https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3349

Gitimbu (Suing as the Legal Representative of the Estate of the Late Johana Gitimbu Kareria - Deceased) v M’Minyori (Enviromental and Land Originating Summons 155 of 2014) [2026] KEELC 3349 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3349 (KLR) Republic of Kenya In the Environment and Land Court at Meru Enviromental and Land Originating Summons 155 of 2014 BM Eboso, J May 28, 2026 Between Joyce Mukwanjiru Gitimbu (Suing as the Legal Representative of the Estate of the Late Johana Gitimbu Kareria - Deceased) Plaintiff and Francis Munyua M’Minyori Defendant Judgment 1.The key issue to be determined in this Judgment is whether the late Johana Gitimbu Kareria [the deceased] acquired title to 1.8 acre portion of land parcel number Kiirua/Ruiri/1735 through adverse possession. The estate of the late Kareria contends that the deceased occupied the said 1.8 acre portion as an adverse possessor from the year 2000 to the time he took out this originating summons in 2014. The defendant denies the allegation. Before I analyse and dispose the issue, I will outline the parties’ respective cases, evidence and submissions. Plaintiff’s Case and Evidence 2.The late Kareria initiated this suit in October 2014 through an originating summons dated 4/8/2014. The originating summons was expressed as brought under Section 38 of the Limitation of Actions Act and Order 37 rule 7 of the Civil Procedure Rules. Through the originating summons, the late Kareria invited this court to determine the following verbatim questions:1.Has the plaintiff acquired title to 1.8 acres of land being part of the land comprised in title number Kiirua/Ruiri/1735 by adverse possession?2.Has the defendant’s title to 1.8 acres of part of the land comprised in land parcel No Kiirua/Ruiri/1735 been extinguished?3.Ought the plaintiff be registered as the owner of 1.8 acres of land being part of the land comprised in Title No Kiirua/Ruiri/1735?4.Should this court order that land parcel No Kiirua/Ruiri/1735 be sub-divided and 1.8 acres thereof be registered in the name of the plaintiff and the remainder thereof be registered in the name of the defendant?5.Should this court do order that the production of the title deed in respect of land parcel No Kiirua/Ruiri/1735 be dispensed with to facilitate transfer of 1.8 acres thereof to the plaintiff?6.Should the executive officer of this court be empowered and authorized to excecute all necessary documents to effect 1.8 acres of land being part of the land comprised in title No Kiirua/Ruiri/1735?7.What is the order as to costs? 3.The late Kareria subsequently died on 25/2/2018 during the pendency of the suit. Following an application dated 14/8/2018 by the estate of the late Kareria, this court [Mbugua J] substituted the late Kareria’s widow, Joyce Mukwanjiru Gitimbu, in place of her late husband. The case was thereafter heard ex-parte and an ex-parte judgment was rendered by Mbugua J on 16/9/2020, awarding the estate the 1.8 acre portion. 4.Subsequent to that, the defendant brought an application dated 9/5/2025 seeking, among other reliefs, an order setting aside the ex-parte judgment dated 16/9/2020. Through the application, the defendant contended that he was never served with summons to enter appearance and he was not aware of the suit. Subsequently, the two parties recorded a consent on 7/10/2025, setting aside the ex-parte judgment. The suit was subsequently heard interpartes on 4/2/2026 before Eboso J and now falls for determination. 5.At the hearing, the estate of the late Kareria led evidence by Joyce Mukwanjiru Gitimbu and closed its case. She adopted the contents of the supporting affidavit that was sworn by the late Kareria on 4/8/2014. She also adopted the supplementary affidavit sworn by herself on 4/12/2025. In addition, she produced the 4 documents that were annexed to the late Kareria’s affidavit dated 4/8/2014 and the two photographs that were annexed to the supplementary affidavit sworn by herself on 4/12/2025. 