Njoka v Irubia & 4 others (Civil Appeal 26 of 2019) [2026] KECA 1469 (KLR) (24 July 2026) (Judgment)

Njoka v Irubia & 4 others (Civil Appeal 26 of 2019) [2026] KECA 1469 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1469 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal 26 of 2019 W Karanja, S ole Kantai & A Ali-Aroni, JJA July 24, 2026 Between Jason Gitari Njoka Appellant and Francis Gacici Irubia 1st Respondent Eileen Kagendo Mbaka 2nd Respondent Timothy Muriuki Mutegi 3rd Respondent Fredrick Mbaka M’Abores 4th Respondent Ernest Murithi Gacici 5th Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court at Chuka (Njoroge, J.) delivered on 13th December 2018 in ELC Case No. 140 of 2017) Judgment 1.The appellant filed suit against the respondents in the Environment and Land Court (ELC) being Case No. 140 of 2017, by way of an Originating Summons (O.S.), (formerly Meru High Court Civil Suit No. 23 of 2011 (O.S.)), on 7th March 2011, and which O.S. was later amended on 17th May 2017, claiming seven A (7) acres of the suit properties known as Mugumoni/Rubate 757, 758, 759 and 760, by way of adverse possession. 2.The appellant’s case is that he has been in occupation of about seven (7) acres of Magumoni/Rubate/38, which was subdivided and resulted in Mugumoni Rubate 713 & 714. That Mugumoni Rubate 714 was later subdivided into Mugumoni/Rubate 757-760. He claims further that he has extensively developed the seven (7) acres by planting various trees and putting up two (2) semi-permanent houses. He also contends that his occupation has been open, continuous, and uninterrupted, and that the 1st respondent has taken no steps to evict him. 3.On the other hand, the 1st respondent, Francis Gacici Irubia’s case is that he and the appellant’s father, Njoka M'Ithara (deceased), are sons of M’Irubi M’Imwari (deceased), who owned several pieces of land, including land in Nkwego, where the suit property emanated from being an offshoot of its subdivision. Both the 1st respondent and his brother farmed on the original land. Later, as a result of a disagreement between the two brothers, the property was subdivided with the clan's assistance. The 1st respondent’s portion was registered as Magumoni/Rubate/38, and the appellant’s father’s portion was registered as Magumoni/Rubate/272. 4.After the division between the brothers, the 1st respondent subdivided his land (Magumoni/Rubate/38) among his children and sold some portions to third parties, while the appellant’s father subdivided his own portion, giving the appellant Magumoni/Rubate/1114, which the appellant is said to have sold and bought land elsewhere. 5.The 1st respondent further contends that, thereafter, around 1998, the appellant forcibly occupied a portion of Magumoni/Rubate/760. He explicitly denied the appellant’s claim of possessing seven (7) acres since 1975, asserting that the appellant was attempting to grab land that was not rightfully his. 6.The 2nd to the 5th respondents, in their respective responses to the appellant’s claim on their properties, denied the appellant’s claim of owning seven (7) acres of the suit properties. They assert in unison that he occupied only a small portion of Magumoni/Rubate/760. They further claim that the appellant was violent and had destroyed their crops, leading to Criminal Case No. 181 of 2010 and Criminal Court Case No. 993 of 2010, where he was convicted. 7.At the hearing before the trial court, the case proceeded by way of viva voce evidence. The appellant testified as PW1. In his testimony, he traced the dispute to the larger property in NKwego. He claimed that the 1st respondent registered the land in his own name while the appellant’s father was away working in Isiolo, and though his father had paid the adjudication fees. He contended that the 1st respondent took advantage of his father’s absence to secure the title in his name. His father allowed the 1st respondent to occupy half of the land. 8.He stated further that over the years, the 1st respondent subdivided the land multiple times, selling portions thereof. The situation escalated around the year 2000, when the 1st respondent subdivided L.R. No. Magumoni/Rubate/714, the specific portion the appellant occupied, into five new parcels, which were transferred to the 2nd respondent (Parcel No. 757); to the 3rd respondent (Parcel No. 758); to the 4th respondent (Parcel No. 759); to the 5th respondent (Parcel No. 760); and the 1st respondent retained one (Parcel No. 761). 9.He contended that he remained unaware of these subdivisions and transfers until he was sued by the 5th respondent in Chuka Civil Case No. 64 of 2005. He claimed that because he had occupied these specific subdivisions for a period exceeding twelve (12) years and had extensively developed the property, he had acquired title by operation of law under the Limitation of Actions Act. He sought cancellation of the registration of title in the names of the current proprietors and sought instead to be registered as the sole owner of the suit properties. 