https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4496

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE(OS) NO. 62’B’ OF 2020** **IN THE MATTER OF CLAIM FOR TITLE TO LAND BY ADVERSE POSSESSION OVER TITLE NUMBER LIMURU/RIRONI/265** **BETWEEN** **WINNIE MUTHONI KAHUKI, VICTORIA WANGARE NGATI and** **JOSIAH KAMAU NGATI (suing in the capacity as the legal representative** **Of the estate of ELIZABETH WANGUI KAHUKI…………..……1ST PLAINTIFF** **JOSIAH KAMAU NG’ATI…………………………..…………….2ND PLAINTIFF** **WINNIE MUTHONI KAHUKI……………………..…………….3RD PLAINTIFF** **VICTORIA WANGARE KAHUKI…………………...……………4TH PLAINTIFF** **VERSUS** **HENRY KAHUKI NG’ATI………………………………………….DEFENDANT** **JUDGMENT** 1. The Amended Originating Summons amended on 15/09/2023 is brought under **Order 37 Rule 1(7)** of the Civil Procedure Rules 2010, **Section 38** of the Limitations of Actions Act, Cap 22 and all other enabling provisions of the law. The Application is made by Winnie Muthoni Kahuki, Victoria Wangare Ngati and Josiah Kamau Ngati (suing in the capacity as the legal representative of the estate of ELIZABETH WANGUI KAHUKI AND 3 OTHERS who claim to be entitled to become registered as proprietor of the suit premises also known as TITLE NUMBER LIMURU/RIRONI/265 or the resulting title number thereof following the compulsory acquisition of a portion of the suit premises by the Government of Kenya (the Suit Property) for the determination of the following questions that there be:- 2. A declaration that the Suit Property (L.R. Number LIMURU/RIRONI/265) belongs to the family of the late **Clement David Ngati Kahuki**, father of the 2nd, 3rd, 4th Plaintiffs and the Defendant. 3. A declaration that the Defendant herein; HENRY KAHUKI NG’ATI holds the Suit property in trust as family land for himself and for and on behalf of the 2nd, 3rd, 4th Plaintiffs herein. 4. In the alternative to Prayer 2, a declaration that the 2nd, 3rd and 4th Plaintiffs herein are jointly equally entitled to ownership of the Suit Property by virtue of adverse possession. 5. An order compelling the District Land Registrar, Kiambu to cancel Title Number LIMURU/RIRONI/265 currently registered in the name of the Defendant, **Henry Kahuki Ngati**, and all consequent entries in the register, and to register and issue a new title document jointly in the names of the 2nd, 3rd and 4th Plaintiffs and the Defendant, as the registered proprietors of the suit property. 6. An order restraining the Defendant, whether by himself, his agents, servants, employees, or any other persons, from interfering with the 2nd, 3rd and 4th Plaintiffs' access to, peaceful possession of, and occupation of the Suit Property in any manner whatsoever. 7. An order that the Suit Property be forthwith sold to an interested buyer in the open market, and that the net proceeds thereof be shared equally between the 2nd, 3rd and 4th Plaintiffs and the Defendant. 8. The Defendant be and is hereby directed to produce in Court and to render and deliver to the Plaintiffs, within 14 days of delivery of the Judgment of the Court in this matter the full and accurate accounts for the monies or proceeds received from the rent paid by Angel’s Centre, Tracie Kadada and the compensation awarded by the government of Kenya following compulsory acquisition of a portion of the suit property for the period between the years 2010 and 2023. 9. The National Land Commission be and is hereby directed to render and deliver to the Plaintiffs, within fourteen (14) days from the date of delivery of the Judgment of the Court in this matter, the true and accurate information and documents relating to the compulsory acquisition of a portion of the suit property including the award, the exact hectarage acquired amount of the compensation paid and the bank account details into which the compensation amount was paid. 10. A declaration that the Plaintiffs and the Defendant are all entitled to an equal share of the proceeds derived from the Clause 7 and 8 above and that the Defendant and or the National Land Commission (if not already remitted) be and is hereby directed to remit the respective equal shares of the proceeds due to each of the 2nd, 3rd and 4th Plaintiffs within fourteen (14) days from the date of delivery of the Judgment of the Court in this matter. 11. That the costs of the Court proceedings be borne by the Defendant, together with interest thereon at Court rates from the date of filing of the suit until payment in full. 12. Any further or better relief as the Honourable Court may deem fit and just to grant. 13. The Summons is grounded on the Affidavit of Elizabeth Wangui Kahuki sworn on 7/07/2020. The Plaintiffs' case rests on two principal legal foundations. First, they assert that the Suit Property L.R. Title Number LIMURU/RIRONI/265 is family land belonging to the estate of the late Clement David Ngati Kahuki, and that the Defendant, Henry Kahuki Ngati, whilst registered as the sole proprietor, acquired the title under circumstances that render him a trustee of the property on behalf of the entire family, including the 2nd, 3rd, and 4th Plaintiffs. In other words, the registration of the property in the Defendant's name alone does not reflect the true beneficial interests of the family, and equity demands that he be declared to hold the property in trust accordingly. 14. In the alternative, the Plaintiffs contend that they have, since approximately the year 1980, been in actual, open, physical, and uninterrupted possession of the Suit Property, thereby establishing a claim to equal ownership through adverse possession under Section 38 of the Limitations of Actions Act, Cap 22. On this basis, they argue that the 2nd, 3rd, and 4th Plaintiffs have collectively acquired equitable title to the land and are entitled to be registered as co-proprietors alongside the Defendant. 15. The Plaintiffs further seek the protection of the Court against interference by the Defendant with their possession and occupation of the property, and, should the Court be satisfied with either ground, they pray for an order of sale and equal distribution of the net proceeds among all parties as a just and practical resolution of the dispute. 