https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3604

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAKURU ELC NO. E005 OF 2020 (O.S)** **JOSEPH KIMANI KARIRO………………………………………….PLAINTIFF** **VERSUS** **RUTH NJERI MUIRURI** **SIMON NJIHIA MUIRURI** (Suing as the Legal Representatives of the Estate of JOSEPH MUIRURI NDONYE- DECEASED)**………….…………………RESPONDENT** **JUDGMENT** 1. By the Originating Summons dated 11th November 2020 and Amended on the 19th July, 2024, the Plaintiff filed this suit against the Defendant seeking the following reliefs: 2. **THAT the applicant be declared the owner of ONE and HALF (1 ½) acres of land comprised in ELBURGON/TURI BLOCK 2/46 (NDENDERU) by adverse possession having occupied, cultivated and tilled the said ONE and HALF (1 ½) acres of land continuously and uninterrupted for over 38 years since 1982.** 3. **THAT this Honorable Court do direct that NAKURU LAND REGISTRAR rectify the Land Register accordingly and register JOSEPH KIMANI KARIRO as the sole proprietor ONE and HALF (1 ½) acres of land and that the Plaintiff herein issued with a Title Deed for the said ONE and HALF (1 ½) acres.** 4. **THAT the Nakuru Regional Land Surveyor to hive off the 1 ½ acre from the parcel of land ELBURGON/TURI BLOCK 2/46 (NDENDERU).** 5. **THAT the costs of this suit be borne by the Respondents.** 6. The Respondents opposed the summons vide a replying affidavit dated 18th June, 2020. On the 24th May 2022, the went with the consent of the parties, directed that this matter be consolidated with Nakuru CM ELC 103 of 2020 and that the ELC OS E005 of 2020 be the lead file. 7. The matter proceeded for hearing by way of viva voce evidence. **EVIDENCE OF THE PLAINTIFF** 1. PW1, Joseph Kimani Kariro adopted his witness statement dated 17th November, 2020 as his evidence in chief. He also produced his list of documents dated 11th November, 2020 and 6th June 2022 as exhibits in this case. 2. He testified that his parcel of land was No. Elburgon/Turi Block 2/45. He produced the title as Exhibit P1. 3. He further testified that he was neighbours with the Defendant who owned of No. 46 and 47. The title for Elburgon /Turi Block 2/46 as produced as MFI P2. He also produced a copy of green card for Elburgon/Turi Block 2/46 as Exhibit P3. 4. PW1 stated that he took occupation of Elburgon/Turi Block 2/46 in 1982. He added that the Defendant was issued with the title in 1989. 5. It was his testimony that there was a grave on the suit land and that he had cultivated and planted avocado, cyprus and blue gum trees. He produced photographs as Exhibit P4 (a)-(j) respectively. 6. He further stated that he was entitled to the title for the 1 ½ acres as he has been in occupation for forty (40) years and that the Defendant never evicted him. 7. Upon cross examination by Miss Daye, he stated that in 1982, the land had been sub-divided and he took possession of No. 45 which shared a common boundary with No. 46 for the Defendant. 8. He stated that the Defendant took occupation in 1982 and in1989, they were both issued with the titles. 9. He went on to state that in 1982, the surveyor showed them the portions to be occupied by each of them and beacons were placed thereon. He added that there was a fence which separated the two parcels. 10. PW1 admitted that he did not have the surveyors report for 1982. He stated that he had always known that the suit parcel belonged to him as had been shown by the surveyor. He added that he did not know that it belonged to the Defendant. 11. He further stated that the portion claimed by the Defendant was where the house and grave were located. He stated that in 2019, the Defendant claimed that the portion was his. 12. PW1 confirmed that the Defendant brought a surveyor in 2019 where it was discovered that the portion of land PW1 occupied belonged to the Defendant. 13. He went on to testify that they went to the chief to deliberate on the issue but admitted that the Defendant never told him to vacate. He confirmed that in Nakuru CM ELC No. 103 of 2020, the Defendants claimed that PW1 had encroached into his parcel on 28th August, 2020. 14. He admitted that after the said suit had been filed, he filed the Originating Summons on 23rd November, 2020. He denied having encroached on the Defendant’s parcel. 