10.During cross-examination, he was unable to support the claim that the 1st respondent illegally took over his father’s property, though he maintained that he moved onto the land in 1974. He also claimed the respondents have never resided on or cultivated the land since its original form. He admitted to being jailed for four months for malicious damage after cutting down trees on land, but denied that an eviction order was ever issued. 11.PW2, George Mutegi Nahashon, testified in support of the appellant’s assertion that he had occupied the suit property since 1974, when he was about 15 years old. He claimed that the respondents have never lived on the suit property. 12.PW3, Lydia Ciamuiru Njoka, the appellant’s stepmother, claimed that the appellant stays on a piece of land that belonged to her late husband, but did not know the title number of the same. She further stated that she was aware of the differences her late husband had with the 1st respondent regarding the suit property, and that the 1st respondent had subdivided the suit property and shared the same out. She claimed further that her stepson occupied a portion of the suit properties, having been shown where to settle by her late husband. 13.The 1st respondent testified as DW1 and told the court that he was the original registered owner of the suit property, which he subsequently subdivided and distributed among several individuals, including his son Ernest Muriithi Gacici, his daughter Joselyn Muthoni, other relatives and purchasers. He confirmed that the appellant was his nephew. 14.He denied claims that he used his brother's money to register the land in his own name, noting that his brother had received his own portion of the original land that was registered as L.R. Magumoni/Rubate/272. He maintained that he had cultivated the suit property for many years and that the appellant only moved onto the property around the year 2000, contradicting the appellant’s claim of a 21-year occupation. Regarding the appellant’s imprisonment, the 1st respondent stated that he was not involved in the case, noting that the complaint was lodged by the 2nd respondent after the appellant destroyed the boundary, removed beacons, and cut down his trees and his portion. 15.DW2, the 4th respondent, testified that he had the authority to speak on behalf of the 3rd respondent and the 5th respondent. He stated that the appellant had never occupied the land parcel Magumoni/Rubate/749, although he had attempted to enter it. He testified further that the appellant cut his fence, destroyed the boundary, and was charged, prosecuted, and convicted in Criminal Case 93 of 2010 for encroaching on the 5th respondent’s land, leading to a civil suit and the involvement of the police. The appellant was subsequently evicted from Parcel No. 760. He produced the eviction order as Exhibit DW2 (2). 16.DW3, the 2nd respondent, testified that she bought Parcel No. 757 after undertaking due diligence and following due processes in purchasing the same, and was duly registered as the owner in 2000. She took possession and cultivated when her crops were set on fire, by the appellant, who was charged for trespass, malicious damage, and setting fire to crops, resulting in a two-year jail sentence. She produced a copy of the judgment convicting the appellant. 17.In its judgment delivered on 13th December 2018 the court held that the appellant had failed to prove his claim of ownership of the suit property and/or its subdivisions (Parcel Nos. 757-761) through the doctrine of adverse possession. The learned Judge held that the evidence presented by the appellant and his witnesses was a "veritable litany of contradictions and inconsistencies". In the end, the appellant’s case was dismissed, and he was ordered to vacate the suit property within three months of the judgment being delivered, failing which he was to be evicted. 18.Aggrieved by the judgment, the appellant appealed to this Court and raised fourteen (14) grounds of appeal in his undated memorandum of appeal. We found the 14 grounds repetitive and have condensed them into six (6) as follows: the learned Judge erred by holding that the appellant had not acquired L.R. No. Mugumoni/Rubate/757, 758, 759, 760, and 761 by way of adverse possession; by failing to find that the 1st respondent, the original owner of suit property which the subdivisions emanate from, had never occupied or made use of the said parcels; by issuing eviction orders against the appellant when none of the respondents had pleaded or prayed for the same; holding that Chuka PMCC No.64 of 2005 was finalized when the judgment and decree had been set aside and the matter stayed pending the hearing and determination of the suit subject of the judgement; by believing the defence evidence when it had many shortcomings; failing to award the