16. In the Supporting Affidavit, the Applicant, Elizabeth Wangui Kahuki, deposes that she is the Plaintiff and the duly authorized legal representative of the estate of her late husband, Clement David Ng'ati Kahuki, who passed away intestate on 1/05/2015, as evidenced by the Grant of Letters of Administration annexed and marked as **"EWK 1"**. The Applicant states that she married the deceased under civil law in 1974, and their union was blessed with four children, including the Defendant, Henry Kahuki Ng'ati. These are: 17. Josiah Kamau 18. Henry Kahuki Ngati (The Defendant) 19. Winnie Muthoni Kahuki 20. Victoria Wangare Ngati 21. She states that in 1978, using her personal savings, she purchased a house in Umoja I Estate, which she and her late husband subsequently sold in 1979 to purchase the suit property, land parcel number L.R. LIMURU/RIRONI/265, from Peter James Mbugua Mathu for Ksh 60,000/= as a deposit. The balance of the purchase price was secured via a Ksh 200,000/= charge with Kenya Commercial Bank, and the family took possession of the developed property on 1/01/1980, which features two houses depicted in their current state in the photographs annexed and marked as **"EWK 2a and b"**. 22. The Applicant further states that the family lived in one house and rented out the other until 1999, when she and her husband relocated to another parcel, leaving their children in the suit property. Following her husband's prolonged fourteen-year illness, the children mobilized funds to clear the outstanding bank loan, and the Defendant was appointed to manage the deposits. In 2014, the Applicant and her late husband requested the Defendant to follow up on the loan clearance and facilitate the registration of the title deed in the deceased's name. 23. However, upon her husband's demise in 2015, the property remained registered under the vendor's name. After the Defendant persistently failed to provide updates, the Applicant conducted an official search at the Kiambu Land Registry, where she obtained a copy of the green card, annexed and marked as **"EWK 3"**, discovering to her dismay that the Defendant had secretly and illegally transferred the suit property into his own name through a claim of adverse possession. 24. In a bid to resolve the matter amicably, the Applicant initiated family meetings and sought the intervention of both the local Chief and the Sub-County Commissioner, leading her to lodge a caution on the property, as supported by the current Official Search Certificate annexed and marked as **"EWK 4"**. Upon instructing her Advocates on record, they retrieved Court documents from the Milimani Law Courts concerning **Environment and Land Case No. 1042 of 2016 (O.S.),** the pleadings and Judgment of which are annexed and marked as **"EWK 5"**. The Applicant contends that the Defendant deliberately concealed material facts, failed to serve or involve any of the beneficiaries of the deceased's estate, and instituted the suit surreptitiously to swindle the estate. Consequently, she prays that the Honourable Court finds the suit property belongs exclusively to the estate of Clement David Ng'ati Kahuki (deceased) and grants the orders sought. 25. In response to the Originating Summons, the Defendant filed a Replying Affidavit sworn by the Defendant on 14/10/2022 and Grounds of Opposition of even date. The Defendant opposes the Originating Summons on the grounds that: 26. This suit is *res judicata* since the issues herein were determined fully and with finality in **Milimani ELC (OS) 1042 of 2016** (**Henry Kahuki Ngati vs Peter James Mathu Mbugua & Kenya Commercial Bank Ltd)** and hence it should be dismissed in its entirety. 27. The Suit does not satisfy the threshold established Sections 7, 13, 37 and 38 of the Limitations of Actions Act, Chapter 22 of the Laws of Kenya for a claim of adverse possession. 28. The Suit is incompetent and an abuse of the process of the Court and the Defendant prays that it should be dismissed in *limine.* 29. Vide directions given on 23rd October, 2023, the matter was disposed of by way of viva voce evidence. **The Plaintiff’s Evidence** 1. David Karanja Njuguna testified as PW1 and produced his witness statement as evidence in chief. He did not produce any list of documents as exhibits. 2. It was his testimony that he knew the late Ngatia in 1986 and also that he knew his wife too Elizabeth Wambui, and that they had 4 children. He testified not knowing how the late Ngatia bought the suit property and that he did not know that the property had a loan. He is a neighbour and he did not know that the suit property was auctioned three times by Kenya Commercial Bank (KCB). 3. He testified not knowing that Mr Ngatia who bought some land in 1999 was separated from his wife because he told the Court that he saw them at the suit property all the time. He also stated that he was not aware that there is a Court order evicting Mr Ngatia from the land. 4. It was his case that he attended the wedding ceremony for Wangare in 1998 at the suit property Rironi/Limuru/265. According to him Mr Ngatia constructed another home in 1999 and he moved away from the above-referenced property but the children remained on the land except the married daughter. 5. He told the Court that he knows the names of all the children of the late Ngatia. To him, there were some floods on the property in 2000 and after the flooding the children of the late Ngatia reported the loss of their documents to the Chief. Tenants on the land paid rent to Mr. Kahuki Ngatia and that he never knew that there were two cases relating to the suit property. 6. That due to the construction of Waiyaki/Rironi road the 1st house was demolished and the 2nd house is not visible and so in the 2nd Defendant’s bundle pages 88 to 90 I only see pictures but not a house. He concluded by stating that he is not in Court to lie and that he knows the family and parents of the children. 7. On re-examination, he stated that he lived on the suit property and originally there were two gates and he used to visit the family. That even when Mr Ngatia and the wife moved out of the suit property they still visited. 