https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4197

Ngari v Githinji & another (Environment and Land Case 74 of 2017) [2026] KEELC 4197 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEELC 4197 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case 74 of 2017 EK Makori, J July 1, 2026 Between Elishiba Wakonyu Ngari Plaintiff and Patrick Mgari Githinji 1st Defendant Purity Wairimu Githinji 2nd Defendant Judgment 1.This suit was instituted vide Plaint dated 25th of April 2017, in which the Plaintiff averred that at all material times relevant to the suit, the Plaintiff was the registered owner of the suit parcel number Iria-ini/Kiaguthu/611, measuring a total acreage of 0.81ha, having acquired the parcel in the year 1988. 2.On or around the year 2013, the defendants are accused of entering the suit property belonging to the plaintiff, claiming that the land belongs to them, and continuing to occupy portions of the plaintiff’s land without permission. 3.The plaintiff now seeks to reclaim the portions of her land that were unlawfully occupied and trespassed upon by the defendants, to enable her to develop the land. 4.The Plaintiff prays for the following orders: -a.An order of declaration by this honorable court that the plaintiff is the lawful owner of land parcel No. Iria-Ini/Kianguthu/611.b.An order that the defendants herein are unlawfully occupying and trespassing in portions of land no. Iria-Ini/Kianguthu/611.c.An order directing the defendants to vacate the plaintiff’s land parcel no. Iria-ini/Kianguthu/611 and/or, in the alternative, an order of eviction to be issued against the defendants, thereby giving vacant possession to the plaintiff.d.An order of permanent injunction restraining the defendants by themselves and/or their agents, servants from re-entering or remaining on L.R Iria-ini/Kianguthu/611 or in any way continuing to trespass on the same.e.Costs of this suit and interest thereon at court rates. 5.In response to the Plaintiff’s case, the Defendants filed a joint statement of defense and counterclaim, denying any trespass on their part on the Plaintiff’s land and asserting that they have a right of occupation guaranteed by virtue of overriding interests. 6.In their counterclaim, the Defendants herein claim that they have been in peaceful, uninterrupted, and continuous occupation of the suit land for more than 12 years and are now entitled to be registered as the owners of the said piece of land in place of the plaintiff. They also seek a permanent injunction restraining the plaintiff, her servants or agents, from taking possession of, occupying, alienating, trespassing on, interfering with, selling or disposing of, or dealing in any way with the suit property, as well as costs. The hearing of the suit. 7.The hearing of the suit commenced on February 5, 2026, when the Plaintiff, PW 1, gave her evidence. She identified the defendants as her niece and nephew and adopted her undated witness statement. In that statement, she reiterated that the defendants trespassed on her land and occupied portions of it without justification, and she seeks their eviction. 8.PW 1 stated that the defendants entered the suit land in the year 2013, but that they have not built any structures on the land and live in her house, which is a hut. She also stated that she farms on the suit land. 9.Upon cross-examination, the Plaintiff stated that the suit land initially belonged to her father and was divided among 3 people. She stated that the Defendants’ mother was her sister, that she was brought up on the suit land, later married, and that they have their own home. This sister died in 2013 and had a daughter named Alice, who died in 2005 and was buried in the suit land. The Plaintiff said that she allowed the burial there because her sister had no money to transport the body. 10.PW 1 states that the defendants were born on their father’s land, not on the suit land, and that their mother is buried on their land in Naromoru. 11.The Plaintiff closed her case, and DW 1, the 2nd Defendant named herein, gave her evidence in Court. She adopted her witness statement dated June 12, 2017, as her evidence in chief. 12.In her witness statement, she stated that he has lived on the suit land from 1995 to date, together with her mother and her two siblings, and that it is the home they have known all their lives. She further stated that the Plaintiff only threatened to evict them after their mother died in 2013, who was buried on the suit land. She stated that the Plaintiff had filed a Criminal Case in Karatina No. 135 of 2014, which was later withdrawn. She prayed that the suit be dismissed, that the suit land in question be registered in the defendants’ names, and that title be granted to the defendants. 13.DW 1 stated that they were acquitted of the criminal trespass charges after the Court visited the suit land and found that they had already settled there. She denied that her father owned any land and stated that they had built a permanent homestead on the suit property. She added that the Plaintiff does not have to give them the entire parcel of land; they can be registered for a portion of it. 14.DW 2, Teresa Wanjiru, who was the wife of one Geoffrey Wambutu Githinji (Deceased), a sibling of the defendants, also gave her evidence and adopted her witness statement dated 7th August 2019. 15.DW 2 stated that when she got married in the year 2000, the wedding took place on the suit land, and she found the defendants living there. She, however, did not have a copy of his death certificate to produce in Court. 16.DW 2 stated that she also claims the suit land, and that they have semi-permanent homes built there. The Defense case closed, and the parties were ordered by the Court to file written submissions. The Plaintiff’s written submissions. 17.Counsel for the Plaintiff submitted that the suit land is held absolutely by the Plaintiff and that the Defendants have not proven they have been in possession of the land for 12 years or more. 18.They argue that their occupation of a portion of the suit land has not become adverse and that the orders they seek are untenable, amounting to chasing the plaintiff from her land and leaving her landless, even though they have their land in Narumoru, where their mother is buried. 