Njeru v Nguyu (Land Case Appeal E027 of 2025) [2026] KEELC 3422 (KLR) (28 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCL APPEAL NO. E027 OF 2025** **GERALD MUTINI NJERU....................................................APPELLANT** **VERSUS** **DIONISIO NGUNGI NGUYU..................………….…......RESPONDENT** ***(Being an appeal from the Judgement of Hon. Francis Kyambia (CM) delivered on 18/03/2025 in Embu MCELC Case No. 62 of 2018 Dionisio Ngungi Nguyu v Gerald Mutini Njeru)*** **JUDGMENT** 1. The Respondent herein was the Plaintiff before the trial court wherein he had sued the Appellant vide a Plaint dated 23/04/2018 seeking inter-alia, that the Court be pleased to issue a mandatory order against the Appellant, his agents, family members, successors in title, assigns or anybody else acting on his behalf or behest to remove any structures on, brought or made in the process of trespassing on the Respondents land parcel No. Mbeere/Kirima/3609, 3587 and 3588 and for them to immediately vacate the said parcels of land; he sought a declaration that the Appellant invasion of the suit lands was unlawful and constitutes illegal trespass and therefore damages ought to accrue to the Respondent; that the Assistant County Commissioner Mbeere Sub County and the OCS Kiritiri do enforce the Court orders and ensure that peace prevails. 2. The Respondents case was that he is the registered owner of the suit parcels of land and that his title is indefeasible as a first registered owner under the Registered Land Act and which land is not subject to any overriding interests. He averred that he is prevented from freely utilizing the said parcels of land by the presence of the Appellant on the suit lands and that despite notice to the Appellant to vacate, he has failed to do so and continues to wrongfully hold possession of the land. 3. The Appellant filed an amended statement of Defence and Counterclaim dated 10/01/2023. He averred that the suit lands were part of the original land parcel No. 2244 measuring approximately 7,000 acres, which belonged to seventeen clans, among them the Ikambi and Rweru clans. He further averred that his entitlement to the original land parcel No. 2244 is derived from his status as a grandchild and great-grandchild of the ancestors who had lived on and been in uninterrupted, exclusive and continuous occupation of the suit lands for decades. 4. He averred that land parcel No. 3588 is registered in the name of Nicholas Kariuki Njeru, while parcel No. 3587 is registered in the name of Godfrey Muriithi Njeru, who were not made parties to the suit. He further averred that his great-grandparents were originally from the Rweru Clan but moved and settled on the suit properties long before the Respondent was born and, as such, having himself been born and raised on the land, he knows no other place to call home. 5. The Appellant stated that he did not get an opportunity to claim the parcels of land during the adjudication period because the adjudication process was not properly conducted. He further averred that, together with his family, they have extensively developed the suit lands by planting indigenous trees which are now mature, cultivating miraa, constructing several permanent and semi-permanent structures, openly burying their kin on the land, and planting different types of trees and fruits. 6. In the Counterclaim, the Appellant averred that the Respondent was registered as proprietor of land parcels Mbeere/Kirima/5459 and 5460 in trust for the Appellant. He sought interalia, a declaration that the Respondent holds land parcels 5459 and 5460 in trust for him; an order that the trust be determined and the title deeds in respect of the two parcels of land be rectified accordingly and that the parcels No. 5459 and 5460 be registered in the Appellants favour. 7. The Respondent filed a reply to the statement of Defence and Counterclaim and denied the Appellant’s allegations. 8. When the former suit came up for directions, the parties agreed to proceed with the hearing by way of viva voce evidence. 9. PW1, Dionisio Ngungi Nguyu adopted his written statement dated 23/04/2018 as his evidence in chief. In his statement, he stated that in the year 1969 or thereabout, the people of Mbeere through the 17 clans of Mbeere gave out all the land that is now comprised of Mbeere South District, out of which the suit lands were hived out, to a certain Indian to cultivate. He averred that the Indian was unable to pay the lease fees and they therefore reacquired the land after winning a case filed by the Embu County Council against them. That it was directed that every clan was to give a piece of land to their clan members. 