kamenju v Irungu (Suing in the capacity as the legal representative of the Estate of Humphrey Irungu Mwangi) (Enviromental and Land Originating Summons E009 of 2025) [2026] KEELC 4431 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEELC 4431 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Enviromental and Land Originating Summons E009 of 2025 MN Gicheru, J July 15, 2026 Between Dickson Kiburi Kamenju Applicant and Loice Wanjiru Irungu (Suing in the capacity as the legal representative of the Estate of Humphrey Irungu Mwangi) Respondent Judgment 1.In the Originating Summons dated 27-3-2025, the Applicant seeks the following orders.1.That the Applicant has by way of adverse possession acquired land title No. Loc.20/Kambirwa/2272 and that it be registered in the name of Dickson Kiburi Kamenju.2.That the Land Registrar Murang’a be ordered to transfer the said land comprised of land title No. Loc.20/Kambirwa/2272 to the Applicant.3.That the Deputy Registrar of this court do sign application for survey, land control board, transfer documents and any other applications and documents necessary to facilitate the transfer of the suit land to the Applicant.4.That the Respondent do pay the costs of this suit. 2.The Applicant’s case is as follows. Firstly, he bought the suit land from the Respondent and her late husband Humphrey Irungu Mwangi on 6-1-2007.The sale agreement was reduced into writing. The purchase price was Kshs. 450,000/=. A deposit of Kshs. 150,000/= was paid to the Respondent’s husband vide cheque No. 006353, Equity Bank. Again the Applicant paid a further Kshs. 200,000/= vide money transfer to the Respondent’s husband’s account on 12-3-2007 and a further payment of Kshs. 70,000/= through money transfer and he acknowledged receipt. Secondly the Applicant took possession of the suit land immediately and he has developed it substantially. Thirdly, the late Humphrey attended the land control board and obtained the necessary consent to transfer the land to the Applicant. Unfortunately, Humphrey died before he could transfer the land to the Applicant. Fourthly, the Respondent filed a Succession cause at Murang’a Law Courts and became registered as the owner of the suit land. The Applicant filed a caution against the suit land on 6-7-2023. Fifthly, he has been in continuous and uninterrupted possession of the suit land to the exclusion of all others for a period of more than 12 years. The Respondent’s title has therefore been extinguished by way of adverse possession. The Applicant is ready and willing to pay the balance of Kshs 30,000/= in fulfillment of the sale agreement. Finally, the Respondent has refused to transfer the suit land to the Applicant despite issuing her with a demand notice. 3.In support of his case, the Applicant filed the following evidence.a.Supporting affidavit dated 27-3-2024.b.Witness statement dated 27-3-2025.c.Copy of certificate of official search dated 27-3-2025.d.Copy of sale agreement dated 6-1-2007.e.Bank statement for Account No. 022010008227 Equity Bank.f.Copy of acknowledgment dated 25-10-2007.g.Copy of incomplete record of proceeding before the Land Registrar Murang’a.h.Six(6) photographs showing crops growing on a parcel of land. 4.The summons is opposed by the Respondent who has sworn a replying affidavit dated 12-1-2026 in which she states as follows. Firstly, the suit is bad in law for referring to the Respondent as a legal representative of her deceased husband yet she is the registered owner of the suit land. Two, the Respondent admits receiving only Kshs. 150,000/= which was given to her husband and 6-1-2007. The Applicant did not pay the full purchase price. Three, the Applicant never got vacant possession of the suit land because such possession was to come after the picking of boundaries which did not take place. Four, the Respondent is aware of Kshs. 220,000/= that the Applicant paid in furtherance of the sale of the suit land. Finally, the Applicant’s suit does not meet the threshold for the grant of the orders sought. For the above and other reasons, she sought for the dismissal of the originating summons. 5.In support of her defence, the Respondent filed the following evidence.a.Replying affidavit dated 12-1-2026.b.Witness statements by the Respondent, Alexander Manyeki and Benard Muturi Kinyanjui.c.Copy of sale agreement dated 6-1-2007.d.Copy of proceedings before the Land Registrar Murang’a dated 24-10-2023.e.Copy of statutory declaration.f.Copy of certificate of confirmation of grant in Murang’a CM’s Succession Cause No.E501 of 2022.g.Copy of certificate of official search dated 6-3-2025. 6.At the trial on 20-5-2026, a total of four (4) witnesses testified. They included the Applicant and the Respondent and the Respondent’s two witnesses who were Benard Muturi Kinyanjui and Alexander Manyeki. The Applicant’s evidence is that he paid a total of Kshs 420,000/= and is in occupation of the suit land. The Respondent’s evidence is that only Kshs. 150,000/= was paid to her husband and that the only people who have been cultivating on the land are James Kimani Gichuki and Eliud Githua Mwangi but the Plaintiff has never been to the land. 7.Counsel for the parties filed written submissions dated 2-6-2026 and 3-6-2026 respectively. The issues identified by the Respondent’s counsel are as follows.a.Whether the suit against the Respondent as a legal representative of the estate of the deceased is competent.b.Whether the Applicant has proved adverse possession.c.Whether the Applicant is entitled to the orders sought.The Applicant’s counsel did not identify any issues in his written submissions dated 2-6-2026. Counsel for the parties did not adhere to the directions dated 20-5-2026 regarding the order of filing of written submissions. Had they complied with those directions which were issued in compliance with Order 18 rule 2(2) Civil Procedure Rules, the Applicant’s counsel would have responded to the issues raised by the Respondent’s counsel. 