19.It is submitted that the plaintiff's permission for the deceased mother of the defendants, Ann Njoki, to build a timber house and to bury one of her daughters on the said land does not amount to acquiring any proprietary rights therein. The defendants failed to prove that they were brought up on the suit land, attended school in the vicinity, or built a structure thereon. They also noted that the defendant's witness’ husband, Geoffrey Wambutu Githinji, was not buried on the suit land. 20.Counsel argues that the Defendants' deceased mother was a mere licensee on the suit land. It is noted that the Plaintiff has even sought to evict the Defendants vide Karatina SPS Criminal Case No. 135 of 2014, which the Defendants have referred to on page 2 of both their statements to assert their rights. 21.The Plaintiff concluded that the defendants failed to adduce evidence showing any house they had built or how they resided on the suit land, had no independent, credible witnesses from that area to strengthen their case, and relied on the authority of M'Riria & 5 Others v Muthomi (Civil Appeal 253 of 2019) [2025] КЕСА 951 CKLR) (4 April 2025) (Judgment). The Plaintiff further concluded that she had proven her case on a balance of probabilities and prayed for the orders sought. The Defendants’ written submissions 22.Counsel for the Defendants submitted that the Defendants have demonstrated open, continuous, and uninterrupted occupation of the suit land since 1995. They further contend that the suit land constitutes family land held in trust. In the alternative, they assert that they have acquired title to the land by adverse possession. 23.It is submitted that in the present case, the Plaintiff did not have exclusive possession of the suit land to claim trespass against the Defendants. The Defendants and their families have been in occupation since 1995. The Plaintiff has failed to discharge the burden of proof under Sections 107–109 of the Evidence Act because she has not established the date of entry, the specific portion allegedly encroached upon, or produced independent evidence of trespass. She has not established a permanent homestead or carried out farming activities. 24.It is submitted that the Defendants’ occupation is lawful and that they have demonstrated long, continuous, open, and exclusive possession of the suit land since 1995. They have constructed permanent homes, cultivated the land, and buried their relatives there. Such occupation cannot be deemed unlawful, as it has been open and notorious, continuous for over two decades, and uninterrupted. 25.Submitting on trust, Counsel submitted that, in the present case, the suit land was family land. The Defendants belong to the said family, being a nephew and niece of the current registered owner, and their mother, a daughter of the deceased patriarch, ought to have been considered in the succession process but was excluded. The Defendants have also been in occupation of the land for their entire lives. Section 28(b) of the Land Registration Act, 2012, recognizes customary trust as an overriding interest to which registered land is subject. It is therefore submitted that Land Parcel No. Iriani/Kiaguthu/611 is ancestral land held by the Plaintiff in trust for the Defendants. On this point, they relied on the authorities of Isack M’Inanga Kiebia v Isaya Theuri M’Lintari & Isack Ntongai M’Lintari (2015) eKLR and Mbui Mukangu v Gerald Mutwiri Mbui (2004) eKLR. 26.The Defendants’ case is that the Plaintiff’s claim to absolute ownership is defeated by the existence of a customary trust and by the Defendants’ acquisition of title through adverse possession. Further, eviction and injunctive relief cannot be issued against long-standing occupiers whose possession is lawful and protected by law. 27.Counsel concluded that the Defendants have established long, uninterrupted occupation, a beneficial interest under a customary trust, and acquisition of title by adverse possession. They are therefore entitled to a declaration of ownership, registration as proprietors, and protection by way of a permanent injunction. Analysis and determination 28.The Plaintiff herein filed this suit, claiming that the defendants trespassed onto her land, LR. No. Iria-ini/Kiaguthu/611, measuring 0.81 ha. She produced a Certificate of Official Search dated 27th June 2014, indicating that she is the registered owner of the suit land, and she seeks an order evicting the defendants from the suit land. 29.The defendants, on the other hand, claim that they have become entitled to the suit land by virtue of adverse possession, as they have openly and continuously been on the suit land since the year 1995, which the Plaintiff denies and states that they have only been on the suit land since the year 2013.a.Has the Plaintiff established whether the Defendants trespassed on the suit land? 30.Section 3(1) of the Trespass Act defines trespass as follows:“Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.” 31.It has long been held that trespass must be proven. In the case of Michael Gaiko Ngure & another v Peter Njoroge Kinyanjui [2022] eKLR, it was held that:“Trespass must be proved. Evidently the Respondent did not lead evidence to proof any trespass by the Appellants. It is still a mystery to the Court why the 1st Appellant was sued in this case. I say so because there appears to be no cause of action clearly targeted at the 1st Appellant.” 32.The Defendants herein have not denied that they are on the suit land; however, they argue that this is by right. To establish whether there has been trespass, one must prove that they have an exclusive right to possession and occupation of the suit property, as held by the Court in the case of M’Mukanya v M’Mbijiwe (1984) KLR 761:“trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership (See Thomson v Ward, (1953) 2QB 153.” 