https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5098

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ECLOS E017 OF 2023** **DOUGLAS WANYAGA GICHUKI …………………………………….......1ST APPLICANT** **ESTHER NYAMBURA GIKONYO ………………………………….......2ND APPLICANT** **VERSUS** **CHURCH COMMISSIONER OF KENYA .....................................................RESPONDENT** **JUDGMENT** 1. In the originating summons dated 28-11-2023, the Applicants seek the following orders against the Respondent. 2. **That the Applicant has by way of adverse possession acquired title to L.R. No. Loc.14/Kairo/708 and it be registered in the names of Douglas Wanyaga Gichuki and Esther Nyambura Gikonyo.** 3. **That the Land Registrar Murang’a be ordered to transfer the said land comprised of title No. Loc.14/Kairo/708 to the Applicants.** 4. **That the Deputy Registrar of this court do sign the application for the Land Control Board, transfer documents and any other documents necessary to facilitate the transfer of the suit land to the Applicant.** 5. **That the Respondent do pay the costs of this suit.** 6. The Applicants’ case is as follows. Firstly, the first Applicant is aged 72 years and he was born on the suit land in the year 1954. The second Applicant was also born on the suit land in 1966. The suit land belonged to the family of Gichuki Wanyaga who is the father of the 1st Applicant and grandfather of the 2nd Applicant. This Gichuki Wanyaga went to the forest in 1952 to fight for Kenya’s Independence and never came back home. The 1st Applicant was brought up by his mother, Wothaya Gichuki. The 2nd Applicant is the daughter of the 1st Applicant’s brother, Gikonyo Gichuki. 7. Secondly, Gichuki Wanyaga, the 1st Applicant’s father had two wives. One wife was the mother to Wanyaga Gichuki while the other wife, Wothaya Gichuki, was the mother to the 1st Applicant. The 1st Applicant and his half brother Wanyaga Gichuki share the same name. The only way to differentiate the two is to call the 1st Applicant Douglas Wanyaga Gichuki because his step brother is also called Wanyaga Gichuki. The other way would be to call the other Wanyaga Gichuki, senior, because he was older than Douglas. 8. Thirdly on 26-6-1962, the Senior Wanyaga Gichuki became registered as the owner of the suit land but as at trustee for the family of his absent father, Gichuki Wanyaga. The Senior Wanyaga Gichuki migrated to the Rift Valley province where he settled in Njoro area. The only reason that the Senior Wanyaga Gichuki was registered as the owner of the land was because he was an adult in 1962 and therefore had an identity card unlike the 1st Applicant who was still a child and had no identity card. 9. Fourthly, the only time the Senior Wanyaga Gichuki ever came to the suit land was in the year 1992 when he came for the burial of Wothaya Gichuki, the 1st Applicant’s mother. She was buried on the suit land. Earlier, in the year 1979, Gikonyo Gichuki had also been buried on the same land. Gikonyo is a brother to the 1st Applicant and father to 2nd Applicant. Also buried on the suit land is Simon Mbithi, a nephew to the 1st Applicant. 10. Fifthly, the Applicants have no other land they can call home. The suit land is their only family land. They have lived on the suit land all their lives and they have no alternative land. 11. Sixthly, in the year 1995, Senior Wanyaga Gichuki turned against the Applicants and sued them at Kangema Law Courts and he obtained orders for their eviction. They have resisted eviction until the year 2024 when their homes demolished. Currently, they are being accommodated by Good Samaritans. According to the 1st Applicant, he is entitled to at least a half of the suit land and he would prefer the part of the land where his relatives are buried. The church can have the other half which is the share of Senior Wanyaga Gichuki. 12. In support of their case, the Applicants filed the following evidence. 13. **Supporting affidavit dated 28-11-2023 sworn by Douglas Wanyaga Gichuki and Esther Nyambura Gikonyo.** 14. **Copy of register for the suit land from 26-6-1962 to 12-11-2023.** 15. **Five coloured photographs.** 16. **Copy of judgment in Murang’a CM’s Case No. 454 of 2014.** 17. The originating summons is opposed by the Respondent and Dishon Mwangi Wanjohi has sworn a replying affidavit dated 13-2-2024 in which he replies as follows. One, the originating summons is based on deliberate lies and some untruths because the Applicants did not have permanent structures on the land but dilapidated mud structures. Two, the Applicants have not bothered to explain when their adverse possession commenced. Three, the Respondent lawfully acquired the suit land on 28-11-2012 through purchase from the registered owner. Four, the 1st Applicant fraudulently obtained registration of the suit land in his name using the similarity in their names to pretend that he was the registered owner. Five, in Murang’a SPMCC No. 126 of 1995, a decree was issued cancelling the 1st Applicant’s title and reinstating the land into the name of Wanyaga Gichuki, the original owner, who is the predecessor on title to the Respondent. The period preceding 27-1-2000 should not be counted when determining the question of adverse possession since Wanyaga Gichuki had previously allowed the 1st Applicant to take care and utilize