https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4821

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC CIVIL CASE 2A OF 2021** **DANIEL IRUNGU KAHUTHIA..................................................1ST PLAINTIFF** **MARGARET RUGURU KAHUTHIA……………………..… 2ND PLAINTIFF** **TERESAH WANJIRA MAKUNDI ………………..…………3RD PLAINTIFF** **TERESH THOGORI KARIUKI……………………………….4TH PLAINTIFF** **JOHN MAINA MUKUNDIL..................................................... .5TH PLAINTIFF** **JAMES MUKUNDI KAHUTHL……………………………… 6TH PLAINTIFF** **JECINTA KIRIGO MUKUNDIL……………………………..7TH PLAINTIFF** **–VERSUS-** **KIIRU S/O GACHUIGA AKA** **JOSEPH KIIRU GACHUIGA** **SUBSTITUTED BY SAMMY MAINA KIIRU…………….…… DEFENDANT** **JUDGEMENT** 1. The Plaintiff commenced this suit through the Plaint dated **2nd October, 2015,** amended on **11th May, 2023**, seeking judgment against the Defendant for: 2. **An order for rectification of the register for land registration No Othaya/Kiahugu/544 by cancellation of the registration of Kiiru S/O Gachuiga a.k.a Joseph Kiiru Gachuiga the defendant herein as the proprietor thereof and substitute it with the names of Margaret Ruguru Kahuthia, Teresah Wanjira Mukundi, Teresah Thogori Kariuki the 2nd, 3rd and 4th plaintiffs herein and/or a declaration be made that the plaintiffs have acquired title to the land by way of adverse possession.** 3. **Costs of this suit together with interest thereof from the date of filing suit to date of realisation.** 4. **Any further relief that this court may deem just and expedient to grant.** 5. The initial suit was filed by the seven Plaintiffs but the names of the 1st 5th and 6th Plaintiffs were removed when the plaint was amended and the suit that subsists is by the 2nd, 3rd, 4th and 7th Plaintiffs. Further, the suit was initially against Kiiru S/O Gachuiga, who in the course of these proceedings became deceased and was substituted with the current Defendant Sammy Maina Kiiru as Administrator of his estate. 6. The Plaintiffs claim that the original registered owner of land parcel **NO. OTHAYA/KIAHAGU/544,** Kahuthia S/O Kangethu was so done as the 1st son of **Kangethu S/O Kihara** to hold in trust for his brothers namely **Mukundi S/O Kangethu & Kariuki S/O Kangethu.** The Plaintiffs aver that the trust has never been determined save that the families have lived in harmony on the land and were to have the trust determined by way of Succession Cause, which cause has been commenced. 7. The Plaintiffs aver that on or around **17th September, 2015**, they received information that the Defendant had petitioned the Othaya Land Control Board for consent to transfer the suit land to his son **Sammy Maina Kiiru**, which application was declined by the area administration and elders on the ground that they knew the actual owners of the land and/or which application is pending before the Othaya Land Control Board. 8. The Plaintiffs further claim that on that information they visited the land Registry- Nyeri where they extracted a copy of the register **(Green Card**) which has confirmed that not only was the land transferred to the Defendant but he had been securing big loans from various banks using the land. 9. The Plaintiffs aver that upon further enquiry and investigation, they established that the Defendant had in the 1970s bought the land through public auction and got registered as a proprietor thereof on 11.11.71 and was issued with a land certificate. 10. The plaintiff avers that following the registration of the Defendant as a proprietor, he did not take actual possession of the land but left the Plaintiffs in possession thereof and since then the plaintiffs and their large families comprising of over 130 persons (living and some buried in the suit land) have been enjoying actual possession thereof, openly and uninterrupted. 11. The plaintiffs further claim that as a result, they acquired good title to the land by way of adverse possession, since they have been in continuous uninterrupted occupation of the land and the Defendant is a stranger to them and he has never visited the plaintiffs nor made a claim to the land. **The Defendant’s Defence and Counterclaim** 1. The Defendant filed his Statement of Defence and Counterclaim dated 21st September, 2020 and later amended on 25th July, 2024. 2. The Defendant admitted that the original Defendant applied to have the suit land transferred into the name of the substituted Defendant. The Defendant confirmed that the suit land was transferred and registered into the name of the original Defendant pursuant to a sale through Public Auction in execution of a decree. 3. The Defendant averred that Original Defendant **Kiiru s/o Gachuiga** purchased the suit land through an Auction. The Defendant in further Reply to the Amended Plaint as the Plaintiff to strict proof of the other contents therein, 4. The Defendant contended that the original Defendant purchased the suit land **Othaya/Kiahugu/544** in a public Auction held in execution of a decree in **Othaya District Magistrate’s Court case No. of 1970 Daniel Ndugire-vs-Kahuthia Kangethu** on 10th May 1971 and a land Certificate was duly issued. 5. The Defendant averred the Plaintiffs’ occupation of the land is illegal and unlawful and has been subject to various court cases, Nyeri **High Court Civil Case No. 27 of 1985 Kahuthia s/o Kangethe -vs- Daniel Ndugire and Gachuiga** involving the same parcel of land with the same issues as in this suit. 6. The Defendant denied that the Plaintiffs have acquired good title by way of adverse possession. The Defendant filed a Counterclaim where he prayed for judgment against the Plaintiffs for: 7. **An order that the Plaintiff do grant the Defendant vacant possession of Othaya /Kiahugu/544, failure to which they be forcibly evicted.** 8. **Costs of the suit and counterclaim.** **The Hearing and evidence** 1. The 2nd, 3rd, 4th and 7th Plaintiffs testified in support of their claims. The claims by the rest of the Plaintiffs were abandoned when the Amended plaint was filed and their names deleted. 2. **PW1, Margaret Ruguru Kahuthia,** adopted her witness statement dated 2nd May 2023 as her evidence in chief. She testified that she is the widow of Kahuthia S/O Kang'ethu, the original proprietor of Land Parcel No. **Othaya/Kiahugu/544.** She stated that she got married to him in the year 1959 and has been in actual occupation of the suit property together with her family. She further testified that her husband died on **15th October 2002** and that he held the suit property not only for himself but also in trust for his two deceased brothers, namely Mukundi S/O Kang'ethu and Kariuki S/O Gichuki. 