10. He averred that in 2008, he subdivided the Rweru clan land and gave a portion to the clan members. He stated that he was apportioned land parcel 3609 and purchased land parcels 3577 and 3588. That after he purchased the said parcels of land, the Appellant who had illegally squatted on the said parcels of land refused to vacate and continued living there claiming to be the owner and that he was born on the lands. He stated that he reported to the chief and the Appellant was summoned nine times but only appeared once. 11. On cross examination, he stated that land parcel 3609 is registered in his name whereas land parcels 3587 and 3588 are registered in the names of Geoffrey Njeru and Kariuki Njeru respectively, who are not parties to the suit. He stated that he had not proved that they had given him authority to sue on their behalf. He stated that the Appellant was in occupation of land parcel 3609 where he is farming miraa and that he trespassed on the land. That he was registered as the owner of the land in 2009 but the title deed was issued in 2010. That the land was previously registered in the name of Maringa Murunga who was registered as the owner in 1969. 12. On re-examination, he stated that land parcel 3609 was given to him by the clan and that the other two parcels he purchased from the registered owners. He stated that the Appellant has not constructed on the land and that he entered the land in 2008 and started faming without the Respondents permission. That land parcels 3373 and 3374 were allocated to the clan and that parcel No. 3609 was hived from parcel no. 3373. He stated that the Appellant belonged to the Ikandi clan and that their clan was given their own parcel of land. 13. He produced in evidence, a copy of a title deed for land parcel 3609, a list of beneficiaries of land parcel 3373 belonging to the Rweru clan, minutes of a meeting held on 15/08/2008 by the Rweru clan members, chiefs letters for the period between 2011 and 2017, sale agreements dated 03/02/2014 and 25/04/2015 and a demand letter dated 21/03/2018. 14. PW2, Nelson Runji Njira adopted his written statement dated 23/04/2018 as his evidence in chief. In his statement, he stated that the Appellant was from the Ikandi clan whereas they belong to the Rweru clan with the Respondent. He stated that the Appellant was supposed to claim land from the Ikandi clan and not the Rweru clan. 15. DW1 Gerald Mutini Njeru adopted his written statement dated 10/09/2018 as his evidence in chief. In his statement, he stated that he was born in 1987 and that he was born on the disputed land. He stated that he belonged to the Ikandi clan and that his parents Njeru Ngaiyanja and Sabina Nguku, have resided on the disputed land since 1970’s. He stated that he has put up his home and planted mangoes, bananas, miraa and mikau (hardwood) on the land. 16. On cross examination, he stated that he belongs to the Ikandi clan whereas the Respondent belongs to the Rweru clan. He stated that both the Ikandi and Rweru clans were given their own parcels of land but he did not know how the land was being shared. He stated that his father passed on in 2022 and was buried on the land where he lives. He stated that he received letters from the chief between 2008 and 2011 summoning him and that he would attend the summons. He stated that he planted miraa on the suit land in 2008 and that he has built a house in the land. He stated that he did not participate in the adjudication process. 17. Upon evaluating the evidence, the court found that the Respondent had successfully proved ownership of parcel No. Mbeere/Kirima/3609 by producing a valid title deed and demonstrating that the parcel originated from land allocated to the Rweru Clan, of which he was a member. The court noted that the Appellant belonged to the Ikandi Clan and therefore could not claim entitlement to land allocated to the Rweru Clan. However, the court found that the Respondent failed to establish ownership of parcels Nos. 3587 and 3588 since the same were registered in the names of third parties who were not joined in the proceedings. Consequently, the court partly allowed the Respondent’s claim in respect of parcel No. Mbeere/Kirima/3609. 18. The court further rejected the Appellant’s claim of adverse possession, holding that the Appellants possession was not uninterrupted for a period of 12 years as the Respondent was only registered as proprietor of land parcel 3609 in 2010. The claim of customary trust was equally dismissed on the basis that the Appellant had not proved that he came from the Rweru clan which was allocated land parcel 3373 out of which the land parcel 3609 was excised. The Court issued a mandatory injunction against the Appellant and directed the Appellant to vacate land parcel 3609 and remove all structures thereon within sixty days, failing which eviction would issue in accordance with the provisions of the Land Act. The court further declared the Appellants occupation of the parcel unlawful and amounting to trespass. The Respondent was awarded costs of the suit, while the Appellant’s counterclaim was dismissed with costs. 