the suit land in his absence and also that after the 1st Applicant fraudulently acquired title to the suit land the Applicants cannot claim to have been in adverse possession. Six, on 7-7-2022 the Respondent obtained a decree in Murang’a CMCC No. 454 of 2014 for eviction of both Applicants. Seven, on 23-8-2005, Wanyaga Gichuki obtained an eviction order dated 23-8-2005 against the Applicants but he passed away before he could execute it. The only date from which the Applicants can claim to have been in adverse possession of the suit land is from 23-8-2005 which is the date when the order for eviction was made but time stopped running on 24-11-2014 when the suit was filed. Seven the Applicants did not appeal against their eviction which was ordered in Kangema LDT Case No. 17 of 2005. Again on 18-7-2023 the Appellants tried to appeal against the Judgement in Murang’a CMCC 454 of 2014 and also to stay the execution of the decree but they failed. 18. In support of its defence, the Respondent filed the following evidence. 19. **Replying affidavit dated 13-2-2024.** 20. **Copy of decree in SPMC No. 126 of 1995 dated 27-1-2000.** 21. **Copy of decree in Murang’a CMC Case No. 454 of 2014 dated 12-4-2023.** 22. **Copy of order in Case No. 454 of 2014 dated 7-8-2023.** 23. **Copy of decree in Kangema LDT Case No. 17 of 2005.** 24. **Witness statements by Dishon Wanjohi Mwangi, Elias Ngari Karachi and Joseph Maina Gathonjia all dated 8-3-2024.** 25. At the trial on 10-6-2026 and 16-6-2026 the two Applicants and the three witnesses for the Respondent testified by adopting their affidavits or witness statements and they were then subjected to cross-examination. The witnesses testified as per their pleadings. None of them charged the positions in their written statements or affidavits. The only notable deviation was by the 1st Applicant saying that they claim half of the suit land while the other half should be occupied by the church. The 2nd Applicant was silent on this and I assume that she claims the whole of the suit land as per the pleadings. 26. Counsel for the parties filed written submissions dated 23-6-2026 and 17-7-2026 respectively. The Respondent’s counsel identified the following issues for determination.. 1. **Who is the registered proprietor of the suit land Loc.14/Kairo/708.** 2. **How long have the Plaintiffs been in possession of the suit land.** 3. **Whether such possession has been adverse to the title holder.** 4. **When such adverse possession commenced and ended.** On whether the other hand, the Applicants’ counsel identified her own separate issues. 1. **Whether the Applicants have been in adverse possession of the suit land.** 2. **Whether the Respondents’ entitlement and title to the suit land has become extinguished by the Applicants land rights in the said land** 3. **Whether the Applicants are entitled to the prayers sought.** 4. I have carefully considered all the evidence adduced in this case by both sides including the affidavits, the witness statements, the documents and the testimonies of the witnesses at the trial. I have also considered the written submissions by learned counsel for the parties. I agree with the learned counsel that the issues identified will resolve the dispute. However, I find that there is an issue not addressed by the learned counsel but which has arisen from the totality of the proceedings herein. I frame the said issue under Order 15 rule 2 of the Civil Procedure Rules which empowers the Court to frame an issue from the material on record. It provides as follows. “ **The Court may frame the issues from all or any of the following materials-** 1. **allegations made on oath by the parties, or by any persons present on their behalf, or made by the advocates of such parties,** 2. **allegations made in the pleadings or in answer to interrogations delivered on the suit;** 3. **contents of documents produced by either party.** In their supporting affidavit dated 28-11-2023 the Applicants have stated at paragraphs 2 and 3 that the suit land was acquired by their parents. They repeated this in their testimony in Court on 10-6-2026. The issue that I will frame is as follows. **“ whether the Applicants are entitled to the suit land or part of it by way of Customary Trust.”** 1. Starting with the first of the Respondent’s issues, currently the registered owner of the suit land is the respondent as can be seen from entry numbers 11 and 12 of the register. This evidence is not disputed by the Applicants because they have filed the copy of the register as their evidence. 2. In answer to the second issue, I find that the 1st Applicant has been in occupation of the suit land from 26-6-1962 to the date of eviction or departure in April 2024. This is from the evidence of the 1st Applicant and that of Joseph Maina Gathonjia. The evidence from the Plaintiff is proof that he was born on the land in the year 1954 and this evidence is uncontroverted by any evidence from the Respondent. The evidence that the Applicants were evicted on April 2024 is by DW 2, Joseph Maina Gathonjia, who testified on 16-6-2026. As for the 2nd Applicant, I find that she has been in occupation of the suit land from 1966 when she was born to April 2024 when she was evicted or removed herself. This finding is as per the evidence of the 2nd Applicant given on 10-6-2026 and which is uncontroverted. The evidence of eviction or voluntary departure is by Joseph Maina Gathonjia, DW 2. 