33.Thus, to determine whether there is any trespass, we must answer the following question.b.Have the Defendants established whether they have rights of adverse possession over the suit property? 34.Section 7 of the Limitation of Actions Act CAP 22 Laws of Kenya provides that:“An action may not be brought by any person to recover the 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.” 35.Section 37 provides for the application of the Limitation of Actions Act to registered land and states that:“This Act applies to land registered under the Government Lands Act (Repealed), the Registration of Titles Act (Repealed), the Land Titles Act (Repealed) or the Registered Land Act (Repealed), in the same manner and to the same extent as it applies to land not so registered, except that—(1)where, if the land were not so registered, the title of the person registered as proprietor would be extinguished, such title is not extinguished but is held by the person registered as proprietor for the time being in trust for the person who, by virtue of this Act, has acquired title against any person registered as proprietor, but without prejudice to the estate or interest of any other person interested in the land whose estate or interest is not extinguished by this Act.” 36.Section 38(1) of the Limitation of Actions Act CAP 22 provides as follows:“Registration of title to land or easement acquired under Act 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.” 37.In Mtana Lewa v Kahindi Ngala Mwagandi [2015] e KLR, the Court of Appeal defined adverse possession as:“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in the assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 38.It has been established that the Defendants have been in possession of the suit land for some time; what has been debated is the length of time since they began possession: is it since 1995 or 2013? If so, since 2013 the Plaintiff had already asserted her rights through Karatina Criminal Case No. 135 of 2014 and by filing this suit herein before the lapse of 12 years. As held in the case of Githu vs Ndeete [1994] KLR, quoted by the Court of Appeal in Kenya Commercial Bank (Suing as administrator of the Estate of Paul Njoroge Muchene) v Serah Njeri Muchene (sued on behalf and as the administratrix of the Estate of Perminus Muchene Mwangi):“….time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his rights or when his right is admitted by adverse possession. Assertion occurs when the owner takes legal proceedings or makes an entry into land.” 39.None of the Defense witnesses has produced any evidence, and they relied solely on their witness statements to prove that they have been in possession of the same since 1995. Adverse possession must be proven, and I think the Defendants have failed to do so. In the case of Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR, the Court found that:“Likewise, it is settled that a person seeking to acquire title to land by adverse possession must prove non-permissive or non-consensual, actual open, notorious, exclusive and adverse use/occupation of the land in question for an uninterrupted period of 12years as espoused in the Latin maxim, nec vi nec clam nec precario. See Jandu vs. Kirplal & Another (1975) EA 225. In other words, a party relying on the doctrine bears the burden of demonstrating that the title holder has lost his/her right to the land either by being dispossessed of it or having discontinued his possession of it for the aforementioned statutory period. See this Court’s decision in Wambugu vs. Njuguna [1983] KLR 173.” 40.The Defendants also relied on a familial trust created by the Plaintiff's inheritance, asserting that their mother was also entitled to inherit the same land. They did not assert this right in this suit. Yet again, they failed to prove this point. In the case of Cosmas Cherono & 2 others v Veronica Cherono [2021] eKLR, the court cited with approval the case of;“In Juletabi African Adventure Limited & Another v Christopher Michael Lockley [2017] eKLR, the Court also held that …. It is settled that the onus lies on a party relying on the existence of a trust to prove it through evidence. That is because: -The law never implies, the Court never presumes, a trust, but in case of absolute necessity. The Courts will not imply a trust save in order to give effect to the intentions of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.” That in the instant case, the import of the foregoing precedents is that it is upon the plaintiffs to lead evidence proving that indeed a constructive trust existed. It was incumbent on the plaintiffs to demonstrate that the suit property was ancestral land, and that it was vested in Joseph Rutto Cherono to hold for the family. Importantly, the court is not obligated to imply the existence of a trust outside the express and clear intention of the parties.” 41.Ours is an adversarial court system, where the burden of proof rests with the party seeking the court's orders. Section 107 of the Evidence Act provides that:“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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 42.Furthermore, Section 109 of the aforementioned act provides:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”. 43.It is therefore my view that the defendants failed to prove entitlement to adverse possession. Thus, the Plaintiff, as the absolute registered owner of the suit property, has proved that she has exclusive rights to it. However, she cannot yet evict the defendants, as they have a right to remain on the suit property because their mother had a right to inherit the land. The defendants did not seek a declaration of customary trust. It was not pleaded here, perhaps in another suit. It is a defense available to them for now. 44.These are parties who must learn how to coexist. 45.Thus, the plaintiff's suit and the defendant's counterclaim are dismissed with no order as to costs. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NYERI ON THIS 1ST DAY OF JULY 2026.E. K. MAKORIJUDGEIn the Presence of:Mr. Kahiga for the DefendantsDenis - Court AssistantIn the absence of:Mr.Baru for the Plaintiff