19. The Appellant was aggrieved by the impugned decision and preferred the present Appeal on the following grounds; 20. That the learned trial Magistrate erred in law and fact in issuing an order of eviction in respect of parcel of land No. Mbeere/Kirima/3609 which does not exist. 21. That the learned trial Magistrate erred in law and fact in falling to consider that the Respondent had misled the court in producing a copy of the title deed to parcel No. 3609 as proof of ownership yet he had already subdivided the land into parcels No. 5459 and 5460. 22. That the learned trial Magistrate erred in law and fact in holding that the letters from the chief summoning the Appellant concerning the ownership of the suit property interrupted the Appellants possession of the suit property. 23. That the learned trial Magistrate erred in law and fact when he failed to consider that the Appellants claim had been overtaken by effluxion of time as provided for in section 7 of the Limitation of Actions Act. 24. That the learned trial Magistrate erred in law and fact in failing to give the necessary weight to the Appellants evidence. 25. The Appellant sought to have the appeal allowed, the judgement of the trial Court set aside and substituted with orders allowing the Appellants prayers in the Counterclaim with costs. 26. When the appeal came up for directions, the parties agreed to canvass the appeal by way of written submissions. The Appellant filed submissions dated 05/12/2025 and further submissions dated 12/03/2026 through the firm of Rose W. Njeru & Company Advocates. They submitted that the trial Court erred in making orders over a parcel of land that did not exist at the time as the land parcel 3609 had been closed on subdivision and issued with new titles Nos 5459 and 5460 and therefore the judgement was a nullity. He averred that the Respondent did not prove ownership of the resultant land parcels yet eviction was issued which was a fatal error. He submitted that together with his parents, they have been in possession of the suit land since the 1970’s and that the suit had been filed in 2018 meaning that their occupation exceeds the statutory period of 12 years. 27. The Respondents filed submissions dated 03/02/2026 through the firm of Guantai & Associates. They submitted that the Respondent is the absolute registered owner of Land Parcel Nos. Mbeere/Kirima/3609 (now subdivided into Mbeere/Kirima/5459 and 5460), 3587 and 3588, and holds valid title deeds. That the Respondent acquired land parcel 3609 as his share from Rweru Clan land following adjudication and subdivision of the original parcel Mbeere/Kirima/2244 which belonged to 17 clans. He is therefore a lawful proprietor. It was submitted that the Respondent lawfully purchased Land Parcel Nos. 3587 and 3588 from the registered owners, Nicholas Kariuki Njeru and Godfrey Muriithi Njeru, who were members of Rweru Clan. That the purchases were supported by evidence of the sale agreements dated 03/02/2014 and 25/04/2015 and therefore the Appellant qualifies as a bona fide purchaser for value. 28. It was submitted that the Appellant’s claim of beneficiary or customary trust over the suit lands was unproven. That the suit properties originated from clan land allocated to Rweru Clan, and the Appellant belongs to a different clan, Ikandi Clan. There was therefore no nexus between the Appellant and Rweru Clan, and therefore no basis for a customary trust. It was submitted that the Appellants argument bordered a right in adverse possession which the Appellant neither invoked nor applied for and therefore he remained to be a mere trespasser. It was submitted that any grievance by the Appellant regarding adjudication ought to have been raised during the adjudication process which the Appellant failed to do. The court was urged to dismiss the appeal with costs to the Respondent. 29. Having considered the record of appeal and the rival submissions, I find that the issue for determination is whether the appeal has merit. 30. The Respondent produced a valid title deed for parcel Mbeere/Kirima/3609, which under Sections 26 of the Land Registration Act is prima facie evidence of ownership and is only impeachable on grounds of fraud, misrepresentation, illegality, or procedural impropriety which were not proved in this case. The trial court correctly found that the Respondent had proved ownership of parcel 3609, which was excised from land originally allocated to the Rweru clan, of which he is a member. On the other hand, the Appellant by his own admission, belongs to the Ikandi clan, which was allocated its own land. 31. With respect to land parcels 3587 and 3588, the Respondent relied on sale agreements dated 03/02/2014 and 25/04/2015 to lay a claim of ownership of parcels **Mbeere/Kirima/3587** and **3588,** claiming to have purchased them from the registered proprietors. However, under the Land Registration Act, ownership of land can only be conclusively proved through production of a valid title deed. In the absence of such title, the sale agreements were insufficient to prove ownership of the said parcels of land. The trial court was therefore correct in holding that the Respondent had failed to prove ownership of the two parcels, as they remain registered in the names of third parties and that his claim could only succeed in respect of parcel 3609. 