Njuguna v Njuguna (Enviromental and Land Originating Summons E032 of 2022) [2026] KEELC 3979 (KLR) (29 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC OS CASE NO. E032 OF 2022** **JAMES MBUI NJUGUNA** **……………………..……………………….** **PLAINTIFF** **VERSUS** **ANN MARY WARUIRU NJUGUNA ……..……………………….. DEFENDANT** **JUDGMENT** 1. By an Originating Summons dated 15th June 2022, the Plaintiff seeks a declaration that he has acquired title by adverse possession to a portion measuring approximately 100 feet by 100 feet excised from Land Parcel No. NGENDA/GATHAGE/492 (hereinafter ***“the suit property”***). 2. The Plaintiff contends that he has occupied and resided upon the said portion openly, continuously, exclusively, and without interruption since 1965, a period of more than twelve years thereby extinguishing the Defendant's title to that extent and vesting the same in him by operation of law. **Background** 1. The contest before the Court unfolds within the confines of a family, the Plaintiff and the Defendant being siblings whose competing claims to the suit property trace their origins to a common patriarch. 2. It is common ground that the Defendant is the registered proprietor of the suit property, having acquired title thereto pursuant to the wishes of their late father, who bequeathed the property to her before his demise. Beyond that common ground, however, the parties present sharply divergent accounts of the Plaintiff's occupation of the land and the legal consequences that flow from it. 3. The Plaintiff maintains that his occupation of the portion he claims has endured for decades and possesses all the attributes necessary to found a claim for adverse possession. He asserts that his possession has, over time, crystallized into a proprietary interest capable of protection by this Court. 4. The Defendant disputes the Plaintiff’s contention. While acknowledging the Plaintiff's presence on the land, she contends that such occupation has never matured into an adverse claim cognizable in law. Her position is that the Plaintiff's occupation has not been peaceful, uninterrupted, or inconsistent with her rights as registered proprietor. She further maintains that she has, at all material times, sought to secure vacant possession of the property and to remove the Plaintiff therefrom, albeit without success. 5. According to the Defendant, their late father distributed distinct parcels of land among his children during his lifetime and through his testamentary arrangements, with each beneficiary receiving his or her respective entitlement. She therefore contends that the present claim is devoid of merit and ought to be dismissed with costs. 6. Against that backdrop, the Court is called upon to determine whether the Plaintiff's occupation of the portion in question satisfies the legal requirements for acquisition of title by adverse possession and, if so, whether the reliefs sought should issue. **Plaintiff’s Case** 1. The Plaintiff, James Mbui Njuguna, was sworn in as PW1.The Plaintiff adopted his witness statement dated 15th June 2022 as his evidence in chief. The Plaintiff produced a list of documents containing a certificate of search dated 10th May 2022 which was marked as PEX1. 2. The Plaintiff contends he has been living on a portion measuring 100ft by 100ft on the suit property since the year 1965. He concedes that in 1983 the Defendant was registered as the owner of the suit property but maintained that he had enjoyed quiet, open, continuous, and uninterrupted occupation of the portion he claimed for a period exceeding twelve years. 3. The Plaintiff testified that he had developed the said portion by constructing a permanent house, an external kitchen, and a water tank, and by planting trees thereon. It was his evidence that no person had ever removed him from the land or successfully interrupted his occupation. Although the Defendant had, on various occasions, attempted to interfere with his fence, he testified that he had prevented her from doing so. On that basis, the Plaintiff contended that he had acquired title to the portion by adverse possession. 4. The Plaintiff prays for the 100ft by 100ft parcel on the suit property and the costs of this suit. 5. Upon cross-examination, the Plaintiff confirmed that the Defendant was his sister. He acknowledged that their late father had left a written will in which each of his nine children was bequeathed a respective portion of land and that he himself was allocated 1.09 acres. 6. The Plaintiff further acknowledged that the suit property had been bequeathed to the Defendant during their father's lifetime. He denied that the Defendant had ever attempted to evict him from the suit property and stated that he was unaware of any report allegedly made by the Defendant to the area Chief concerning his occupation. While acknowledging that he had at one point been arrested by the police, he testified that he did not record a statement at the police station. He further conceded that the suit property had not been surveyed. That marked the close of the Plaintiff's case. **Defendant’s Case** 1. Ann Mary Waruiru Njuguna, the Defendant herein was sworn in as DW1 and adopted her witness statement dated 4th November 2022 as her evidence in chief. 2. The Defendant testified that she is the registered proprietor of Land Parcel No. NGENDA/GATHAGE/492, measuring approximately 1.27 acres. It was her evidence that the suit property formed part of her inheritance from her late father, who passed away in 1994. 