8. Richard Lesley testified as PW2 and he adopted his witness statement dated 24/09/2024 which he produced as his evidence in chief. Upon cross-examination he testified that his tenancy commenced in 1990 to 2002 and that he paid a rent of Kesh 5,000 which he paid in cash to Mr Clement Kahuki. 9. He stated that the tenancy agreement between Henry Kahuki Ngatia showing rent as Kesh 4,500 shows tenancy from August 2015 to July 2016. It was his testimony that he saw four children being Henry, Isaiah, Victoria and Winnie plus their mother Elizabeth. That he left the suit property due to personal reasons and at page 190 of the Defendant’s bundle there is outstanding arrears of Kenya power and electricity bills was normally handled by his wife. 10. He told the Court that at the time of his departure from the suit property he had not accumulated any bill neither had he run down the rental premises. It was in a dilapidated state since he rented it and he lived on the premises with four children. That during his tenancy he travelled to UK for two (2) months. 11. At paragraph 5 and page 26 of the Plaintiff’s bundle it describes where he currently lives being a tenant of the 2nd Defendant. That the property belongs to the late claimant and his wife. He testified that he pays rent and he occupies the house b himself. He told the Court that no marriage ceremony took place and that he never faced any insecurity and that Mr. Kahuki as he has indicated at paragraph 8 was his landlord until he left. He confirmed that the picture at page 85 shows the property he lived in although it shows the property with no roof. 12. On re-examination he confirmed that the electricity bill on page 180 does not mention which property is the bill for and therefore it could be a bill for anywhere else but the suit property. He confirmed that paragraph 7 of page 19 of the Plaintiff’s bundle, bears the statement by Josiah Kamau about the relationship between his mother and father. He denied being aware of any Court order nor eviction order. 13. Josiah Kamau Ngati as PW3 testified and adopted his two witness statements dated 24/09/2024 and list of documents numbered 1 to 30 which he produced as exhibits. On cross-examination he restarted there that there was an Agreement to sell the suit property and that it was charged to KCB. According to him, Mr Clement paid Kesh 60,000 as deposit but he testified that he had no evidence to support the claim. He referred to the letter at page 18 issued to Clement David Kahuki and stated that he did not have any other document to show payment. 14. He testified being aware that his father Mr Clement continued to occupy the sit property which was ¼ and acre. Further that the land has been acquired twice on construction of Nairobi-Nakuru Road. He however told the Court that he had no documents to show that Mr. Kahuki was registered owner and neither did he know whether his father or mother registered a caveat on the suit property 15. That at page 44 of the Defendant’s bundle there is a Decree issued in **Civil Case No. 5392 of 1993 (OS)**. The said Decree directed vacant possession to the Plaintiff and that he is not aware whether the said Decree was set aside. Further that he did not know whether his father borrowed any money. 16. He told the Court that his father left the property in 1999 or around 2000 and he went to live on another property he had previously developed. According to him, his father and mother were estranged from 1983 to 2004 as he has stated at paragraph 7. He testified that whereas he completed form four in 1989 he never joined any college and he ventured into business of selling merchandize in industrial area. 17. It was his testimony that from the age of 8 years he lived on the suit property and only left in 2010. That in 1999 his brother upon consulting the bank he was told they had Kesh 500,000 to pay and that by 1992 the outstanding amount was Kesh 600,000 but todate he stated that they are not aware of the outstanding amount. 18. According to him, his father never demolished the fence nor house when he moved out. He built a new home but it was not clear how much he spent. Henry Kahuki never occupied suit property in his right since property belonged to the family. 19. Despite having held several meetings at his father’s house and the suit property where they lived, he told the Court that he had no minutes. That several payments were made as evidenced at pages 134 to 137 and several letters were written to Henry Kahuki as shown at page 139 to 142 and receipts were issued in Henry’s name and not Clement. 20. Further that the letters at pages 56 to 60 and other documents are similarly addressed to Henry Kahuki. It is his case that Mr Clement never gave agency letter or Power of Attorney as he went to the bank to inquire about balances in regard to the suit property. 21. Furthermore, he testified that he was not aware that Henry registered a caution on the suit property in the life time of his father and he referred the Court to page 63 entry No. 8 made on 19.08.2003 and he stated that his father was alive then. 22. On the rent collected from the suit property he told the Court that the rent was used to pay the loan but that on their part together with his sisters they made payment although he did not have any records produced to support this claim. He stated that when Leslie left the suit property in 2002, the next tenant came in in 2006 though the house was under renovation. 23. He further testified that at pages 71-81 of the Defendant’s bundle, the tenancy agreement is in the name of Henry Kahuki as Landlord dated 29/10/2010 and that his father was alive so Henry entered into the lease agreement behind his father’s back and he also collected rent illegally. Following which, bills which are produced at pages 151 to 152 are prepared in the name of Henry Kahuki not their mum or dad and he alludes this to the fact that they appointed him to deal with the property. 