https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4337

Gitonga v Gitonga (Environment and Land Appeal E003 of 2023) [2026] KEELC 4337 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEELC 4337 (KLR) Republic of Kenya In the Environment and Land Court at Nanyuki Environment and Land Appeal E003 of 2023 LN Mbugua, J July 8, 2026 Between Jane Wairimu Gitonga Appellant and Peter Kimondo Gitonga Respondent (Being an appeal from the judgement of Hon Mararo (SPM) delivered at Nanyuki Law Courts on 18.7.2023 in CM ELC 158 OF 2018) Judgment 1.The suit before the trial court was instituted by the appellant vide an Originating Summons dated 21.7.2016 where she was claiming entitlement to the suit parcel Eusonyiro/Suguroi Blockv111/457 through the doctrine of adverse possession. She also filed a supporting affidavit where she stated that she is the widow of Gibson Gitonga Warugongo who died on 29.3.2003. She avers that it is her husband who bought the suit land. 2.She further deponed that at the time of the said purchase the said properties were being sold for and on behalf of one Dr. Kanyi by an outfit known as Nyeri Property Agencies through Lucy Mwai & Co. Advocates. That after the payment, the alleged agent instructed some informal survey to be carried out to hive off the five acres that her husband was meant to purchase from the original parcel 337 hitherto registered in the name of Dr. Kanyi. 3.That since 1995, herself together with her husband took possession, occupation and started the use of the same upon institution of the informal survey. That she fenced the land and has been farming wheat on the said parcel. However, recently due to ill health she has been using the land as a grazing ground. 4.That the subsequent owner of the land, one Peter Miaraho Muriuki never took possession of the land at any one time and she never had any issue until sometime in 2005 when he threatened to evict her and one Charles Mathenge Gitonga. She contends that she has not ceded possession and or occupation and continues to work on the said land despite the fact that there have been attempts to remove her fence from that land. 5.In opposition thereof, the respondent filed a Replying Affidavit dated 1.8.2016. He avers that he hails from the same village with the appellant who is also his aunt as she was married to Gibson Gitonga, an uncle to the respondent. He avers that he bought the suit land when it was vacant from one Peter Miaraho vide an agreement dated 7. 5.2013 and he was registered as the owner on 7.3.2014. 6.The respondent pleaded that the applicant vacated the suit land on 23.9.2005, that when he bought the suit land, he fenced it and has been in exclusive possession of the same. He avers that the parcel which the plaintiff and her husband were buying is parcel Euasonyiro Suguroi Block 111/572 where she has extensively developed. 7.At the trial , the appellant JANE WAIRIMU GITONGA testified as PW1. She avers that her husband told her that he bought the suit parcel but there was a balance of sh 50 000, that she has been living on the suit land since 1990s. She used to farm the suit land before her husband died in year 2003, she has livestock, but she actually stays on the adjacent land. She moved away from the suit land so that she can have peace as she suffers from hypertension. 8.In cross examination, Pw1 stated that she came to know the defendant after he sued her before the elders and the chief where she was asked to leave. She went on to identify the defendant as her nephew by marriage. She avers that she was confused as the process there was done hurriedly, that is why she signed the document. She was told that Miaraho had a title. She avers that she left the land, but her livestock is there. She contends that the defendant invaded the land and fenced the same and he started using it. 9.The case of respondent was advanced by two witnesses where whereby, Peter Kimondo Gitonga, the respondent testified as DW1. He relied on his Replying Affidavit as his evidence. He avers that he bought the land when it was vacant, that the appellant does not use the land as he is the one who uses the same. 10.In cross examination, Dw1 stated that he bought the suit land in year 2013, when there was nothing but grass. 11.DW2 is one Peter Miaraho Muriuki. He adopted his witness statement dated 3.11.2017 as his evidence. He avers that sometime in year 1993, he bought parcels 461 and 457 from Dr. Kanyi, and the land was vacant. That in year 2004, he found that the appellant had trespassed on a portion of his land 457, while one Charles Mathenge had trespassed on 461, so he asked them verbally to leave his land, but they did not do so. In year 2005, he found that the trespass was continuing. Upon telling Charles to leave, he became hostile and he issued threats. This prompted the respondent to report the matter to the assistant chief who summoned the trespassers. That the trespassers were asked to produce documents of ownership but they had none. A resolution was made and was reduced into writing whereby the trespassers were to leave the lands of the witness. Later when he went to check on his land, he found that the appellant had vacated. 12.DW2 avers that Charles Mathenge later became friendly and asked for more time to vacate the land. That Dw2 expressed his desire to sell the suit land and it is Charles who brought the buyer, the current respondent. That by the time he sold the suit land to the respondent after November 2012, the appellant was not in occupation of the suit land. 13.In cross examination, Dw2 stated that he sold the land to the respondent in year 2012, that no one was on the suit land as the appellant had vacated after the case at the chief’s place in year 2005. 14.In a judgment delivered on 18.7.2023, the court found that the appellant had not met the threshold of an adverse possessor of the suit property, thus her case was dismissed. 