15. PW1 was referred to surveyor’s report dated 18th December, 2019 where he denied that the 1 ½ acres belonged to the Defendant. 16. PW1 clarified to the court that he became the owner of the parcel of land by virtue of being a member of Molo, Elburgon Ndenderu company. 17. He stated that in 1982 the land was subdivided and every member was supposed to get three (3) acres. He explained that some plots were in larger in acres. He admitted that he was in occupation of 6 acres since his parcel was a corner plot with a road adjacent to his parcel. 18. He stated that Plot no. 47 was a corner plot and No. 46 was located in between with the common boundary between 45 and 46. 19. Upon re-examination, he stated that in 2019, the Defendant claimed that he had encroached on his land. He stated that he took occupation in 1982. 20. That marked the close of the Plaintiff’s case. **EVIDENCE OF THE DEFENDANTS** 1. DW1, Ruth Njeri Muiruri testified that Joseph Muiruri Ndonye (deceased) was her husband who passed on in the year 2022. 2. It was his testimony that the deceased has filed the first suit CM ELC 103 of 2020 while the second suit was filed by the Plaintiff. 3. She produced her witness statement dated 16th June, 2020 which was adopted as her evidence in chief. She also produced documents in CM ELC 103 of 2020 which were marked as Exhibits D1-D4 respectively. 4. She also produced the deceased’s response (witness statement dated 16th June, 2020) as part of her evidence in chief. She testified that her late husband filed CMELC 103 of 2020 before this suit. 5. It was her testimony that the Plaintiff’s land was Elburgon/Turi/2/45, while hers were Nos. 46, and 47. She testified that her parcel No. 46 bordered the Plaintiff’s (45). 6. She went on to testify that when they were given land she went and found that the Plaintiff had settled on No. 46 which was her parcel. She added that the Plaintiff had put up a house. 7. She further testified that they realized the same when her late husband brought a surveyor to sub divide the land in 2019. She added that the deceased had wanted to give their children land. 8. DW1 testified that the surveyor found the Plaintiff had built on parcel No. 46. She added that the deceased reported the matter to the Chief where they all went with the Plaintiff’s family. 9. She further testified that the Plaintiff said that the surveyor ought to retain the previous beacons. She testified that the boundary was between 45 and 46 and that the Plaintiff had put up a house and fence. 10. She went on to state that she later realized that the beacon was fixed on her parcel 46. She added that they believed that the beacon had been put by the surveyor. DW1 admitted that she was not present when the beacon was fixed. 11. It was her testimony that she never heard the Plaintiff claiming that he was on their land but only discovered the same in court after the suits were filed. 12. She stated that they lived well with the Plaintiff’s family and that they still had a good relationship. It was her testimony that she did not know that the Plaintiff was on their parcel and only realized in 2019 when the surveyor came to the land. She stated that she saw the beacons. 13. Upon cross examination by Mrs. Gatheca, DW1 stated that her late husband was given Plot Nos. 46 and 47 in 1982 while the Plaintiff was given parcel 45. 14. She confirmed that they lived with the Plaintiff since 1982 where he had put up a house. She stated that the Plaintiff occupied 1 ½ acres of her land. 15. She further confirmed that the Plaintiff occupied the said portion since 1982. She admitted that they never reported the matter to the Land Registrar but only filed the present suits. 16. DW1 admitted that they had a good relationship with the Plaintiff who had raised his children in the suit parcel. She confirmed that the Plaintiff had utilized the land and even grew cyprus trees. 17. She stated that the surveyor visited the land in 2019 and confirmed that the Plaintiff was on 1½ acre of their land. She stated that the initial surveyor showed them parcel No 46 and 47 which they picked. 18. She admitted that each member was to get 6 acres which meant 2 shares of Ndenderu Farm. She added that Parcel 47 was 3 acres. 