appellant at least 0.25 acres out of the suit property when the respondent admitted that the appellant and his family were in occupation of that size of land. 19.The hearing of the appeal was by way of written submissions. Learned counsel for the appellant filed submissions dated 19th August 2024, and contends that the appellant acquired the suit property by way of adverse possession, having occupied and cultivated the same openly and uninterruptedly since 1974. In support of this assertion, counsel referred to James Obande Wasui vs. Jeremiah Ochwada Musumba [2002] KEHC 1178 (KLR), where the court held that prescriptive rights run with the land regardless of changes in proprietorship and that if twelve years of possession are completed prior to subdivision, the title holders cannot shake off those rights. 20.Counsel argues further that during adjudication, the land was originally owned by the 1st respondent on behalf of the appellant's father, who was serving as an administration police officer in Somalia at the time. Despite the 1st respondent being the registered proprietor, the appellant remained in full control of and use of the land, eventually constructing a home and establishing a family there. 21.Counsel urged further that the court erred by failing to recognise the appellant’s overriding interest under the Land Registration Act, asserting that subsequent sub-divisions and transfers of the sub-divided portions to the other respondents did not extinguish his prescriptive rights, also citing Mwangi Githu vs. Livingstone Ndeete [1980] KECA 35 (KLR), where this Court held that a change of ownership does not interrupt adverse possession. Furthermore, counsel claims that the trial court wrongly concluded that the appellant had been evicted. He maintains that the 2005 eviction order was vacated and the suit stayed, meaning the appellant’s occupation remained continuous. In support of his argument, counsel relied on Public Trustee vs. Wanduru Ndegwa [1984] KECA 72 (KLR), in which this Court held that continuous, uninterrupted, and exclusive possession for 12 years confers an indefeasible title. 22.Counsel also highlights the evidence of long-term occupation, evidence from mature fruit trees and a homestead, which were reportedly noted during a visit to the scene. Further, counsel argues that the trial Judge exceeded his jurisdiction by granting eviction orders that the respondents had not specifically prayed for in their pleadings. Ultimately, the appellant seeks to have the appeal allowed, arguing that he met the 12-year legal threshold for adverse possession and, at the very least, should have been awarded the 0.25-acre portion containing his homestead, which the respondents admitted he occupied. 23.Learned counsel for the 1st, 3rd, 4th and 5th respondents filed submissions and a list of authorities both dated 27th August 2024. On his part, counsel argues that the appeal is meritless and should be dismissed because the appellant failed to prove the necessary requirements for adverse possession. Counsel contends that the appellant’s entry onto the land was characterised by violence, hit-and-run tactics, and criminal activities rather than peaceful, continuous, and uninterrupted occupation. Counsel highlights that the appellant was frequently resisted through police reports, criminal charges for malicious damage and trespass, and, specifically, in Chuka Civil Case No. 64 of 2005, in which an eviction order was issued. 24.Counsel asserts further that the appellant's evidence was contradictory and failed to specifically identify the exact parcels he allegedly occupied and the actual date of the alleged occupation. For instance, some of the disputed parcels did not even exist in 1974, the year the appellant claimed his occupation began. Further counsel criticised the credibility of the appellant’s witnesses, describing them as rude, confused, and unable to identify the land in dispute during cross- examination. 25.While the appellant filed for adverse possession, counsel argues that during the hearing, the appellant spent time discussing historical family land disputes and adjudication processes, which are irrelevant to an adverse possession claim. In support of his contention counsel relied on Kimeu vs. Syina [1991] KLR 421, where the court held that in an adverse possession claim, the plaintiff was duty bound to adduce (evidence) inter alia that he had been in possession of the suit premises and that his occupation was exclusive, adverse to the registered owner’s right, and that had been continuous and uninterrupted or unchallenged for a period in excess of 12 years since possession commenced. 