6.In summary, her evidence was that, vide a land sale agreement dated 8/4/1999, the defendant sold to the late Kareria a portion measuring 1.8 acres out of land parcel number Kiirua/Ruiri/1735 at a purchase price of Kshs 120,000. In tandem with the terms of the sale agreement, the late Kareria took possession of the 1.8 acre portion in the year 2000. Subsequent to that, parties engaged a surveyor to mark the boundaries. The late Kareria remained in possession of the 1.8 acre portion until his death in 2018. She added that the defendant had never been to the 1.8 acre portion since the year 2000. She stated that they had been cultivating the 1.8 acre portion, adding that they grew food crops on part of it and planted nappier grass on the rest. She urged the court to decree that the late Kareria had acquired the suit land through adverse possession. Defendant’s Case and Evidence 7.The defendant swore and filed a replying affidavit dated 7/10/2025, contents of which he adopted as part of his sworn evidence-in-chief. His evidence was that the late Kareria “never acquired” 1.8 acres out of parcel number Kiirua/Ruiri/1735. He added that he had been in possession of parcel number Kiirua/Ruiri/1735 and he had never surrendered possession of the land to the late Kareria. He urged the court to dismiss the claim. 8.During cross-examination, he stated that he knew the late Kareria, adding that they were neighbours before he (the defendant) relocated to Muthara in 2001. He confirmed that his ID card number was 10487094. He denied signing the sale agreement dated 8/4/1999 and added that he had not made any report to the Police regarding the sale agreement exhibited by the late Kareria. The defendant stated that between 2001 and 2014, his mother was the one utilizing the suit land, adding that, thereafter his brother utilized the land. Plaintiff’s Submissions 9.The plaintiff filed written submissions dated 27/2/2026 through M/s Kiogora Ariithi & Associates Advocates. Counsel identified the following as the two issues that fell for determination in the suit: (i) Whether the plaintiff had proved open, exclusive and continuous possession of 1.8 acre portion for a period exceeding 12 years so as to meet the threshold for adverse possession; and (ii) Whether the defendant’s title to the 1.8 acre had been extinguished. 10.Citing Sections 7 and 13 (sic) of the Limitation of Actions Act, counsel submitted that the doctrine of adverse possession was underpinned by the said statutory framework. Counsel made reference to the decisions in Mate Gitabi v Jane Kabubu Muga alias Jane Kaburu Muga & 3 others [2017] eKLR and the Court of Appeal pronouncement in Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another [2015] eKLR in which the threshold for acquisition of title under the doctrine of adverse possession was outlined. 11.Counsel argued that there was undisputed evidence that on 8/4/1999, the late Kareria entered into a land sale agreement with the defendant for purchase of 1.8 acres out of the suit land, adding that the late Kareria paid to the defendant Kshs 50,000 at the time of signing the agreement and a further sum of Kshs 40,000 on 7/9/2000. Counsel submitted that under Section 6(1) and Section 8 of the Land Control Act, parties to the agreement were required to apply for consent of the Land Control Board within 6 months and because the application was not made, the contract became void and the late Kareria’s continued possession of the suit land became that of an adverse possessor upon expiry of six months. Counsel relied on the decision in Paul Mwangi Gachuru v Kamande Nguku [2017] KEELC 374 (KLR). 12.Counsel submitted that the late Kareria having enjoyed open, exclusive, continuous and peaceful possession of the 1.8 acre portion from the year 2000, his adverse possession title to the said portion crystalized in 2012 when the 12 year period lapsed. Lastly, counsel submitted that under Section 17 of the Limitation of Actions Act, the defendant’s title to the 1.8 acre portion stood extinguished in 2012 when the 12 year period lapsed. Counsel urged the court to find so. Defendant’s Submissions 13.The defendant filed written submissions dated 20/3/2026 through M/s Hillary Sandi & Co Advocates. Counsel for the defendant identified the following as the two issues that fell for determination in the suit: (i) Whether the plaintiff proved open, exclusive and continuous possession of the defendant’s land for a period exceeding twelve years so as to satisfy the threshold of adverse possession; and (ii) Who should bear costs of the suit. 14.Counsel submitted that there was common ground on the law on the threshold of adverse possession, adding that the only contest was on whether the plaintiff met the legal threshold. Counsel argued that the only evidence which the plaintiff tendered was the sale agreement dated 8/4/1999, which was between the late Kareria and the defendant. Counsel contended that the defendant “opposed the said agreement and denied ever signing the agreement”. 15.Counsel further argued that the plaintiff was unable to explain why the late Kareria never sued the defendant when he was still alive, adding that the plaintiff had failed to explain the delay of “close to over 20 years”. Counsel added that in her evidence during cross-examination, the plaintiff admitted that she did not reside on the suit land. Counsel submitted that the plaintiff did not have any development on the suit land and all she could produce were pictures of nappier grass. Counsel contended that pictures of nappier grass were not sufficient proof of adverse possession to warrant cancellation of a registered owner’s title. 