19. She stated that there was an additional ½ acre. She added that parcel 47 was 2.4360 Hectares. DW1 stated that she had no issue with parcel 46 which was 1.9 Hectares. 20. She admitted that the Plaintiff did not move the beacon. 21. Upon re-examination, she stated that Ndenderu farm gave each person 3 acres per share. She stated that her title parcel 46 was 1.9730 Hectares while the Plaintiff land 45 was 3 acres. 22. She stated that the Plaintiff encroached onto her land. 23. That marked the close of the Defendant’s case. 24. At the close of the oral testimonies, parties tendered final written submissions. **THE PLAINTIFF’S SUBMISSIONS** 1. Counsel for the Plaintiff filed his submissions dated 6th March, 2026 where she identified three issues for determination: 2. **Whether the Plaintiff has been in open, exclusive and continuous possession of the suit property.** 3. **Whether such possession has been adverse to the title of the registered owner for a period exceeding twelve years.** 4. **Whether the Plaintiff is entitled to be declared owner of 1 ½ acres of ELBURGON/TURI/BLOCK 2/46 (NDENDERU) by way of adverse possession.** 5. Counsel gave the legal basis for a claim on adverse possession where he relied on **Section 7, 13(1) and 38(1) of the Limitation of Actions Act**. He also cited the Court of Appeal case in **Kasuve V Mwaani Investments Ltd & 4 Others1 KLR184** and **Mtana Lewa V Kahindi Ngala Mwangandi [2015] eKLR.** 6. Counsel submitted that the Plaintiff has been in open, continuous and exclusive possession of the 1 ½ acres of the suit property since 1982 with the Respondent’s knowledge. 7. It was his submission that the Defendant admitted that she never used the 1 ½ acres comprised in the suit parcel. He added that the Defendant confirmed that the time she took possession on 1982, the Plaintiff was already in occupation. 8. She further submitted that the Defendant admitted that there has never been any boundary dispute reported to the Land Registrar challenging the Plaintiff’s occupation. He added that at the time of filing Nakuru CM ELC No. 103 of 2020, the Plaintiff was already in occupation for over 12 years. 9. Counsel submitted that the Defendant’s right to recover the said portion became statute barred under **Section 7 of the Limitation of Actions Act.** 10. In conclusion, she submitted that the Plaintiff satisfied all the requirements necessary for a claim of adverse possession. **THE DEFENDANT’S SUBMISSIONS** 1. Counsel for the Defendant filed the submissions dated 16th April, 2026 where she identified the following issues for determination: 2. **Whether the Plaintiff's possession was adverse to the Defendants' title.** 3. **Whether the adverse, open and notorious possession of the suit property should be to the knowledge of the actual or constructive knowledge of the registered proprietor(defendant)?** 4. **Whether the Defendants were dispossessed of the suit property.** 5. **Whether time for adverse possession accrued.** 6. **Whether the dispute herein is one of boundary rather than adverse possession** 7. On the first issue, she submitted that hat a key requirement for establishing adverse possession is *animus possidendi*-the clear, conscious intention to possess the property hostilely in denial of the true owner's title. 8. She argued that if a person occupied land under the mistaken belief that it was their own, they are technically acknowledging the title of the owner (even if they think they are that owner), rather than holding it adversely against someone else. 9. It was her submission that a person claiming adverse possession must know who the actual owner of the property is. She submitted that if the person is unaware of the true owner because they believe the land is their own, the requirement of hostile possession has not been met. 10. Counsel relied on the Supreme Court case in India of ***S.M. Karim V Mst. Bibi Sakina (1964***) and submitted that the present matter was a case where neighbors in land have lived under the belief that each was occupying their respective portions as shown by the surveyor in 1982. 11. She submitted that the first time the Plaintiff ever claimed adverse possession was in 2020 when he filed the instant Originating Summons. Counsel argued that the lack of intention to be an adverse possessor was a critical ingredient to prove adverse possession hence the claim cannot succeed in the circumstances. 