15.Aggrieved by the aforementioned decision, the appellant lodged the appeal herein, raising the following grounds in the Memorandum of Appeal dated 7.8.2023.1.The Learned Magistrate of the trial court erred in fact and in law in misdirecting himself on the facts of the plaintiff’s claim hence reaching he wrong conclusion of the case before him.2.The Learned Trial Magistrate erred in law and in fact in failing to appreciate and apply the principles of law on adverse possession.3.The Learned Trial Magistrate erred in fact and in law in failing to formulate the issue of trial, determine each of them and thereby misdirected himself on the matter to arrive to the wrong conclusion.” 16.The appellant therefore prays that the evidence be reviewed and appraised so as to set aside the judgment and then give appropriate orders. 17.The appeal before this court was heard by way of written submissions. The submissions of the appellant are dated 6.11.2024. She reiterates that the suit land was offered for sale to her husband in 1995 whereby the husband paid the deposit through the law firm of Lucy Mwai Advocates. That the land was surveyed and her 8 acres were marked out. That they fenced the land and settled on it. She contends that the respondent attempted to take possession in year 2014 but he found the fence of the appellant intact. 18.The appellant submits that it was the court’s determination that she conceded to having vacated the suit land in year 2005, however this was not her evidence or that of her witnesses and she terms it as a misdirection of the court. She is emphatic that the only intrusion to her land was the one made by the respondent in year 2014 which was not successful. In support of her case the appellant relies on the cases of Mwangi Githu Vs Living Stone Ndete (1980) eKLR and Benson Mukuwa Wachira V Assumption Sisters of Nairobi Registered Trustees (2016) eKLR Civil Appeal No. 121 of 2006. 19.The submissions of the respondent are dated 8.5.2026 where it is argued that the owner of the suit land, Dw2 asserted his claim over the suit land, whereby the appellant conceded to vacating the said land. Thus the appellant did not discharge the burden of proof in the case. In support of his arguments, the respondent relied on the cases of Kisumu Civ App No. 110 of 2016 Richard Wefwafwa Songoi V Ben Munyifwa Songoi (2020)eKLR, Kisumu Civil Appeal No 27 of 2013 Samuel Kihamba V Mary Mbaisi (2015) eKLR, Francis Gacharu Kariri V Peter Njoroge Mairu, Civil Appeal No. 293 of 2002 (UR), Kasuve Vs Mwaani Investments Ltd & 4 Others (2004) 1 KLR 184 and Mtana Lewa V Kahindi Ngala Mwagandi (2015)eKLR. 20.I have considered the record, the grounds of appeal as well as the rival submissions. The duty of the 1st appellate court was explained in the case of Selle and Another Versus Associated Motor Boat Company Ltd & Others [1968] Ea 123, where it was observed thus:-“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion. Though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial Judges findings of fact if it appears either that he has clearly failed in some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence on the case generally.” 21.The issue for consideration is whether there is sufficient material to warrant the setting aside of the trial court’s judgment. In Mtana Lewa –v- Kahindi Ngala Mwangandi- COA Malindi (2015) eKLR adverse possession was defined as follows;“Adverse Possession is essentially a situation where a person takes Possession of land, asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya 12 years.” 22.While in the case of Kiburio & 2 others v Kiburio & another (Environmental and Land Originating Summons 1292 of 2015) [2025] KEELC 589 (KLR) (13 February 2025) (Judgment) Neutral citation: [2025] KEELC 589 (KLR), the court stated that possession may be interrupted by;“any acknowledgement made by the person in possession, to any person claiming to be the rightful proprietor, that such claim is admitted or otherwise recognized”. 23.In her supporting affidavit, the appellant availed annexure “D” which is the letter of year 2005 in which she agreed to vacate the suit parcel. In her evidence, she stated that ;“I live next to the land but I lived on the land before the case happened. I suffer from hypertension and so I moved from the land so I can have peace”. 24.Then in cross examination, the appellant had stated that;“I brought Kimondo to court because Kimondo spoke to me badly yet it was my land. Kimondo is my nephew by marriage. He invaded my land and he fenced the land. Then he started using the land. I ask the court to help me so that they can tell me, surely can my husband have stolen an ID to compete his transaction.” 25.From the foregoing evidence of the appellant, it becomes apparent that appellan’s possession of the suit land was interrupted after she vacated the land when she was taken to the assistant chief. It matters not that she was unwell or that she did not know what she was signing, the bottom line is that there was interruption. And in her own admission, the land is used by the respondent who has fenced the same. If the appellant keeps livestock on the suit land as she claims, that is not exclusive possession as the respondent uses the suit land. The court has taken the step to extract the crucial part of the evidence of the appellant since she appears to blame the trial court in regard to alleged distortion of her testimony. 26.To this end, I find that the trial court arrived at a correct finding in holding that the appellant had vacated the land so as to have peace as she suffers from hypertension. In that regard, I find no reasons to disturb the judgment of the trial court. Thus this appeal is hereby dismissed with costs to the respondent. DATED, SIGNED AND DELIVERED AT NANYUKI THIS 8TH DAY OF JULY 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Nancy Mwangi – C/AM/s Ngari h/b for Mr. Nderi for appellantM/s Wachira h/b for Muchiri wa Gathoni for respondent