8.I have carefully considered all the evidence adduced in this case by both sides including the witness statements, the affidavits, the documents and the testimony at the trial. I have also considered the written submissions by the learned counsel for the parties, the issues identified and the law cited.Under Order 15 of the Civil Procedure Rules, I will add the following issues for determination.i.Whether the Applicant is in occupation of the suit land or not.ii.Whether the amount received by the deceased is Kshs. 150,000/=, Kshs. 220,000/= or Kshs.420,000/=.I find as follows on the above issues. 9.Regarding the Applicant’s occupation of the suit land, I find that he had not proved that he ever occupied the suit land. His evidence on occupation is contradicted by three witnesses who were very convincing that the Applicant does not occupy the land. He could not avail even a single witness to corroborate his evidence of occupation yet it is him who has the burden of proof. He did not discharge this burden of proof in regard to the occupation of the suit land. 10.It is my finding that the Applicant paid the Respondents husband is a total of Kshs. 420,000/=. The Applicant has been very consistent in this assertion. His evidence on this aspect has not been shaken. It has also been corroborated by the bank statement produced as evidence. The statement shows that on 12-3-2007, a total of Kshs. 200,000/= was transferred from the Applicant’s Equity Bank Account No. 022010008227 to Humphrey Irungu. Though the Respondent denies this payment, she is not Humphrey Irungu but his wife. She cannot be sure when she says that he did not receive the amount. The Respondent has not been consistent on the amount of money received by her husband. In the proceedings before the Land Registrar on 24-10-2023, the record reads as follows at page 1, last paragraph.“She confirmed she was present at the time the agreement was executed and further that the cautioner paid a sum of Kshs. 150,000/= through a banker’s cheque payable to her husband. She also confirmed that the cautioner sent his brother to deliver a further sum of Kshs. 70,000/= which they received. “The total amount received therefore is Kshs. 200,000/= plus Kshs. 150,000/=, plus Kshs. 70,000/= which equals Kshs. 420,000/=. This amount is supported by both the bank statement and the Respondent’s own admission. This admission is also to be found at paragraphs 6 and 8 of her replying affidavit dated 6-1-2026. At paragraph 6, she admits receipt of Kshs. 150,000/= and at paragraph 8, she admits that the total received is Kshs.220,000/=. When she testified on 20-5-2026, she only admitted that the amount received is Kshs. 150,000/=. This wavering and lack of consistency shows that the Respondent is not being truthful about the amount received. 11.It is trite law that change of ownership does not, by itself stop time from running for purposes of adverse possession. This is well settled principle in Kenyan law. The rationale is that once time has begun to run against the registered owner under the Limitation of Actions Act, a subsequent transfer does not interrupt or reset the period of limitation. The newly registered owner takes the land subject to the rights that may already have accrued to the adverse possessor.In Githu Vs Ndeete [1984] KLR 776 the Court of Appeal held as follows.“The mere change of ownership of land occupied by another person under adverse possession does not interrupt that person’s adverse possession.”It is my finding that the Applicant was right to sue the estate of the deceased because it is the deceased that he had privity of contract with and time, if it ran at all, would start running at the time when the deceased was alive. It is immaterial who the Applicant sued because the estate of the deceased and by extension the Respondent owed the Applicant money paid to her husband under the sale agreement. 12.The Applicant had not proved his claim for adverse possession because he had not been able to prove that he has occupied the suit land for twelve years for the reasons already given in paragraph [9] of this judgment. 13.Since the Applicant has not been able to prove continuous possession of the suit land for 12 year, he is not entitled to his orders sought because such continuous possession is one of the prerequisites to a favourable finding of acquisition of title by adverse possession. 14.For the above stated reasons, I find that the Applicant only qualifies for the remedy available under Section 7 of the Land Control Act. It provides as follows.“If any money or other valuable consideration has been paid in the course of a controlled transaction that becomes void under this Act, that money or consideration shall be recoverable as a debt by the person who paid it from the person to whom it was paid, but without prejudice to Section 22.” 15.In conclusion, I order as follows.a.The Applicant’s claim in the originating summons dated 27-3-2025 is dismissed.b.The Respondent to refund to the Applicant the following sumsi.Kshs 200,000/= received by the deceased, Humphrey Irungu Mwangi on 12-3-2007.ii.Kshs. 150,000/= received by the same deceased on 2-4-2007.iii.Kshs. 70,000/= received by the same deceased on 25-10-2007.c.All the above stated amounts to be refunded with interest from the date of the receipt by the deceased to the date of refund.d.The refunds to be with interest at Court rates.e.Costs to the Applicant.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 15TH DAY OF JULY, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistants – JacklinePlaintiff’s Counsel – Mr. NjorogeDefendant’s counsel – Mr. Mwangi