12. She cited the case of ***Haro Yonda Juaie V Sadaka Dzengo Mbauro & another [2O141 eKLR*** and submitted that the Plaintiff’s claim was an afterthought intended to defeat the Respondents' title. She submitted that the Plaintiff has not proved the intention to dispossess the Respondent. 13. On the second issue, she submitted that for a party to claim adverse possession his occupation must be within the knowledge of the registered proprietor of the suit land. She cited the case of ***Titus Kigoro Munvi V Peter Mburu Kimani [2015] KECA 952 (KLR)*** and ***Kimani Ruchire V Swift Rutherfords & Co. Ltd. (1980) KLR 10.*** 14. She submitted that the Respondent obtained actual and constructive knowledge of adverse possession by the Plaintiff in the year 2019 when the surveyor came to the ground and found out that he had encroached his land. She added that computation of time should have started to to run from 2019 until when the Respondent filed a suit in 2020 to evict the Plaintiff from his land. 15. Going to the third issue, she submitted that the Plaintiff’s case was solely pegged on the allegation of continuous use of the suit parcel. She added that the Plaintiff failed to demonstrate the other ingredients of adverse possession such as hostility, *animus possidendi* and the actual and knowledge of his occupation by the Respondent. 16. She submitted that time only runs where possession is adverse and uninterrupted. She argued that the Plaintiff could not assert adverse rights over land he has been occupying knowing to be his. 17. It was her submission that from the facts of the case, the matter fell under the ambit of a boundary dispute as opposed to a claim for adverse possession. 18. On the fourth issue, it was her submission that Plaintiff testified that he occupied the disputed portion under the belief that it formed part of his land. 19. On the final issue, she submitted that the present case was that of a trespasser knowingly occupying another's land, but one of mutual mistake. She submitted that there was conscious dispossession or adverse intent. 20. In conclusion, she submitted that the present case did not meet the threshold for adverse possession as it was merely a case of mistaken boundary. **ANALYSIS AND DETERMINATION** 1. This court has considered the pleadings, evidence on record and submissions and the issues for determination are: 2. **Whether occupation and possession by the Plaintiff over the suit property constituted adverse possession.** 3. **Who should bear the costs of the suit.** 4. The doctrine of adverse possession is founded under **Section 7, 13, 37 and 38 of the Limitation of Actions Act**. Further, in order for one to succeed in the claim for adverse possession, a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Defendant was aware of such. **Section 7 of the Act** provides 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. Section 13 “(1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land…”** 1. In **Kasuve V Mwaani Investments Limited & 4 others 1 KLR184, the Court of Appeal** restated what a Plaintiff in a claim for Adverse Possession has to prove; **“In order to be entitled to land by Adverse Possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”.** 1. It is not in contention that the Plaintiff and Defendant by virtue of being members of Molo, Elburgon Ndenderu company were each issued Parcel No. 45 and 46, 47 respectively. 2. It was the Plaintiff’s case that in1982, the surveyor showed them their respective portions and beacons were put. He claimed that he has been in open and continuous occupation of 1 ½ acres of the Defendant’s parcel being Plot No. 46. 3. On cross-examination, the Plaintiff admitted that he never knew that the said portion belonged to the Defendants and only realized the same in 2019. 4. The Defendants on the other hand claimed that they have been living with the Plaintiff peacefully as neighbours. It was their case that it was only until the year 2019 when the deceased had visited the parcel with a surveyor to subdivide the property when they realized that the Plaintiff had settled on his parcel. 5. The 1st Defendant admitted that the Plaintiff lived in the 1 ½ acre of Plot No. 46 without their knowledge. DW1 also admitted that the Plaintiff never moved the beacons that had been placed by the surveyor in 1982. 