32. On the issue of adverse possession, the law under Section 13 (1&2) of the [Limitation of Actions Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1968/21) provides: 33. A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of Limitation can run (which possession is this Act referred to as adverse possession), where under sections 9, 10, 11 and 12 of this Act 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. 34. Where a right of action to recover land has accrued and thereafter, before the right is barred, the land cease to be in adverse possession, the right of action is no longer taken to have accrued and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land. 35. In the case of [Mtana Lewa –vs- Kahindi Ngala Mwagandi](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2015/532) [2015] eKLRthe 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 assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action 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.” 1. It follows that in order for a person to succeed in a claim for adverse possession, they must prove use and occupation or in other words possession of the land, with the knowledge of the owner and such use and occupation must not be broken or interrupted for a period of twelve years. The possession must also be open and notorious with the intention to defeat the registered owner’s title. 2. In this case, the evidence shows that the original parcel **2244** belonged to the seventeen Mbeere clans. Parcel **3373** was excised from that original land and allocated to the Rweru clan, and from parcel 3373, parcel **3609** was further excised and later registered in the Respondent’s name. This Court agrees with the trial Court that during the period the land remained the property of the clan, no claim of adverse possession could arise, since adverse possession presupposes a registered proprietor against whom time can run. The Respondent was only registered as proprietor of parcel 3609 on 31/03/2010, and a title deed was issued on 07/05/2010. It is from that point that time for purposes of adverse possession could begin to run. Therefore, by the time the suit was filed on 24/04/2018, only about eight years had passed, short of the statutory period of twelve years. The Appellant was therefore not able to prove that he had become entitled to land parcel 3609 by way of adverse possession and the trial Court did not err in that regard. 3. On the issue of a customary trust, the Supreme Court in Kiebia v M’lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR) clarified that not every claim to land amounts to a customary trust; the claimant must show: 4. The land in question was before registration, family, clan or group land. 5. The claimant belongs to such family, clan, or group 6. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous. 7. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances. 8. The claim is directed against the registered proprietor who is a member of the family, clan or group. 9. In this case, parcel No. **3609** was excised from parcel No. **3373**, which had been allocated to the Rweru clan. The Respondent demonstrated that he is a member of the Rweru clan and was duly allocated the land during subdivision, later obtaining a valid title deed. The Appellant, however, admitted that he belongs to the Ikandi clan, which had its own separate allocation from the original parcel 2244. He therefore failed to establish any nexus between himself and the Rweru clan and therefore the trial Court rightfully dismissed his claim of customary trust. Further, the Appellant’s argument that the trial court issued orders over a non-existent parcel is without merit. This is because, subdivision merely results in new titles that remain traceable to the parent title, and the rights of the registered proprietor flow into the resultant parcels. The Respondent’s ownership was properly established, and no evidence was tendered to show that the resultant parcels were registered in the names of other persons. 10. Consequently, and in light of the foregoing, I find no merit in the appeal. The same is hereby dismissed with costs to the Respondent. **DATED, DELIVERED AND SIGNED AT EMBU THIS 28TH DAY OF MAY, 2026.** **HON.E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Mr. Kirang Kariuki H/B for Guantai for the Respondent 2. Appellant in person-present 3. M/S Ruth C/A