24. That in **ELCOS 1042 OF 2016** whose documents are filed at page 144 of the Plaintiff’s bundle the 1st Defendant was the registered owner of the suit property. That the family agreed to appoint a family lawyer although there is no documentation produced to support this claim. That after the Judgment in the above-referenced case he has not joined the case nor appealed against the decision made. 25. That at page 157 of the Plaintiff’s bundle, it reads that the owner of the property is Peter James Mbugua and the land registration is Limuru/Rironi 265. According to PW3 when flooding happened, they lost documents relating to the suit property but he could not remember whether they reported this or not. 26. That when the flooding happened and the main house got flooded the family moved to the house of the higher ground and abandoned the house on the lower ground. 27. He told the Court that his brother built a wall and steel gate so that they could not access the suit property although he is aware that one house was rehabilitated. Further that page 166 of the Plaintiff’s bundle at paragraph 11 is not false because the family shifted to the four bedroomed massionette which his brother has now renovated. It was his word that he was not aware that Henry filed a case as seen in the letter at page 56 and he stated that the suit property was the only home for him and his brother. 28. When he was re-examined he reiterated the averments in the written statements. He told the Court that Henry was his brother and the 1st to 3rd Plaintiffs are his mother and sisters. He confirmed that at page 58 of the bundle there is a letter written to KCB bank seeking waiver by Henry Kahuki also at page 56 and page 165 of the Defendant’s bundle attests to there being no separation between the parents. That notices at pages 146 to 158 of the Plaintiff’s bundle show the suit property as Limuru/Rironi 265 and the name is shown to be Peter Mathu and the title was issued in 2016 and 2017 and by then Henry had no title in his name. 29. He testified not having known about the Court case in 1993 but that after realizing that his brother had title in his name they went and searched the Court file and that they found documents such as the Decree and eviction notice. To the Court he stated that his prayer is that the suit property is reverted back to the family. About the picture on 09/04/2012 he acknowledged that he could identify his uncle in the picture but that he was not party to any agreements made by Kahuki between the tenants and he referred the Court to pages 71-74, 75 to 78 and 82 of the Defendant’s bundle. 30. With this the Plaintiff closed his case. **Defendant’s Evidence** 1. DW1 Lucy Wairimu Kahuki, testified that she is a retired teacher now engaged in dairy farming she adopted how witness statement filed at pages 196 to 200 in the Defendants bundle. 2. Upon Cross examination she told the Court that all the Plaintiffs are children of her brother-in-law except the first Plaintiff who is the wife (Elizabeth-deceased). It was her testimony that they deceased and her brother was separated although she had no papers to support her claim that they were divorced. 3. She told the Court that she had stated at paragraph 13 that the deceased was locked up at Langata but that she had no documents to support her claim. She also testified that she had stated at paragraph 14 that Josiah the 2nd Plaintiff left home but that she was not aware he was at home that she was only told by the father of the 2nd Plaintiff. It was her testimony that she lives in Ngong but the Plaintiffs live in Rironi and that she used to visit them on every weekend on Saturday. 4. In her testimony she told the Court that she had not seen eviction orders referred to at paragraph 22 and that at paragraph 32 she had stated that he built a mansion but that she was not aware when he built the said mansion. She said that she had not produced any documents to show she was a guarantor although she insisted that he told her that she was a guarantor. 5. According to DW 1 She testified that she could not remember when she last saw the Plaintiffs. But at page 171 there is a picture and that herself and Josiah are in the picture and therefore she stated that it was not true that she last saw Josiah in 1990. 6. Upon reexamination she told the Court that her brother and Elizabeth were not living together they were separated for about twenty-one years. She testified that she visited Elizabeth in prison and took the Defendant to visit the mother. According to her when her brother in- law told her that they were separated she used to visit the Plaintiffs and her daughter also used to go cook for them during holidays since they stayed at the house. 7. She testified not having seen the eviction order and that when the Defendant told her they were evicted she asked her brother and she visited Clement who told that he had educated the children and that they could look for their own places to live in she testified that she did not guarantee the loan. 8. According to her the photograph at pages 171 of the Plaintiffs bundle shows family gathering at Kahuki’s. That Josiah in 2012 was not staying on the suit property he came during the family gathering. 9. DW 2 Isaiah Jo Kahuki Testified that he was a retired teacher but that he ran a private school he told the Court that he lives in Kikuyu and he adopted his witness statement dated 11/10/2023 which he told the Court he would rely upon. He acknowledged that he knows the Plaintiffs that they are children of his late brother. 10. When he was cross examined he testified that Elizabeth and David Clement were divorced although he stated that he never saw any divorce papers. He stated that he used to visit the family since he lived in Kikuyu and they lived in Rironi. Furthermore, that he could only account for the days he visited them. 11. He testified having seen Josiah during the burial of his father in 2015. He said that he never saw him anytime that he visited the children. At paragraph 13 of his witness statement he told the Court that he talked about eviction orders but that he never saw any documents and that he never witnessed any eviction. Further add paragraph 11 page 192 he stated that before this date Henry had been living on the suit property but that he later left. 12. According to DW2 the letter at page one 65 the second paragraph speaks of suit property being the only livelihood for Henry. That the letters at page 166 and 167 refers to a response to Henry from HHM dated 04/04/2001 and 13/04/2001 communicating between Henry and the bank confirming that he lived on the suit property with his brother. 