6. In the case of ***Richard Wefwafwa Songoi V Ben Munyifwa Songoi [2020] KECA 942 (KLR)*** the court held as follows: **“A person who claims adverse possession must inter alia show:** **(a) on what date he came into possession.** **(b) what was the nature of his possession?** **(c) whether the fact of his possession was known to the other party.** **(d) for how long his possession has continued and** **(e) that the possession was open and undisturbed for the requisite 12 years.”** 1. In the instant case, from the Plaintiff’s testimony, it was not in contention that he was not aware that the 1 ½ acre he had been in occupation belonged to the Defendant. 2. It was also evident that the Defendant despite having the knowledge that the Plaintiff was in occupation of the suit parcel, did not know that the said portion being occupied by the Plaintiff formed part of his land. 3. It was a fact that both parties only realized this in 2019 when the Defendant had engaged the surveyor to conduct subdivision. It is not in contention that the report dated 18th December, 2019 confirmed that the Plaintiff had encroached onto the Defendant’s parcel. 4. From the evidence, it was as a result of the said encroachment by the Plaintiff that the Defendant filed Nakuru CM ELC 103 of 2020 claiming that the Plaintiff had trespassed onto his land 5. Interestingly, the Plaintiff thereafter filed the present suit claiming adverse possession. 6. In the case of ***Mtana*** ***Lewa Vs Kahindi Ngala Mwagandi [2015] KECA 532 (KLR),*** the court defined what entails adverse possession as follows: **“Adverse possession is essentially a situation where a person takes possession of land and 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, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. 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 incontinuity, in publicity and in extent to show that possession is adverse to the title owner.”** 1. It is this court’s view that from the Defendant’s evidence that he only discovered that the Plaintiff had occupied their portion in 2019, the same excluded the Plaintiff from claiming adverse possession. 2. It is my view that the knowledge of the Plaintiff’s occupation from 1982 until 2019 was purely based on the fact that the Defendant knew that the said portion belonged to the Plaintiff hence they lived peacefully. It was not until the survey was conducted when they realized that the Plaintiff had occupied their portion. 3. Notably, the Plaintiff also admitted that he was not aware that the 1 ½ portion he had occupied since 1982 belonged to the Defendant. It is not in contention that he also discovered the same in 2019. 4. It is this court’s view that this is a case of trespass and it is trite law that time in such a claim begins to run upon discovery which in this case was in 2019. 5. It is therefore my opinion that twelve (12) years were yet to elapse for the Plaintiff succeed in a claim of adverse possession. 6. In the circumstance, the Plaintiff’s occupation of the 1 ½ portion of the suit parcel did not constitute adverse possession. 7. The upshot of the foregoing is that the Plaintiff’s case is without merit and is hereby dismissed with costs to the Respondent. 8. The Defendant succeeds in MC ELC 103 of 2020 and I grant the following reliefs: - 9. **That an order of permanent injunction is hereby issued restraining the Plaintiff (Joseph Kimani Kariro ) his servants and/or employees or any other person claiming under him from encroaching and or interfering with beacons and boundary marks in respect of Land parcel known as Elburgon/Block 2/46 ( Ndenderu)** 10. **That the Plaintiff (Joseph Kimani Kariro) do vacate the portion measuring 1½ acres of ELBURGON/TURI BLOCK2/46 (NDENDERU) and the beacons and boundary marks be restored to the proper and rightful positions within Ninety (90) days from the date of this judgment in Default the Defendant do use lawful means to evict the Plaintiff.** 11. **That costs be borne by the Plaintiff**. **Judgment dated, signed and delivered virtually at Nakuru this 11th day of June 2026.** **L KOMINGOI** **JUDGE** **In presence of:-** Mrs. Gathecha for the Plaintiff No appearance for the Defendants Court Assistant : Derrick/ Irene