3. It was the Defendant’s testimony that the suit property had been excised from Land Parcel No. NGENDA/GATHAGE/222, which belonged to their deceased father and where she and her siblings had been raised. 4. According to the Defendant, her late father, taking into account that she was his only daughter and a person living with a disability, allocated the suit property to her during his lifetime to safeguard her against any potential disinheritance following his demise. 5. The Defendant further testified that all her siblings, including the Plaintiff, were bequeathed their respective portions of land from Land Parcel No. NGENDA/GATHAGE/491 which was also part of the subdivision of NGENDA/GATHAGE/222 and that the Plaintiff received 1.09 acres therefrom. 6. The Defendant testified that the Plaintiff had unlawfully occupied a small portion of the suit property. She stated that she initially permitted him to remain on the portion in question while he assisted in caring for their elderly parents but that, upon the cessation of that arrangement, he declined to vacate. It was her evidence that she had, throughout the period of his occupation, persistently sought to recover possession of the land, albeit unsuccessfully. 7. The Defendant further testified that the Plaintiff had subjected her to abusive and derogatory treatment on account of her disability, particularly whenever she attempted to have him vacate the portion he occupied. According to the Defendant, local administrative authorities including the chief of their area intervened at her request and directed the Plaintiff to cease the alleged abuse and vacate the suit property. 8. The Defendant maintained that the present proceedings constituted an attempt by the Plaintiff to use the Court process to legitimize what she regarded as an unlawful occupation of her land. 9. The Defendant produced the documents contained in her list of documents, which were admitted into evidence and marked as DEX 1-10. She urged the Court to dismiss the Plaintiff's claim and prayed for an order directing the Plaintiff's eviction from the suit property. 10. On cross-examination, the Defendant testified that the Plaintiff remained in occupation of a portion of the suit property against her wishes. She stated that although she obtained title to the suit property in 1983, she had not instituted legal proceedings to evict the Plaintiff therefrom. 11. The Defendant acknowledged being aware that the Plaintiff had constructed a permanent stone house on the portion he occupied. Notwithstanding this, she maintained that she had consistently sought to have the Plaintiff vacate the land but that her efforts had proved unsuccessful. She testified that she had on numerous occasions reported the matter to the area Chief and the police, while reiterating that she had never commenced court proceedings for his eviction. The Defendant further stated that the portion occupied by the Plaintiff was considerably smaller than the 100 feet by 100 feet claimed in the Originating Summons. 12. The Defendant maintained that she desired vacant possession of the suit property and continued to seek the Plaintiff's removal therefrom. 13. Upon re-examination, the Defendant reiterated that she wished the Plaintiff to vacate the suit property, stating that despite occupying a portion of her land, he had persistently insulted and mistreated her. She further confirmed that both their parents were deceased. That marked the close of the Defendant's case. 14. At the close of the hearing, the parties were directed to file their written submissions within 60 days. **Issues for Determination** 1. Having considered the pleadings, the evidence on record and the relevant authorities, the key issue that emerges for determination is: *whether the Plaintiff is entitled to adverse possession of a portion of the suit property.* **Analysis and Determination** 1. The law of adverse possession sits at the intersection of two competing principles: the sanctity of registered title and the imperative that rights be asserted within the time prescribed by law. While the law jealously guards proprietary rights, it does not permit them to remain indefinitely enforceable in the face of prolonged and unchallenged occupation. 2. The doctrine of adverse possession did not emerge to reward trespass, nor to punish ownership. It arose from the law's recognition that rights, however valid, cannot be preserved indefinitely in a state of dormancy while another openly occupies and treats land as his own. 3. In Kenya, the doctrine of adverse possession is rooted in Section 7 of the [Limitation of Actions Act](https://new.kenyalaw.org/akn/ke/act/1968/21), which prohibits the recovery of land after twelve years from the date the right of action accrued as follows: ***“An action may not be brought by any person to recover 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.”*** 1. The statute proceeds on the premise that rights in land, though protected by registration, are not immune from the consequences of prolonged inaction. Where a proprietor fails, for the statutory period, to assert his or her right to recover land from a person in possession, the law intervenes not to reward occupation *simpliciter*, but to attach legal consequences to the neglect of the right of action. 