13. He further stated that whenever he visited, he would meet the children and also, he would see those who had rented the house on the premises. He confirmed having visited the land recently and the initial two houses constructed were not on the suit property. He stated that Henry pulled down one house at the second house has been rehabilitated. Further, he clarified that at paragraph 22 of the witness statement at page 193 he speaks of a new house but that it can also be a rehabilitation as opposed to a completely new house. 14. Upon re-examination he told the Court that he never saw any documentation on divorce but they did not live together for over 10 years. He testified that he got a report about incarceration of Elizabeth from Lucy. That he visited the suit property maybe once a month or once in two months and that he never used to find Josiah on the suit property. According to him the letter at page 165 does not say Kamau lived on the suit property. 15. Furthermore, that the house that is on the land has been rehabilitated and it looks new. He clarified that the first sentence at page 165 paragraph two means that the person has no other home. 16. Henry Kahuki Gatia testified as DW3 and he told the Court that he saw an Affidavit dated 14th of December 2020 and a witness statement before the Court and the list of documents filed in Court from pages 14 to pages 183 which he adopted as his witness statement and his exhibits. He stated that the averments in the witness statement and Affidavit are correct and are his evidence. He testified that he knows the Plaintiffs who are his sisters and his brother. 17. On cross examination he stated that he grew up on the suit property with his siblings. But in 1980 when he was about four years old and in 1999 when he was about twenty-three years old he was still on the suit property. According to him when he turned 18 years old, they used to shuttle between his auntie’s house home and his father did take care of them. 18. He told the Court that there was a loan of Kesh. 200,000 taken by Mr Peter Mathu. The first loan was extinguished and when he talked to the bank he was to pay Kesh 700,000. That the documentation at page 62 shows that there is a balance indicated as Kesh 375,009. He testified not having received a discharge letter but that he ended up suing the bank and he never went the discharge way. He stated that he did not have any documents post 2003. 19. It was his case that he wanted the bank transfer the property to him via private treaty in 2014 or thereabouts at paragraph seven of the Plaintiff’s bundle page 126 he states that he was not a preview. He testified that his wife is a partner in the law firm that handled the issue of the suit property. According to him at page 125 the amount of the loan is stated to be Kesh 200,000 but it had ballooned. He acknowledges that he has been in charge of the suit property since 1999. 20. That since 12 2006 to 2020 he stated that he has not been living on the suit property. That he has electricity bills within his bundle to show that he was absent from the stood property but that he was managing affairs of the suit property as can be seen at pages 152 to 153 documents which include water bills and are dated back to 2001 and 2000. He stated that he has an agreement with KPLC which is shown at page 151 although it is unsigned by KPLC. 21. He testified and stated that he paid Kes 6.94 million as expenses and that he has been in charge of the suit property since 2002 todate and since the place was flooding, he incurred expenses as stated at paragraph 8 of the witness statement. He stated that he was in employment and he used to take SACCO loans but he has no proof to show the amount that he took as a loan. 22. That following compulsory acquisition he testified having received Kesh 3.5 million or there about but he has no objection if documents are retrieved from the National Land Commission. That the documents at page 159 bears as such and the easement issue is being raised by his children. 23. Upon re-examination he stated that the suit property was never registered in his father’s or mother’s name and neither was a caution registered on the suit property. That the full purchase price was not paid either. He stated that page 21 of the Defendants bundle sure there were attempts to auction the property. That on page 44 there’s a Decree and order at page 45 and he is not aware there was an appeal by the second Defendant who is his father. 24. He testifies having written a letter to KCB as shown at page 165 and that they confirmed that they would discharge the property in his name. **Milimani ELC 1042 OF 2016** was filed and concluded but there is no appeal on it and none of the Plaintiffs applied to join and so the Decree according to him is valid. In this suit he instructed his own lawyers and that the Plaintiffs never assisted or worked with him to instruct Counsel. 25. He told the Court that there is a letter by his neighbor telling him about the suit property as filed at page 94 of the bundle, the letter shows that he went and got clearance from the county government of Kiambu. That currently he stays on the suit property. That there is a structure on the suit property which is practically new it is improved from a bungalow to a masionette. 26. He testified that his brother fell off with his dad in the 1990’s and he went to live in Mukuru Kwa Njenga and he only came to his brother’s funeral in 2015. That the letters at pages 165 to 169 was his attempt to get the suit property. According to him he sat with the bank Managers and he pleaded his case and he was given the opportunity to clear the loan. That he was 24 years then and he has now reached 50 years. He testified having made payments to clear the loan by himself. With that the Counsel closed the Defendant’s case. 27. Parties were directed to file their written submissions which they did and the Court has considered them in the Judgment. 