https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4190

Gathuri v Wambui alias Margery Wambui (Enviromental and Land Originating Summons E002 of 2025) [2026] KEELC 4190 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEELC 4190 (KLR) Republic of Kenya In the Environment and Land Court at Nanyuki Enviromental and Land Originating Summons E002 of 2025 LN Mbugua, J June 17, 2026 Between Josephine Wambui Gathuri Plaintiff and Mergery Wambui alias Margery Wambui Defendant Judgment 1.This suit was filed by way of an Originating Summons dated 13.2.2025 where the plaintiff is claiming parcel Laikipia/Kinamba Mithiga Block 1/605 measuring 3.763 hectares through the doctrine of adverse possession. The defendant opposes the suit vide her replying affidavit dated 22.3.2025 as well as a statement of defence and counterclaim of even dated. 2.During the trial, the plaintiff Josephine Wambui Gathuni testified as Pw1. She adopted her witness statement dated 30.6.2025 as her evidence. She also produced the documents in her list dated 30.6.2025 as her 4 exhibits. She avers that she settled on the suit land in 1986, she fenced the same and has occupied the said land without interruption to date. 3.In cross examination, Pw1 stated that she does not know the number of the suit parcel, she does not stay on the land in dispute and she has not built on the said land, but she is a neighbour to the said land. For the land she occupies, she went there in 1966 and this is where she has built her home. She however farms on the suit land which she has fenced and she started using this land in 1966, but corrected herself to indicate the year as 1986. She avers that she has never met the owner of that land, but there were brokers who wanted to sell the land. 4.Pw2 is one Samson Mwangi Njuguna, he adopted his witness statement as his evidence. He avers that he is a neighbor of the plaintiff whom he has known for 30 years. He avers that the suit property is adjacent to the land where the plaintiff stays and that she tills the suit land. 5.In cross examination, Pw2 stated that he has known pw1 for 40 years and that the latter has fenced the whole land. 6.Pw3 is one Nancy Nduta Mugure and she adopted her witness statement dated 16.7.2025 as her evidence. Her evidence is that she has known Pw1 for 20 years. She avers that Pw1 uses the suit land and even leased the same to her in year 2019. 7.On cross examination, Pw1 reiterated that she had leased the suit land from pw1 for 3 years. However, Pw1 has not built on that land. 8.Pw4 is one Saimon Gichuki and he adopted his witness statement dated 15.7.2025 as his evidence. He avers that he knows Pw1 as a neighboir who has used the suit land for a long time. 9.On cross examination, Pw4 reiterated that she is a neighbor and that pw1 is the one who uses the suit land. 10.Pw5 is Phylis Njoki Gathoni, she adopted her witness statement dated 16.7.2025 as her evidence. She identifies herself as a daughter of Pw1. She avers that she was raised at their ancestral land. Her mother is the one who has been using the suit land which she has fenced and has put a padlock. 11.On cross examination, Pw5 stated that their family is the one which utilizes the suit land which is adjacent to their family land, but no house has been put up on the said land. 12.Pw6 is one Fredrick Kariuki, a land surveyor. He produced his report dated 17.7.2025 as an exhibit. In cross examination, Pw6 stated that no structures are on the suit land, but there is cultivation of about 0.94 ha which he designates as part C. Then there is part B which is about 2.04 ha and it is rocky, bushy and has indigenous trees, then portion A is about 0.644 ha, and is rocky and bushy. 13.On defence side, the defendant Margaret Wambui testified as Dw1 and she adopted her witness statement dated 23.6.2025 as her evidence. Her case is that she is the owner of the suit land, having acquired a title on 26.8.1999. She avers that she stays in Thome in Laikipia, she bought the suit land from a cooperative society when the land was vacant, and she bestowed upon her brother one Isaiah Kamau the responsibility of checking the suit land of which, her brother has been leasing out the land to farmers in the neighbourhood. That she cultivated the land for three years but could not sustain the farming as she lives far off from the suit land. Her brother however fell sick from a stroke. 14.That in year 2018, she visited the land to harvest her maize, that is when she found that the crop had been harvested. She therefore decided to look for a caretaker in the neighbourhood and picked on the plaintiff. That it is out of this relationship that she allowed the plaintiff to cultivate part the land. Dw1 informed her brother that she had indeed allowed the plaintiff to use the land. 15.However in year 2024, DW1 visited the suit land with her brother and found that the land was fenced. So she went to plaintiffs home and found the son. On inquiring as to who had fenced the land, the son said it was her mother who did so to keep off game hunters. Dw1 later managed to get the plaintiff and she informed her that she was to stop using the land as the defendant wanted to sell the same using a land agent. That is when the plaintiff stated that she is the only one who could buy the land as she had been taking care of it without any payments. This prompted Dw1 to serve Pw1 with a notice to vacate the suit land and remove the fence. 