3. Looking at the Respondent’s third issue, I find that the adverse possession began in the year 1995 when the late Wanyaga Gichuki filed case No. 17 of 2005 at the Kangema Land Disputes Tribunal. The unlawful occupation could also have commenced in 1962 if the Senior Wanyaga Gichuki assumed that the suit land was his alone. We do not know if it is true that he told the Respondent’s witnesses that he had authorized the 1st Applicant to occupy the land as a caretaker. All that is hearsay because Senior Wanyaga Gichuki never testified in this case. The evidence by the Respondent’s witnesses on what he may have said is hearsay. In the absence of concrete dates by the Applicants of the commencement of the adverse possession it is difficult to tell the period of the alleged adverse possession. This finding covers the issues raised by the Applicants’ Counsel. While it is true that the Applicants may have occupied the suit land adverse to the title of Wanyaga Gichuki, the burden was upon them to clarify the period of commencement of the said occupation without permission of the deceased owner. This lack of clarity on dates seriously undermines the Applicants’ claim of adverse possession because the burden of proof is on them. The suits at the tribunal and the eviction order issued in the year 2005 and failure to appeal against the said orders means that the Applicants’ claim for adverse possession is both shaky and doubtful. 4. While the Applicants’ claim to the suit land by way of adverse possession may be shaky and doubtful, their claim for half of the suit land by way of customary trust is well founded and supported by the evidence adduced and the law. The evidence that the Applicants have been on the suit land since birth is uncontroverted. Also uncontroverted is the evidence that they have no other family land from their father or grandfather Wanyaga Gichuki. The evidence of burying three (3) relatives on the suit land too is unchallenged. Finally, it is not contested that the Senior Wanyaga Gichuki is the 1st Applicant’s step brother and namesake. Section 28(b) of the Land Registration Act provides as follows. **“Unless the contrary is expressed in the register, all registered shall be subject to the following overriding interests as may for the time being subsist and effect the same, without their being noted on the register-** **(b) trusts including customary trusts”.** Section 30(g) of the Registered Land Act (Cap 300, now repealed)provided as follows. **“Unless the contrary is expressed in the register, all registered shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register-** **(g) the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed.”** My interpretation of the two provisions of the repealed Land Registration Act (Cap 300) and the Land Registration Act (Act No. 3 of 2012) is that the titles held by both Wanyaga Gichuki and the Respondent are subject to the rights of persons in possession and customary trusts which are overriding interests. Senior Wanyaga Gichuki did not own the suit land alone. The Applicants are entitled to a half share. 1. It is noteworthy that the Senior Wanyaga Gichuki did not evict the Applicants from the suit land. It is not enough for the Respondent to say that he died before he could evict the Applicants from the suit land because the administrators of his estate should have continued with the suit to its logical conclusion including eviction of the Applicants. All agreements of the sale land have a covenant that the vendor shall give the purchaser vacant possession. By accepting to purchase land that was occupied by the Applicants, the Respondent took over the encumbrance of the land by the customary trust enjoyed by the Applicants. 1. In the case of **Isack M’Inanga Kiebia Vs. Isaya Theuri M’Lintari and Another** Petition No 10 of 2015, the Supreme Court of Kenya held as follows inter alia at paragraph 58 of the judgment dated 5-10-2018. **“…It is now clear that customary trusts, as well as all other trusts are overriding interests. These trusts, being overriding interests, are not required to be noted in the register.”** It is my finding that the Applicants enjoy overriding interests in the nature of customary trusts by virtue of being son and granddaughter of Gichuki Wanyaga, the original owner of the suit land on whose behalf Wanyaga Gichuki was registered as owner. 1. In conclusion and for the reasons given I order as follows. 2. **The title to the suit land held by the Respondent is hereby revoked.** 3. **The suit land to be subdivided into two(2) equal halves. One half to be registered in the name of the Applicants jointly and the other half in the name of the Respondent. The Applicants to take the half that has the graves of their relatives.** 4. **The Deputy Registrar to execute all instruments necessary to ensure full compliance with the decree herein.** 5. **Costs to the Applicants.** **It is so ordered.** **Dated, signed and delivered virtually at Murang’a this 29th day of July, 2026.** **M. N. GICHERU** **JUDGE** **Delivered online in the presence of:-** **Court Assistant - Antony** **Plaintiff’s Counsel – Miss Waringa Wahome** **Respondent’s Counsel – Mr. Gichuki**