28. Despite the Court giving directions on filing of submissions on 24/11/2025 and mentioning the matter for compliance on 23/03/2026 and despite the parties confirming that they filed their written submissions on this date and the Court issuing a Judgment date, the CTS does not have any written submissions on record. That be as it may this Court has still considered the pleadings, the witness statements and written the Judgment herebelow. **Analysis and Determination** 1. The key issues for determination in this matter are fourfold: 2. *Whether the suit is barred by the doctrine of res judicata by reason of the Judgment in Milimani ELC (OS) 1042 of 2016;* 3. *Whether the Defendant holds the suit property on constructive or resulting trust for the benefit of the family of the late Clement David Ng'ati Kahuki;* 4. *Whether the Plaintiffs have established the statutory requirements for adverse possession under Section 38 of the Limitations of Actions Act Cap 22; and* 5. *Whether the Plaintiffs are entitled to accounts and a share of the rents and compulsory acquisition compensation received by the Defendant.* 6. The Amended Originating Summons, brought pursuant to Order 37 Rule 1(7) of the Civil Procedure Rules 2010 and Section 38 of the Limitations of Actions Act, Cap 22, raises two principal juridical claims: first, that the suit property L.R. LIMURU/RIRONI/265 constitutes family land held on constructive trust by the Defendant, Henry Kahuki Ng'ati, for the benefit of the entire family of the late Clement David Ng'ati Kahuki; and second, in the alternative, that the 2nd, 3rd and 4th Plaintiffs have acquired title by adverse possession by virtue of long, open, continuous and uninterrupted occupation since approximately 1980. 7. The Plaintiffs further seek accounts of rents and compensation monies received, an order of sale and equal distribution of net proceeds, and a restraining order against interference with their possession. The Defendant's response, grounded in his Replying Affidavit sworn on 14/10/2022 and his Grounds of Opposition, raises three formidable defences: res judicata arising from **Milimani ELC (OS) 1042 of 2016**, failure to satisfy the statutory threshold under Sections 7, 13, 37 and 38 of the Limitations of Actions Act Cap 22, and abuse of the Court process. The doctrine of constructive trust in the land law context finds its clearest articulation in **Gissing v Gissing[1971] AC 886**, where Lord Diplock stated that a constructive trust arises; ***"Whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land."*** 1. In the Kenyan context, the Court of Appeal in **Esiroyo v Esiroyo[1973] EA 388**affirmed that registration of land in one person's name does not necessarily extinguish the equitable rights of others who contributed to its acquisition. As regards adverse possession, Halsbury's Laws of England, Volume 28 (5th Edition) at paragraph 901 states that; ***"The essence of adverse possession is that the squatter's possession must be factual possession, accompanied by the requisite intention to possess, exercised without the consent of the true owner."*** 1. Section 38(1) of Cap 22 extinguishes the title of the registered owner upon twelve years of adverse possession, a provision interpreted strictly by the High Court in **Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR,** where the Court held that; ***"The claimant must demonstrate animus possidendi, that is, the intention to possess the land to the exclusion of all others including the paper owner."*** 1. The competing claims in this matter therefore require that I consider issues of equity and in the domain of limitation statutes. 2. The Plaintiffs' evidence, as presented through PW1 David Karanja Njuguna, PW2 Richard Lesley, and PW3 Josiah Kamau Ng'ati, suffers from material inconsistencies and conspicuous gaps that fatally undermine the twin pillars upon which the claim is constructed. PW1, a neighbour, candidly admitted ignorance of the loan, the three attempted auctions by KCB, and the existence of prior Court proceedings, rendering his testimony of limited probative value beyond establishing that children were in physical presence on the property at various times. 3. PW2 Richard Lesley, a former tenant, confirmed paying rent to the late Clement Kahuki during his tenancy from 1990 to 2002, which potentially supports the family's beneficial interest in the property during that period, yet he equally admitted being unaware of any Court orders, and his evidence does not establish the Plaintiffs' own proprietary rights independent of the deceased. 4. PW3 Josiah Kamau Ng'ati, who provided the most substantive testimony, made several damaging concessions upon cross-examination: he admitted that the suit property was never registered in either his father's or mother's name; that he had no documents evidencing any payment towards the loan by himself or his sisters; that receipts and tenancy agreements were issued in the Defendant's name and not in the name of either parent; that he was unaware of the 1993 **Civil Case No. 5392** Decree ordering vacant possession; that his father left the property in 1999 or 2000; and crucially, that he himself left the suit property in 2010. The Plaintiffs' failure to produce any documentary evidence of financial contribution to the loan repayment is devastating to the constructive trust claim, for as Lord Bridge stated in **Lloyd's Bank Plc v Rosset [1991] 1 AC 107**, ***"Direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust."