https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4039

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCOS CASE NO. E004 OF 2023** **HARUN NDAMBUKI WAEMA :::::::::::::::::::::::::::::::::::::::: PLAINTIFF** **VERSUS** **MAKAU NDUNDA::::::::::::::::::::::::::::::::::::::::::::::::::::1STDEFENDANT** **WAMBUA NDUNDA::::::::::::::::::::::::::::::::::::::::::::::::2ND DEFENDANT** **KIANGI NDUNDA:::::::::::::::::::::::::::::::::::::::::::::::::::3RD DEFENDANT** **NTHAMBA NDUNDA:::::::::::::::::::::::::::::::::::::::::::::::4TH DEFENDANT** **MUENI NDUNDA::::::::::::::::::::::::::::::::::::::::::::::::::: 5TH DEFENDANT** **JUDGEMENT** The application is by the Plaintiff who claims to be entitled to ownership and registration of the title in his favour by adverse possession to two decimal one five eight (2.158) hectares of that parcel of land known as Yatta/Ekalakala/1259 for determination of the following questions; 1. Whether the Plaintiff is entitled by virtue of adverse possession to two decimal one five eight (2.158) hectares of that parcel of land known as Yatta/Ekalakala/1259 which is registered to the one Itumbi Mutuku (deceased). 2. Whether the Plaintiff should be registered as proprietor of two decimal one five eight (2.158) hectares of that parcel of land situate in Machakos County and known as Yatta/Ekalakala/1259 which is registered to one Itumbi Mutuku (deceased). 3. If answers to (a) and (b) above are in the affirmative, whether the court should make declarations and orders directed to the County Lands Registrar Machakos to give effect to the said findings. 4. Whether the Plaintiff should be paid costs of this suit. This summons is supported by the annexed affidavit of Harun Ndambuki Waema and based on the grounds that the deceased is the registered owner of land parcel number Yatta/Ekalakala/1259. That the Plaintiff has been openly, peacefully and actively in use and occupation of 2.158 hectares of the said parcel for an uninterpreted period of more than twelve (12) years. That the Defendants and the deceased have not made any attempt to recover the portion of land aforementioned from the Plaintiff for the aforesaid period. That the period allowed by law for the Defendant and the estate of the deceased to claim the portion from the Plaintiff has lapsed and the Plaintiff has now become entitled to be declared and registered as the owner thereof through adverse possession. That the Plaintiff's occupation of the said portion has been averse to the interest of the Defendant and the estate of the deceased and without their permission. After considering the originating summons application, the replying affidavit and submissions therein, I have found that the issues for determination are as follows; 1. *Whether or not the Plaintiff has met the threshold for adverse possession**.* 2. *Who will bear the costs?* The provision of law concerned with adverse possession is section 38 (1) and (2) of the Limitations of Actions Act Cap 22 which states as follows; *“(1) 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.* *(2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.”* And section 37 of the Limitations of Actions Act Cap 22 states as follows: *‘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—* | | | | --- | --- | | *(a)* | *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;’’* | The law in respect to adverse possession is now settled. For a party to succeed in a claim of adverse possession he/she must satisfy the following criteria stated in the case of Maweu vs Liu Ranching and Farming Cooperative Society 1985 KLR 430 where the Court held; *“Thus, to prove title by adverse possession, it was not sufficient to show that some acts of adverse possession had been committed. It was also to prove that possession claimed was adequate, in continuity, in publicity and in extent and that it was adverse to the registered owner. In law, possession is a matter of fact depending on all circumstances”.* I am also guided by Samuel Miki Waweru vs. Jane Njeru Richu, Civil Appeal No. 122 of 2001, the Court of Appeal delivered the following dictum: *“…it is trite law a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in (accordance with) provisions of an agreement of sale or lease or otherwise. Further, as the High Court correctly held in Jandu v Kirpal [1975] EA 225 possession does not become adverse before the end of the period for which permission to occupy has been granted.”