16.In cross examination, Dw1 stated that she bought the suit land via balloting. Her engagement with the plaintiff was verbal in year 2018, that is when Dw1 told the plaintiff to farm and take care of the suit land. She cannot call her brother as a witness because he got a stroke and lost his memory. She avers that pw1 indeed wanted to buy the suit land from her, but was offering a low price and at the same time, she was chasing off the prospective buyers. 17.Dw2 is Peter Wangombe, the Assistant Chief of Kinamba area. He adopted his witness statement dated 23.6.2025 as his evidence. He is aware that the suit land is owned by an old woman who lives in Nanyuki and the same was leased out on seasonal basis. He avers that the suit land is within his jurisdiction. That due to insecurity in Njorua area and Laikipia at large, locals were advised to farm lands particularly the bushy ones which are hide out for criminals, but such locals were to vacate the land when the owners came. That in the case at hand, the plaintiff was allowed to cultivate a portion of the suit land by the defendant, while the later’s brother also leased out the land. 18.That the dispute arose when the defendant set out to sell the land which move was resisted by the plaintiff and the case was to be heard at the assistant commissioners office where he was summoned, but the plaintiff did not turn up. 19.In cross examination, Dw2 stated that he has been in Njorua area since 1989, but he has been an assistant chief for the last 14 years. That the administration encourages people to occupy empty land so as to clear bushes due to insecurity on the understanding that when owners of land turn up, the other person will vacate the land, but this was not the case in the instant matter. 20.Dw3 is John Muhari Wambugu, a surveyor. He adopted his witness statement dated 24.6.2025 as his evidence. He avers that he visited the suit land on 29.4.2025 on instructions of the defendant. He established that the cultivated portion of the suit land measures 0.998 ha. (2.47 acres) while the rest is covered in trees, that a portion of the land is fenced with barbed wire but the boundary demarcations are intact. 21.On cross examination, Dw3 stated that when he visited the land, he found it being used, but he did not know the user and it had a fence on one side. 22.The submissions of the plaintiff are dated 23.3.2026 where she has rehashed the evidence tendered herein. She argues that her use and occupation of the suit land has met the threshold in a claim of adverse possession of which her evidence was corroborated by her neighbours. She relies on the cases of; Kombe & Another V Mohammed & Another (Civil Appeal E042 of 2022) (2025) KECA 912 (KLR), Mwangi Githu V Livingstone Ndeete (1980) KECA 35 (KLR), Nesco Services Vs CM Construction (EA) Limited (2021) eKLR, Bernard Philip Mutiso Vs Tabitha Mutiso (2022)eKLR. 23.The submissions of the defendant are dated 16.4.2026 where she argues that the entry to the suit land by the plaintiff was with the permission of the defendant, adding that occupation commenced in year 2018. The defendant asserts that she has always been in constructive possession of the suit land, thus she was never dispossessed of the same. In support of her case, the defendant relies on the following cases; Titus Mutuku V Mwaani Investments Limited & 4 Others (2004) KECA 161 (KLR), Wilson Kazungu Katana & 101 others V Salim Abdalla Bakshwein & Another (2015)eKLR, Mtana Lewa V Kahindi Ngala Mwagadi (2016) KECA 544 (KLR), Haro Yonda Juaje V Sadaka Dzengo Mbauro & Another (2014) KEHC 6665 (KLR), Mombasa Teachers Co-operative Savings & Credit Society Limited V Robert Muhambi Katana & 15 Others (2018)eKLR, Sisto Wambugu V Kamau Njuguna (1983) KECA 69 (KLR) and Kuria Kiarie & 2 Others V Sammy Magera (2018)eKLR. 24.I have considered the pleadings, the evidence tendered herein and the rival submissions. The issues falling for determination are whether the plaintiff has met the criteria as an adverse possessor of the suit land or whether she should be restrained from trespassing upon the said land. The requirements for Adverse Possession in Kenya was set out in the case of Mbira –v- Gachuhi (2002) IEALR 137 as follows;“…….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….” 25.In the case of Mtana Lewa –v- Kahindi Ngala Mwangandi- COA MALINDI (2015) eKLR it was held that:“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.” 