16.Counsel for the defendant submitted that the defendant testified that he never surrendered the suit land to the plaintiff, adding that the plaintiff’s brother was the one cultivating the land. Counsel faulted the plaintiff for failing to bring an independent witness to corroborate her evidence, adding that allowing the claim would lower the threshold of adverse possession. Citing the pronouncement of the Court of Appeal on proof of adverse possession in Kariuki v Mica (Civil Appeal 196 of 2018 [2025] KECA 31 (KLR) (17 January 2025), counsel submitted that the plaintiff had failed to meet the threshold of adverse possession. Counsel urged the court to reject and dismiss the claim. Analysis and Determination 17.The court has considered the pleadings and the evidence in this suit. The court has also considered the legal framework and the jurisprudence relevant to the key issue in the suit. As pointed out in the opening paragraph of this judgment, the key issue that falls for determination in the originating summons is whether the late Kareria acquired title to a portion measuring 1.8 acres out of land parcel number Kiirua/Ruiri/1735. 18.The common law doctrine of adverse possession has statutory underpinnings in Sections 7 and 17 of the Limitation of Actions Act which provide as follows:“7.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.”17.Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.” 19.Suffice it to also observe that Section 7(d) of the Land Act recognizes prescription as one of the methods through which title to land is acquired. Secondly, the question relating to the constitutionality of the doctrine of adverse possession was examined by the Court of Appeal and was answered in the affirmative in the case of Mtana Lewa Vs Kahindi Ngala Mwagandi [2015] eKLR. 20.The common law doctrine of adverse possession of land connotes possession which is inconsistent with and in denial of the title of the registered owner of the land. To establish adverse possession, the claimant must prove that he has had both the factual possession of the land and the requisite intention to possess the land [animus possidendi] for the prescribed and uninterrupted limitation period of twelve years preceding the initiation of proceedings for the vesting order. He must also demonstrate that the registered proprietor had knowledge [or the actual or constructive means of knowing] that he [ the claimant/adverse possessor] was in possession of the land. Further, possession must be continuous; it must not be broken or interrupted. 21.The Court of Appeal defined adverse possession in Mtana Lewa Vs Kahindi Ngala Mwangandi [2015] eKLR 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 in continuity and in extent to show that possession is adverse to the title owner.” 22.The Court of Appeal outlined the following criteria for acquisition of title under the doctrine of adverse possession in Wilson Kazungu Katana & 101 others Vs Salim Abdalla Bakshwein & another [2015] eKLR:“First, the parcel of land must be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner. Lastly, he must have been in that occupation for a period in excess of twelve years having dispossessed the owner or there having been discontinuance of possession by the owner.” 23.In the present originating summons, the plaintiff presented a certified extract of the land register relating to land parcel number Kiirua/Ruiri/1735. The extract of the land register shows that the parcel of land was registered on 13/7/1990 in the name of M’Munguongo M’Nchau. On 8/4/1999, the land was transferred to Francis Munya M’Minyori [the defendant]. The land was still registered in the name of the defendant as at the time the extract was issued by the Land Registrar on 1/8/2013. 24.Secondly, the plaintiff presented evidence showing that the late Kareria’s entry onto and possession of the 1.8 acre portion of the suit land was pursuant to an agreement for sale of the said portion to the late Kareria by the defendant. The plaintiff tendered the sale agreement dated 8/4/1999 which bore a signature and ID card number attributed to the plaintiff. Through the agreement, the defendant sold the 1.8 acre portion to the late Kareria at a consideration of Kshs. 120,000. The plaintiff acknowledged receipt of a part payment of Kshs 50,000 at the time of signing the agreement. Parties to the sale agreement covenanted that the late Kareria was to take possession of the 1.8 acre portion in 2000. The agreement was witnessed by Gatari Ringera Advocate. 