2. The statutory foundation of the doctrine of adverse possession is further found in sections 13, 17 and 38 of the [Limitation of Actions Act](https://new.kenyalaw.org/akn/ke/act/1968/21), which prescribe the legal consequences that follow upon the lapse of that period. Read together, those provisions establish a coherent scheme. Time begins to run when a right of action accrues, the proprietor's right to recover the land is extinguished upon the expiry of the limitation period, and the person in possession may thereafter seek an order vesting title in himself. 3. The consequence is that a claim for adverse possession does not arise merely from long occupation. The claimant must demonstrate possession that is actual, open, exclusive, continuous and adverse to the title of the registered proprietor for the statutory period. The burden of establishing those elements rests upon the person asserting prescriptive rights. 4. Over time, the courts have given content to those statutory requirements, identifying the characteristics of possession capable of maturing into title by operation of law. 5. The Court of Appeal in ***Sisto Wambugu v Kamau Njuguna* [1983] eKLR** made it clear that the inquiry on adverse possession is not confined to the mere passage of years. The decisive question is whether the registered proprietor was dispossessed of the land, or discontinued possession thereof, while another remained in occupation in a manner inconsistent with the proprietor's title and without effective interruption for the statutory period. 6. Put differently, the law presumes that possession follows title unless displaced by clear and unequivocal acts of dispossession. It is only where the registered owner is shown to have been kept out, or to have abandoned possession, and another has stepped into his place openly and as of right, that time begins to run against the title holder. 7. The nature of that occupation was considered by Kuloba J (*as he then was*) in **Gabriel Mbui v Mukindia Maranya [1993] eKLR**, where the learned Judge observed that: ***“It is well-know on in our law, that the adverse characters of the intruder’s possession of another’s land must be proved as a clear fact, and cannot be assumed as a matter of law from mere exclusive possession, no matter how long it is continued”*** 1. In essence, the claimant must demonstrate clear facts showing an intention to hold the land adversely and under a claim of right. Long occupation, without more, does not suffice. 2. That burden was reaffirmed by the Court of Appeal in **Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR**, where the Court observed: ***“…did the appellants acquire ownership as against the registered owner openly without force or stealth, or under the licence or knowledge of the owner and have they shown continuity and non-interruption of that process? The onus of proving all that remains on the appellants and it is not for the respondent to prove, as submitted, that there was no adverse possession or that if there was any, it was extinguished.”*** 1. The inquiry, therefore, is not whether the registered owner has disproved adverse possession, but whether the claimant has affirmatively established it. The burden remains on the person asserting title by prescription. 2. It follows that a claim for adverse possession cannot succeed upon inference, conjecture, or the mere lapse of time. The claimant must place before the Court cogent evidence demonstrating actual, open, exclusive, and uninterrupted possession of the land for the statutory period, exercised as of right and in a manner inconsistent with the title of the registered proprietor. 3. The evidence in this case is largely not in dispute as to the fact of occupation. The Plaintiff has remained in possession of a defined portion of the suit property since the 1980s, a position that the Defendant does not seriously contest. Indeed, both parties are agreed that the Plaintiff constructed a permanent stone house upon the land and has continued to reside thereon to date. 4. The controversy, therefore, does not lie in whether the Plaintiff is on the land, but in what legal character that occupation bears. The Defendant maintains that the Plaintiff’s entry and continued presence were by permission, initially granted within a family arrangement, and later resisted once that indulgence was withdrawn. The Plaintiff, on the other hand, asserts that his occupation has at all times been adverse, uninterrupted, and hostile to the Defendant’s title. 5. Where entry is alleged to have been permissive, the law is settled that time does not begin to run in favour of a claimant until there is a clear and unequivocal change in the character of possession from permissive occupation to adverse occupation. Possession that is referable to consent, licence, or family indulgence remains incapable of founding a claim for prescription unless and until it is shown that such consent was determined, and that the claimant thereafter asserted rights inconsistent with those of the registered proprietor. 6. In ***Mtana Lewa vs Kahindi Ngala Mwagandi* [2015] eKLR** the Court of Appeal stated: ***“The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence 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. In essence, where occupation is referable to licence or permission, it cannot, however long it endures, mature into adverse possession unless and until that permission is clearly brought to an end and the occupier thereafter holds the land in defiance of the registered proprietor’s title. 