26.Counsel submits that adverse possession must be nec vi, nec clam, nec precario (without force, secrecy, or permission), and urges that the appellant’s use of force and subsequent legal suits, including the eviction order, disqualify his claim under the Limitation of Actions Act. Counsel contends further that the appellant, having been previously arrested and jailed for trespass and malicious damage on the disputed parcels, negates any claim of "peaceful" possession. Ultimately, counsel sought dismissal of the appeal with costs, maintaining that the trial court correctly found insufficient probative evidence to support the appellant's case. In support, he cited Pavey & 2 Others vs. Njoroge & Another (Civil Appeal 217 of 2005) [2011] KECA 342 (KLR), where this Court held:“This Court had occasion to consider the issue of interruption of possession in cases of adverse possession in the case of Kirutu v Kabura, C.A. No.20 of 1993 (unreported), where the Court observed:‘Time which has begun to run under the Act is stopped either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land. The old rule was that a mere formal entry was sufficient to vest possession in the true owner and to prevent time from running against him … He must either make a peaceable and effective entry or sue for the recovery of the land. Again in the case of Githu v Ndeete [1984] KLR 776 at page 780 this Court held that time ceases to run when the owner asserts his right by taking legal proceedings or by an effective entry into the land or when his right is admitted by the adverse possessor’.” 27.Learned counsel for the 2nd respondent on his part filed submissions dated 10th September 2024, and argues that the appellant’s claim of occupying the land since 1974 is factually impossible because the specific suit properties did not exist then; they were only created later through the subdivision of an original parcel, Mugumoni/Rubate/38. Furthermore, the appellant and his witnesses provided contradictory testimony, failing to identify the exact parcels or dates of occupation. 28.Counsel urges further that the respondents are the rightful, registered owners who acquired their interests through purchase or gifts following the subdivision. He submits that evidence was presented that the appellant's presence on the land was characterized by forceful entry and violence rather than peaceful, uninterrupted occupation. Specifically, the appellant had been prosecuted for malicious damage to her property in 2007 and was previously evicted from other portions of the suit property following a 2005 civil case. Counsel asserts that these interruptions and the use of force disqualify the appellant's claim under the Limitation of Actions Act, which requires 12 years of continuous, non-forceful possession. In support, counsel relies on Lewa vs. Mwagandi (Civil Appeal 56 of 2014) [2015] KECA 532 (KLR). 29.In addressing the appellant's arguments, counsel emphasises that submissions and cited authorities do not constitute evidence. He relies on Ngang’a & Another vs. Owiti & Another [2008] 1 KLR (EP) 749 [1994] KEHC 133 (KLR), to argue that a judgment must be based solely on facts and law. Counsel also relies on Muchami Mugeni vs. Elizabeth Wanjugu Mungara & Another Civil Appeal No. 141 of 1998, where the court found the practice of making awards on the basis of the submissions rather than the evidence deplorable. 30.He affirms that the trial court properly evaluated the evidence, including a site visit that confirmed the appellant only occupied a small portion of the land (approximately 0.25 acres) through trespass and force and the finding that the appellant failed to discharge his legal burden of proof to establish the essential elements of adverse possession. Counsel urged that the appeal, being unmerited, should be dismissed with costs. 31.This being a first appeal, this Court is obliged to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions, bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify. In Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, this Court held that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it neither saw nor heard the witnesses. 32.Having considered the pleadings, evidence, submissions, case law cited and the law, we find that the appeal turns on only one issue: whether the appellant placed evidence in support of his claim of adverse possession of the Parcel Nos. Mugumoni/ Rubate/757-761 against the respondents. 33.It is trite law that he who alleges must prove, in this instance, the burden to prove the claim lay squarely upon the appellant to establish his claim on a balance of probabilities. On the burden of proof, the learned Judge held as follows:“He who alleges must prove a fact that is the law in S. 107 of the evidence Act. The plaintiff has alleged adverse possession but he has totally failed to prove the same on any of the four Parcels Magumoni/ Rubate/ 757,758, 759, and 760. For this failure to adduce evidence to proof adverse possession, within the meaning of S. 7 of limitation of Actions Act, Cap 22 that is to say continuous un interrupted, and peaceful use of those parcels of land for period exceeding 12 years, then this action must fail. No such evidence of adverse possession has been led.”Similarly, in Macharia vs. Ndwiga & Another (Civil Appeal 297 of 2015) [2017] KECA 290 (KLR), this Court reiterated that the burden of proof in civil matters rests upon the party who asserts a fact, and failure to discharge that burden must result in dismissal. 