25.As part of further evidence demonstrating the circumstances of the late Kareria’s entry onto and possession of the 1.8 acre portion, the plaintiff presented an acknowledgement receipt of a further sum of Kshs 40,000 as further part-payment of the purchase price. 26.When confronted with the above documentary evidence relating to the entry of the late Kareria onto the suit land, and when granted the opportunity to respond to the allegation by way of a sworn affidavit, the defendant filed a replying affidavit dated 7/10/2025 in which he elected to say nothing about the sale agreement; the acknowledgement of receipt of purchase price in the sum of Kshs 90,000; and the granting of possession of the 1.8 acre portion to the late Kareria under Clause 2 of the sale agreement. Having elected to say nothing about the evidence which the late Kareria had presented in form of an affidavit and documentary exhibits, the originating summons proceeded for hearing with the above evidence of the plaintiff as uncontroverted/unconested. 27.Having elected to say nothing by way of replying affidavit, the defendant subsequently attempted to orally disown the agreement and the acknowledgment during cross-examination. He however, admitted that the ID card number which appeared on the sale agreement dated 8/4/1999 and in the acknowledgement dated 7/9/2000 tallied with his ID card number. He confirmed that he knew the late Kareria as a neighbour. He stated that he had not made any complaint to the Police about forgery of the sale agreement. 28.Clearly, if the defendant did not enter into the sale agreement, he could have specifically controverted the late Kareria’s allegation through his replying affidavit. This would have invited the plaintiff to obtain more evidence, including forensic report on the signatures on the agreement and acknowledgement. Having elected not to controvert the evidence relating to the circumstances under which the late Kareria entered the 1.8 acre portion, the finding of this court is that the late Kareria’s entry onto the 1.8 acre portion and his initial possession were pursuant to the sale agreement dated 8/4/1999. The court also makes a factual finding that, indeed, the late Kareria entered the 1.8 acre portion and took possession of it in 2000 as a purchaser. 29.When did the late Kareria become an adverse possessor? The suit land is located in Kiirua which is a rural area where land sale contracts were subject to the Land Control Act. Under Section 8 of the Act, parties to the above agreement were required to apply for consent of the relevant Land Control Board within six months. In default, the contract was to become void by dint of the provisions of Section 6 of the Act. 30.There was no evidence to suggest that the consent was applied for or obtained. Counsel for the plaintiff submitted that because parties did not apply for the consent of the Land Control Board within six months, the agreement became void and the late Kareria became an adverse possessor. This view is correct and is supported by the prevailing jurisprudence on the subject. In Samuel Miki Waweru v Jane Njeri Richu; Court of Appeal Civil Appeal No 122 of 2001, the court outlined the above legal position in the following words:-“It is not in contention in this case that the Land Control Act applied to the alleged lease or sale of the portion of land claimed by the respondent or that the consent of the Land Control Board was neither applied for within the stipulated period nor granted. It follows therefore, and Mr. Gitonga concedes, that, the alleged sale or lease became void for all purposes as provided by Section 6 (1) of the Land Control Act with the consequences stipulated in Section 22 of the Land Control Act. Thus, the agreement of sale in this case was terminated for all purposes by the operation of law and the continuation of possession by the respondent thereafter could not be referable to the agreement of sale or the permission of the original owner. It was an independent possession adverse to the title of the original owner.In our view, where a purchaser or lessee of land in a controlled transaction is permitted to be in possession of the land by the vendor, or lessor pending completion and the transaction thereafter becomes void under Section 6 (1) of the Land Control Act for lack of consent of the Land Control Board such permission is terminated by the operation of the law and the continued possession, if not illegal, becomes adverse from the time the transaction becomes void.” 31.Consequently, the court agrees with the plaintiff that although the late Kareria initially entered the suit land as a purchaser, the purchase was voided by the absence of the consent of the Land Control Board and the late Kareria’s continued possession of the 1.8 acre portion became that of an adverse possessor effective from the year 2000. 