*** 1. The Defendant's evidence through DW1 Lucy Wairimu Kahuki, DW2 Isaiah Jo Kahuki, and DW3 Henry Kahuki Ng'ati himself is comparatively more coherent and with supportive documentation. DW3 acknowledged growing up on the suit property but established that from 1999 he assumed sole management and control of the property, negotiated directly with KCB for loan settlement, cleared the outstanding balance which had ballooned from the original Kes. 200,000 to Kes. 700,000, and prosecuted **Milimani ELC (OS) 1042 of 2016** to Judgment without opposition or application to join by any of the Plaintiffs. 2. He further confirmed receiving compulsory acquisition compensation of approximately Kes. 3.5 million and rehabilitating the remaining structure into a maisonette at personal expense. Critically, both DW1 and DW2, though lacking documentary proof of the alleged separation and incarceration of the 1st Plaintiff, corroborated the Defendant's account that Josiah had not resided on the suit property for extended periods. The weight of oral and documentary evidence therefore tilts decisively in favour of the Defendant on the question of factual possession and financial investment, though as Professor Okoth-Ogendo observed in *Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya* (1991), ***"the formal register in Kenya's land system has repeatedly failed to capture the full texture of familial and communal claims that subsist behind the certificate of title,"*** a caution this Court has to bear in mind when evaluating the equities. 3. Now to the issues for determination. 4. *Whether the suit is barred by the doctrine of res judicata by reason of the Judgment in Milimani ELC (OS) 1042 of 2016;* 5. On this first issue, Section 7 of the Civil Procedure Act Cap 21 defines *res judicata* as a bar where the matter directly and substantially in issue has been heard and finally decided by a Court of competent jurisdiction between the same parties or parties under whom they claim, litigating under the same title. In **Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR**, the Court of Appeal held that:- ***"The doctrine of res judicata serves the important public policy of bringing finality to litigation and protecting parties from being harassed with repetitive suits on the same matters."*** 1. The Judgment in **ELC (OS) 1042 of 2016**, which declared the Defendant the rightful owner following adverse possession against the vendor Peter James Mathu Mbugua and KCB, resolved questions of title as between the Defendant and the vendor, not as between the Defendant and his siblings. Since the Plaintiffs were neither parties to that suit nor privies in the strictly legal sense recognised in **Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853**, where Lord Reid stated that privity for *res judicata* purposes must be ***"a legal privity and not merely a privity of interest,"*** the plea of *res judicata* must fail as against the Plaintiffs on the trust claim. 2. *Whether the Defendant holds the suit property on constructive or resulting trust for the benefit of the family of the late Clement David Ng'ati Kahuki;* 3. On the second issue of constructive trust, the Applicants’ case, anchored on the testimonies of PW1 (David Karanja Njuguna), PW2 (Richard Lesley), and PW3 (Josiah Kamau Ngati), posits that the family took physical possession of the developed parcel on 01/01/1980, utilizing proceeds from the sale of an Umoja Estate house. They assert that the children collectively mobilized resources to clear a Ksh 200,000/= charge with Kenya Commercial Bank, designating the Defendant merely as an agent to interface with the financial institution. This position is repudiated by the Defendant (DW3), supported by paternal aunt DW1 (Lucy Wairimu) and uncle DW2 (Isaiah Jo Kahuki), who testified that the deceased parents were estranged for over two decades, and that the property was never registered in the parents' names due to default. 4. The Defendant produced documentary evidence comprising bank correspondence, municipal rates, and utility bills issued exclusively in his name, proving he paid Ksh 6.94 million to prevent public auctions. In evaluating these positions, this Court is guided by the timeless treatise *Halsbury's Laws of England* (4th Edition, Volume 48), which underscores that ***"a constructive trust arises whenever the circumstances are such that it would be unconscionable for the owner of the property to assert his own beneficial interest in the property and deny the beneficial interest of another."*** 5. Similarly, in **Isaya Shitsama v. John Shitsama [2013] eKLR**, the Court of Appeal held that:- ***"Family land registered in the name of one sibling is held on an implied or constructive trust for the other beneficiaries where it is demonstrated that the acquisition was intended for family benefit."*** 1. Now, while Section 26(1) of the Land Registration Act (Chapter 300) protects absolute title, Section 28 explicitly subjects such registration to overriding interests, including trusts. The evidence demonstrates that the initial purchase deposit of Ksh 60,000/= was paid by the parents in 1979, and the suit property served as the matrimonial and ancestral home. The Defendant’s subsequent clearance of the bank loan did not transform him into an exclusive purchaser; rather, it constituted a contribution towards preserving family property, creating an equitable accounting obligation. In the Canadian Supreme Court authority of **Pecore v. Pecore [2007] 1 SCR 795**, it was underscored that; ***"A resulting trust arises when a person transfers property or purchases property in the name of another without intending to make a gift."*** 1. The Defendant’s independent actions in **ELC No. 1042 of 2016**, without extracting a Grant of Representation or involving the estate of the deceased, amounted to a fraudulent concealment of material facts designed to defeat the equitable interests of his mother and siblings. 2. *Whether the Plaintiffs have established the statutory requirements for adverse possession under Section 38 of the Limitations of Actions Act Cap 22; and* 3. On the third issue of adverse possession, the law is settled that a family member cannot ordinarily acquire adverse possession against another family member who shares an entitlement to occupy the same property, for possession in such a case is permissive rather than adverse. In **Mbura & Another v Muye ([2023] KEELC 238 (KLR)).