34.The record reveals that the appellant could not clearly demonstrate the specific portion he occupied, the exact acreage occupied, and whether such occupation related to one parcel or all as pleaded. The appellant’s evidence was uncertain and inconsistent as to whether he occupied all parcels, belonging to the various respondents or only a portion of one parcel. The respondents, on the other hand, maintained that the appellant forcefully entered a small portion of Parcel No. Mugumoni/Rubate 760, and the rest of the suit properties were in use by the respective registered proprietors. In Kweyu vs. Omuto (Civil Appeal 8 of 1990) [1990] KECA 63 (KLR), this Court held that the person claiming adverse possession must prove factual possession and the intention to possess (animus possidendi), and that mere use of land is not enough. 35.Mere assertion of long-time, uninterrupted and peaceful occupation without cogent evidence is insufficient. The claimant must provide evidence of actual and peaceful possession that is exclusive and adverse to the title of the registered owner of the land in dispute, as stated in Sisto Wambugu vs. Kamau Njuguna [1983] KECA 69 (KLR), where this Court held that adverse possession contemplates dispossession of the true owner and the occupation must be inconsistent with the owner’s enjoyment of the land. From the record, we are not satisfied that the appellant proved occupation of the suit properties for twelve years. 36.Time is a fundamental element in a claim of adverse possession. It is not enough to say that one has lived on the land in dispute “for long”. One must demonstrate with reasonable certainty when possession became adverse to the registered owner, in order for the court to ascertain when time starts to run. The appellant claims that he entered the suit property in 1974, yet he did not present evidence to contradict the respondents' testimony that he entered in 2000 or thereabouts. Without proof of the date of entry, the Court cannot compute the statutory period of twelve years required under section 7 of the Limitation of Actions Act. In M’Riria & 5 Others vs. Muthomi [2025] KECA 951 (KLR), this Court held that time begins to run when the true owner is dispossessed or has discontinued his possession, and mere change of ownership does not interrupt time. However, in the present case, we find that the appellant’s evidence is speculative, contradictory and unsupported by documentary or reliable witness testimony. 37.Further, the appellant’s testimony was undermined by evidence of disputes, criminal proceedings, and lawsuits, suggesting a contested occupation rather than a peaceful and consistent occupation. In Chevron (K) Ltd vs. Harrison Charo Wa Shutu [2016] KECA 248 (KLR), this Court held that:“At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and section 38 of the Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land. Therefore the critical period for the determination whether possession was adverse is 12 years and the burden is on the person claiming to be entitled to the land by adverse possession to prove, not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land, that the adverse possessor has done acts on the land which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it.” 38.The criminal proceedings, civil suits, eviction orders and resistance by the registered proprietors are inconsistent with uninterrupted occupation. It cannot be gainsaid that adverse possession requires continuity. Once possession is interrupted by the owner's assertion of rights, time ceases to run, as held in M’Riria & 5 Others vs Muthomi [2025] KECA 951 (KLR). In the present case, the evidence of disputes, prosecutions and attempts at eviction demonstrates that the appellant’s occupation was not peaceful nor uninterrupted. 39.In the end, we agree with the trial court that the appellant failed to prove the necessary ingredients of adverse possession in that the appellant failed to demonstrate occupation of the suit premises or subdivisions thereof for a period of more than 12 years, save for a small portion of Parcel 760, he forcibly occupied but not peacefully, as there were several interruptions, including suits leading to his conviction and an order for eviction. 40.This appeal is therefore devoid of merit. Accordingly, it is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NYERI THIS 24TH DAY OF JULY, 2026.W. KARANJA.........................................JUDGE OF APPEALS. ole KANTAI..........................................JUDGE OF APPEAL ALI-ARONI..........................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.