26.For one to success in a claim for adverse possession, he must prove the following elements:-He must have made physical entry and be in actual possession of the land for the statutory period, the entry and occupation must be with or maintained under some claim or colour of right or title, the occupation must be non-permissive, The occupation must evince unmistakable animus possidendi, that is occupation with the clear intention of excluding the owner and all other persons and; The acts of the adverse possessor must be inconsistent with the owner’s enjoyment of the soil for the purpose which he intended to use it. 27.The starting point relates to the physical entry. The plaintiff has pleaded ( in her supporting affidavit) that she settled on the suit land in 1986, an averment which she repeats in her witness statement that; “ I settled on the suit premises, land parcel no. Laikipia/Kinamba Mithiga Block1/605 in year 1986”. It however emerged during cross examination that the land she settled on was the one adjustment to the suit land. To this end, she stated that; “ I am a neighbour for the land in dispute. I do not stay on that land. I have not built on the disputed land. For the land which I occupy, I started staying on it in 1966….”. At some point during cross examination, Pw1 stated that; “ I have fenced the whole land , but I farm on 2 acres. I started using that land in 1966”, then she corrected herself after being shown her witness statement and stated that the use of the land commenced in 1986. 28.In light of the above evidence, it was of utmost important for the plaintiff to clarify the circumstances surrounding her physical entry unto the suit land in 1986, 20 years after settling on her own land in 1966. To this end, I find that the element of when dispossession against the defendant and even possession thereof occurred is missing. 29.Another question relates animus possidendi, the intent to possess the land to exclusion of all others including the owner. The plaintiff contends that she has fenced the whole of the suit land and she cultivates a portion of the same. Fencing land and cultivating the same can be construed as an element of animus possidendi, as was stated inMwangi Githu v Livingstone Ndeete [1980] eKLR. 30.I have carefully read through the witness statement of the plaintiff. She has made a sweeping statement that “upon my settling thereupon and or taking possession, thereof, I fenced it off and begun tilling the same and also rearing and grazing livestock there in”. There is no clarification as to how and when the plaintiff embarked on fencing and tilling the suit land, seeing that she had settled on her own land far much earlier. 31.What more, the plaintiff apparently is tiling just about a 1/3 of the suit parcel that is 0.94 ha out of 2.98 ha as per her own evidence and the report from her surveyor ( pw6). The rest of the land is nothing but bush and this evidence is similar to that of the surveyor for the defendant. From the two reports of the surveyors, there is no indication of any activity having been undertaken on the larger portion of the land, there were no livestock, or even livestock structures on these large portions of the land. Thus her photographs of animals on some land are not in tandem with the surveyors’ reports. The plaintiff has availed a photograph of houses and structures, but it has turned out that these are not on the suit land. This far, I find that the plaintiff has not sufficiently demonstrated the element of animus possidendi in her claim of adverse possession. 32.As it were, the defendant has given minute details of how she encountered challenges trying to utilize her land and at some point, her maize crop was stolen, that is how she engaged her close neighbour, the plaintiff in year 2018 to be looking after the land, but when she wanted to sell the same, the plaintiff started claiming that she is the only one who could get the land. 33.The provisions of Section 107 of the Evidence Act stipulate that:“(1)(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person” 34.The Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR stated that:“Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say:-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think its more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow.” 35.While in Samson S. Maitai & another V. African Safari Club Limited & Another [2010] eKLR, the court had this to say in relation to proof.“Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute.” 36.. In the instant suit, the onus was upon the plaintiff to prove her entitlement to the suit land through the doctrine of adverse possession. She has not proved the case on a balance of probabilities. The land in question is registered in favour of the defendant, thus she has the rights and privileges appurtenant thereto in terms of the provisions of Section 25 of the Land Registration Act. The counterclaim of the defendant is therefore found to be merited. 37.In the end, the court gives orders as follows;1.Plaintiff’s suit is hereby dismissed with costs to the defendant.2.The counterclaim of the defendant is allowed, but no costs are awarded in the counterclaim. DATED, SIGNED AND DELIVERED AT NANYUKI THIS 17TH DAY OF JUNE 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Nancy Mwangi – C/AOlieti for plaintiffMoses Kamau h/b for Mutembei Chabari