* The Defendants produced the certificate of title and certificate of official search that showed that Itumbi Muthoka (Deceased) as the owner of Yatta/Ekalakala/1259. No evidence has been provided to show that the Defendants are the administrators of the Estate of Itumbi Muthoka. Be that as it may, the law and requirements for adverse possession was reiterated in the case of **Mbira vs Gachuhi, (2002) IEALR 137** where it was held that: “……. a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutory prescribed period without interruption….” In the instant matter, the Plaintiff stated that the he and the Deceased settled in the said suit area in the 1970s before adjudication. The each of them used distinct parcels duly marked with euphorbia and trenches. After adjudication the parcel was 3.6 HA and the Deceased’s was 2.052 HA. After registration parcel of land known as Yatta/Ekalakala/1259 which is registered to the one Itumbi Mutuku (deceased) and land became parcel of land known as Yatta/Ekalakala/1258 in his name. In 2009 the Defendants stated that the boundary should be moved hiving out a portion from his land. It later occurred to him that the registry index maps were manipulated and changed resulting to the markers of the maps annexing and/or alienating part of his land measuring 2,158 HA. Nevertheless, from the testimony no evidence was adduced to show that Plaintiff began occupying the suit property in 1970. The next issue is whether the Plaintiff’s possession and occupation if at all of the suit property was adverse to the Defendants’ title and proprietary interest. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It must start with a wrongful dispossession of the rightful owner. (See comparative Indian cases of **S. M. Kenni alias Tamanna Sabeb vs Mst Bibi Sakina AIR 1964 SC 1254; and Parsimi vs Sukhi, 1993 4 SCC 375).** In**Alfred Welimo vs Mulaa Sumba Barasa, CA No 186 of 2011**, this Court expressed itself thus: “It is trite that adverse possession is not established merely because the owner has abandoned possession of his land and ceased to use it; for as Robert Megarry aptly observed in his Megarry’s manual of the Law of Property, 5th ed. page 490, the owner may have little present use for the land and that land may be used by others, without the users demonstrating a possession inconsistent with the title of the owner. So the mere fact that the appellant abandoned possession of the suit property and went to live at Ndalu scheme by and of itself does not establish adverse possession. The abandonment of possession must be coupled with the respondent taking possession of the land with animus possidendi (the intention to possess) and asserting thereon rights that are inconsistent with those of the appellant as the owner of the land….” For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted user of the land. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are important factors in a claim for adverse possession. The Plaintiff had the burden to prove not mere possession of the suit property, but possession that was nec vi, nec clam, nec precario. (See **Kimani Ruchine vs Swift, Rutherfords Co. Ltd. (1980) KLR 1500**and**Karnataka Board of Wakf vs Government of India & Others (2004) 10 SCC 779).** In **Wambugu vs Njuguna, (1983) KLR 173,**this Court held that adverse possession contemplates two concepts: possession and discontinuance of possession. It was further held that the proper way of assessing proof of adverse possession is whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period, and not whether or not the claimant has proved that he or she has been in possession for the requisite number of years. In the instant matter, DW1 the 2nd Defendant testified that he is the son of the registered owner of Yatta/Ekalkala/1258 and that the Plaintiff is a neighbour and resides on Yatta/Ekalkala/1259. That the boundaries on the ground are well marked and each party lives on their respective portions. That sometime in 2008 the Plaintiff started claiming a portion of 2 acres from their land. DW2 David Kilonzo a neighbour corroborated the Defendant’s evidence. He stated that he knows the boundaries of the two suit parcels and was there during the adjudication process. That the family of Wambua Ndambuki fully occupy their portion and the Plaintiff occupies his. That at one point the Plaintiff attempted to claim 2 acres from the Defendants but was stopped by the Wambua family. I find that this was basically a boundary dispute and the boundaries are clearly marked on the ground. The Yatta County Surveyor’s report dated 28th July 2023 confirmed that the map and the ground boundaries for land parcel Yatta/Ekalakala/1258 and land parcel Yatta/Ekalakala/1259 tally. Indeed, various correspondence has been adduced in court touching on the said dispute dated as early as 2009. Itumbi Muthoka Deceased’s title for land parcel Yatta/Ekalakala/1259 was issued in 2008. I find that the Plaintiff has not established that he had been in openly, peacefully and actively in use and occupation of 2.158 hectares of the said parcel Yatta/Ekalakala/1259 for an uninterpreted period of more than twelve (12) years. He is a neighbour and the boundaries are clearly demarcated on the ground. I find that the Plaintiff has failed to prove his case on a balance of probabilities and I dismiss it. Cost generally follow the event under Section 27 of the Civil Procedure Act and hence the Plaintiff is to bear the costs of this suit. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 2ND DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**