2. It is not in dispute that the parties were born on the original family land, that is Land Parcel No. NGENDA/GATHAGE/222, from which the suit property was later excised. It is further common ground that in 1983 the Defendant was registered as proprietor of the suit property following an *inter vivos* distribution by their late father. The Plaintiff, for his part, contends that notwithstanding that registration, he remained in occupation of a defined portion measuring 100 feet by 100 feet, which he asserts he has occupied openly, continuously, and without interruption since the 1980s for a period exceeding twelve years. 3. On the evidence, the Plaintiff’s occupation was open and continuous. He has remained in occupation of a defined portion of the suit property since the 1980s and constructed a permanent stone house thereon. The Defendant does not deny his physical presence; she contests its legal character. 4. The Court is therefore left with a prolonged occupation following the Defendant’s registration in 1983, coupled with competing assertions as to whether that occupation remained permissive or became adverse. 5. The Defendant relied on reports made to the area Chief and other administrative efforts aimed at securing the Plaintiff’s removal as evidence of interruption. Those steps, however, are not, in law, sufficient to arrest the running of time or to displace possession. They amount to objection and assertion of ownership, but fall short of dispossession, re-entry, or the institution of proceedings for recovery of land. 6. This position has been firmly settled by the Court of Appeal in **Benson Mukuwa Wachira v Assumption Sisters of Nairobi Registered Trustees [2016] eKLR**, affirming Amos Weru Murigu v Marata Wangari Kambi & Another (HCCC No. 33 of 2002 (OS)), where the Court held: ***“...as regards assertion of title, it is not enough for a proprietor of land to merely write to the trespasser (to vacate). A letter by the proprietor, even if it be through an advocate or the chief of the area does not amount to assertion of title in law and cannot therefore interrupt the passage of time for the purpose of computing the period of adverse possession. For there to be interruption, the proprietor must evict or eject the trespasser but because eviction is not always possible without breach of peace, institution of suit against a trespasser does interrupt and stop the time form running.”*** 1. It follows that the Defendant's reliance on reports made to the Chief and related informal efforts, absent any act of re-entry, eviction, or the institution of legal proceedings, did not interrupt the Plaintiff's occupation or arrest the running of time for purposes of the Limitation of Actions Act. 2. Consequently, the Plaintiff's occupation remained continuous and was not legally interrupted by any act capable of constituting an effective assertion of title. 3. However, continuity of occupation is not itself determinative of a claim for adverse possession. The law requires more than prolonged residence upon another's land. The claimant must establish, through clear and cogent evidence, that the possession relied upon was throughout the statutory period open, exclusive, non-permissive, and adverse to the title of the registered proprietor. 4. On the evidence before the Court, that burden has not been discharged. While the Plaintiff has demonstrated long occupation of a portion of the suit property, including the construction of a permanent dwelling and residence thereon for more than twelve years, he has not established that his occupation, which commenced when the parties resided as siblings on Land Parcel No. NGENDA/GATHAGE/222 owned by their father, subsequently assumed a character adverse to and inconsistent with the Defendant's title following the subdivision of that parcel and the registration of the suit property in the Defendant's name in 1983. 5. The Plaintiff's case establishes occupation but not its juridical character. The evidence does not disclose with sufficient clarity when, if at all, the Plaintiff's continued presence on the land ceased to be attributable to the parties' familial relationship and became possession asserted in denial of the Defendant's proprietary rights. 6. That distinction is critical. Occupation that remains explicable by permission, licence, acquiescence, or familial accommodation cannot found a claim for adverse possession. Time begins to run only when possession becomes open, exclusive, and unequivocally inconsistent with the title of the registered proprietor. See **Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR**; ***Kuria Kiarie & 2 others v Sammy Magera* [2018] eKLR**. 7. In the absence of evidence demonstrating that transition, the Plaintiff has only proved long occupation of the land. That fact, standing alone, is insufficient. Adverse possession is not measured merely by the passage of time, but by possession that has displaced the rights of the registered proprietor and remained adverse for the statutory period. 8. In view of the foregoing, the Court is not persuaded that the Plaintiff’s occupation, however long and visible, acquired the settled legal quality of adverse possession. 9. Accordingly, the Originating Summons dated 15th June 2022 is hereby dismissed. Given the nature of the dispute, which arises within a family context the Court considers it appropriate that each party bears its own costs. It is so Ordered. **Dated, Signed and Delivered, virtually at Thika this 29th day of June 2026** …………………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** Mr. Karuga Wandai for the Plaintiff Mr. Ochieng for Ms. Kuria for the Defendant Court Assistant : Hinga