** stated that; ***"... the law is settled that a family member cannot ordinarily acquire adverse possession against another family member who shares an entitlement to occupy the same property, for possession in such a case is permissive rather than adverse."*** 1. The Plaintiffs, having occupied the suit property as children and dependants of the deceased, exercised possession that was entirely permissive and familial in character, and they cannot transmute that permissive occupation into adverse possession against the Defendant who was himself on the property as a family member and who subsequently assumed its management with the knowledge, acquiescence, and indeed partial delegation of the family. 2. In essence what the Court is saying is that for a claim of adverse possession to succeed under the Limitation of Actions Act (Cap 22), the claimant's occupation must be hostile to the paper title owner and without the owner's permission. When family members share a right or entitlement to occupy the same family land such as in un-subdivided inherited property, their stay on the land is deemed to be with the permission or license of the family as a whole. Because this presence is legally classified as permissive rather than adverse or hostile, the 12-year statutory clock required to acquire a title cannot start ticking. 3. Furthermore, PW3 Josiah admitted leaving the property in 2010, meaning that even if the clock of adverse possession had commenced running against the Defendant upon his registration in 2016, the statutory period of twelve years under Section 38 of Cap 22 would not yet have elapsed at the time of filing this suit. 4. *Whether the Plaintiffs are entitled to accounts and a share of the rents and compulsory acquisition compensation received by the Defendant.* 5. On the fourth issue, equity does not permit a trustee and, by analogy, a person who has managed family property to retain for himself the entirety of the fruits of that management. In **Mbei v Muriuki & Another [2012] eKLR,** the Court held that a person who manages family property and receives rents and profits therefrom is accountable to the beneficiaries thereof to the extent of their respective shares. Notwithstanding the failure of the Plaintiffs' primary claims, the evidence of DW3 that he received compulsory acquisition compensation of approximately Kes. 3.5 million in respect of a portion of the suit property raises a residual equity that cannot be extinguished by the simple fact of the Defendant's registration. 6. To the extent that the suit property was originally purchased using the joint resources of the deceased and his wife, whose estate the 1st Plaintiff administers, the compensation attributable to the acquired portion represents proceeds of property in which the estate of the deceased holds a beneficial interest that the Defendant, having obtained title through the mechanism of adverse possession against the vendor and not through purchase or gift from the family, cannot equitably claim to the exclusion of that estate. **Final Determination and Disposal Orders** 1. Having considered the pleadings, the evidence on record, the written submissions of the parties, and the applicable law, the Court makes the following final orders and findings: 2. ***The plea of res judicata raised by the Defendant in respect of the constructive trust and accounts claims is hereby overruled, as the Judgment in Milimani ELC (OS) 1042 of 2016 determined issues of title between the Defendant and the vendor and KCB and does not bind the Plaintiffs who were neither parties nor privies to those proceedings in the legal sense.*** 3. ***An order is hereby made directing the District Land Registrar, Kiambu, to forthwith cancel the sole registration of Title Number LIMURU/RIRONI/265 in the name of Henry Kahuki Ngati, and concurrently register the said property jointly in the names of Winnie Muthoni Kahuki, Victoria Wangare Ngati, Josiah Kamau Ngati, and Henry Kahuki Ng’ati as tenants in common in equal shares.*** 4. ***The alternative prayer for adverse possession under Prayer 3 is hereby dismissed in its entirety, as the Plaintiffs' occupation was permissive and familial in character, the statutory period of twelve years had not been completed against the Defendant as registered proprietor, and no credible evidence of animus possidendi to the exclusion of the Defendant has been established on the standard of a balance of probabilities.*** 5. ***The Defendant is ordered to file in Court within forty-five (45) days a comprehensive statement of accounts of all rental income received from the year 2010 to 2023, subject to a deduction of the documented Ksh 6.94 million incurred towards loan liquidation and development, with the net balance or deficit shared equally.*** 6. ***An order is hereby issued directing the National Land Commission pursuant to Prayer 8 of the Originating Summons, to render a full, true, and accurate account to both parties and to the Court of all the full particulars of the compulsory acquisition including the exact area acquired, the compensation awarded, and the bank account into which the payment was made, such disclosure being in the public interest and necessary for the just determination of the residual equity on accounts within thirty (30) days and any unremitted sums be paid to the joint names of the four parties.*** 7. ***Given the familial nature of this dispute each party shall bear its own costs of these proceedings.*** 8. ***The file shall be placed before the Court for mention in ninety (90) days to confirm compliance with the orders on accounts and National Land Commission disclosure meaning mention shall be on 30/11/2026.*** It is so ordered. **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 13TH DAY OF JULY 2026.** **...........................** **MOGENI J** **JUDGE** **In the presence of:-** ………………………………………….. for the 1st to 4th Plaintiffs/Applicants …………………………………………… for the Defendant/Respondent Mr. Melita – Court Assistant **...........................** **MOGENI J** **JUDGE**