32.Was the threshold of 12 years of open, quiet and uninterrupted possession proved? PW1 conceded that the late Kareria did not reside on the 1.8 acre portion. She also conceded that she did not reside on the 1.8 acre portion. It was her evidence that they resided on a different parcel located 1.5 kilometres away from the suit land. She further stated that they did not have permanent structures on the suit land. 33.PW1 further stated that upon entering the suit land, they planted trees, adding that throughout their period of occupation of the 1.8 acre portion, they were cultivating the 1.8 acre portion and planting crops and nappier grass on it. She exhibited photographs of their crops and nappier grass on it. She stated that she was the one utilizing the 1.8 acre portion after the death of her husband . She was the one utilizing the land at the time of her testimony. 34.On his part, the defendant testified as DW1. He stated that he relocated to Muthara in 2001 and had not utilized the suit land since then. He added that his mother utilized the suit land between 2001 and 2014 and that from 2014, his brother was the one utilizing the suit land. He did not lead evidence by his mother or brother whom he alleged were utilizing the suit land. 35.Land parcel number Kiirua/Ruiri/1735 measures 0.845 hectares [2.087 acres]. What the estate of the late Kareria claims to have purchased and to have been in possession of is a portion measuring 1.8 acres only. The defendant testified that he relocated from the suit land way back in 2001 and moved to Muthara which is over 30 kilometres from the suit land. He admitted that he did not stay on the suit land between 2001 and 2014 and he had never utilized it personally. He alleged that his mother and brother had been utilizing the suit land but he was not able to lead evidence by either of the two relatives he alleged were utilizing the suit land. Had the alleged relatives been called as witnesses, they would have told the court how much of the suit land they were utilizing, if at all. 36.Taking into account the fact that from 2001 to the date of filing this suit the defendant resided in Muthara which is a distance of over 30 kilometres from the suit land; the defendant did not personally utilize the suit land during the above period; and the defendant was not able to lead evidence by the relatives whom he alleged were utilizing the suit land between 2001 and 2014, on the balance of probabilities, the court would accept the evidence of PW1 [the plaintiff] as more probable. Consequently, the court finds that the threshold of 12 years of open, quiet, and uninterrupted possession of the suit land by the late Kareria has been proved by the estate of the late Kareria. 37.The result is that question numbers 1, 2, 3, 4, 5 and 6 in the originating summons are hereby answered/determined in the affirmative. Disposal and decretal orders are hereby issued in terms of the above affirmative answers to the six questions as follows:-a.It is hereby found and decreed that the late Johana Gitimbu Kareria acquired title to a portion measuring 1.8 acres out of land parcel number Kiirua/Ruiri/1735 through adverse possession.b.The defendant’s title to the 1.8 acre portion stood extinguished on expiry of 12 years reckoned from the year 2000.c.The Land Registrar is hereby directed to register the late Johana Gitimbu Kareria as proprietor of the said 1.8 acre portion.d.Land parcel number Kiirua/Ruiri/1735 shall be subdivided to parcel out the 1.8 acre portion awarded to the late Kareria. The estate of the late Kareria shall bear the attendant subdivision and registration costs.e.In the event that the defendant does not avail the original title and other requisite conveyance documents, the Land Registrar shall dispense with them.f.In the event that the defendant does not execute the requisite subdivision or conveyance documents, the Deputy Registrar shall sign all such documents/ instruments on behalf of the defendant. 38.On costs, the general principle in Section 27 of the Civil Procedure Act is that costs follow the event. No proper grounds have been demonstrated to warrant a departure from the general principle. Consequently, the defendant shall bear costs of the originating summons/suit. DATED, SIGNED AND DELIVERED AT MERU THIS 28TH DAY OF MAY, 2026B M EBOSO [MR]ELC JUDGEIn the presence of:Ms Bett for the PlaintiffMr Tupet – Court Assistant