3. It was her testimony that she occupies one-third (1/3) of the suit property while the remaining portions are occupied by the families of the other Plaintiffs. She stated that five generations of her family comprising fifty-seven (57) persons, both living and deceased, have resided on and have been buried on the suit property. She further testified that the Plaintiffs and their respective families have extensively developed the suit property and, according to the valuation report produced in evidence, the suit property has an estimated market value of Kshs. 32,000,000/=. 4. The witness testified that although the deceased Defendant became registered as proprietor of the suit property over fifty years ago, he never took actual possession thereof. She further stated that her late husband, together with his two brothers, had previously instituted proceedings claiming title to the suit property by way of adverse possession, which suit was dismissed for having been filed four months before the statutory period had lapsed. According to PW1, the orders granting ownership of the suit property to the Defendant were never fully enforced, and the Defendant never obtained vacant possession of the suit property. 5. She maintained that she, together with her family, has occupied the suit property openly, continuously and uninterruptedly since the year 1959 and prayed that this Court finds that the Plaintiffs have acquired title to the suit property by way of adverse possession and grants the reliefs sought in the Amended Plaint. 6. Upon cross-examination by Mr Muhoho, learned counsel for the Defendant, PW1 testified that she had produced documents showing that the suit property belonged to her husband and had attached the Land Certificate for Land Parcel No. Othaya/Kiahugu/544 in the name of **Kahuthia S/O Kang'ethu**. She stated that she was before the Court on behalf of her late husband as she resides on the suit property but confirmed that she had not obtained Letters of Administration in respect of his estate. 7. She further testified that her late husband held the suit property on behalf of two other persons and that she was unaware whether their respective widows had obtained Letters of Administration. She confirmed that her husband had previously instituted cases relating to the suit property but was unaware of the particulars of those proceedings, including whether any monies had been ordered to be paid or whether the suit property had been sold through a public auction. She also testified that she was unaware of any court order directing the occupants to vacate the suit property. 8. PW1 maintained that she has peacefully occupied the suit property from the time of her marriage and has never seen the Defendant on the land. She testified that members of five generations of her family have lived and been buried on the suit property, including her late husband, children and parents-in-law. 9. PW2, **Teresah Wanjira Mukundi,** relied on her witness statement dated 2nd May 2023 and filed in Court on 4th May 2023 and adopted the same as her evidence in chief. She produced the documents filed together with the Plaint dated 2nd October 2015 which were marked as Plaintiffs' Exhibits 1 to 4 and further produced the documents attached to the Plaintiffs' witness statements which were marked as Plaintiffs' Exhibits 5, 6 and 7 respectively. 10. PW2The witness testified that she is the widow of James Mukundi Gichuki, whom she described as the biological brother of **Kahuthia S/O Kang'ethu**. She stated that she got married in the year 1961 and that her late husband died on or about 25th August 2009 and was buried on the suit property. She testified that she occupies one-third (1/3) of the suit property together with her family comprising several generations of descendants who reside on and have been buried on the land. 11. Her testimony was that the suit property belonged to the three brothers, namely Kahuthia S/O Kang'ethu, Mukundi S/O Kang'ethu, and Kariuki S/O Gichuki, but was registered in the name of Kahuthia S/O Kang'ethu to hold it on behalf of the others. She stated that they still had the original title deed and did not know how another title was issued in favour of the Defendant. 12. PW2 further testified that upon the registration of the deceased original Defendant as proprietor of the suit property in the 1970's, their deceased husbands instituted proceedings in the 1980's seeking cancellation of the Defendant's title and registration of themselves as proprietors by way of adverse possession. She stated that the said suit was dismissed in 1985 after the Court found that the claim had been filed four months before the statutory period had lapsed. According to PW2, the Defendant thereafter failed to obtain vacant possession of the suit property, thereby enabling the Plaintiffs to acquire possessory rights over the land. 13. It was PW2's evidence that the Defendant's attempt to transfer the suit property to his son in the year 2015 was futile since the Plaintiffs had remained in possession of the land and the Defendant's right to recover the same had become statute-barred under the Limitation of Actions Act. She therefore prayed that the Court grant the reliefs sought in the Plaint. 14. Upon cross-examination, PW2 testified that the suit property was not registered in the name of her late husband but was held by **Kahuthia S/O Kang'ethu** on behalf of the three brothers. She confirmed that she had peacefully occupied and developed the suit property as evidenced by the documents and valuation report produced before the Court. 15. PW2 initially testified that she was not aware of any previous court proceedings relating to the suit property or of any public auction. She, however, later confirmed that they became aware of the public auction when they appeared before the Land Control Board. She maintained that she had occupied the suit property peacefully together with her family. 16. PW3, **Theresa Thogori Gichuki Kariuki**, relied on her witness statement dated 2nd May 2023 and adopted the same as her evidence in chief. 17. PW3 testified that she is the widow of **Daniel Kariuki Kang'ethe** (also referred to as Kariuki Gichuki), a biological brother of Kahuthia S/O Kang'ethu. She stated that she resides on the suit property and occupies one-third (1/3) thereof together with her family. It was her testimony that her occupation of the suit property has always been continuous and uninterrupted and that she has adequately developed her portion of the land. 18. She testified that her late husband died on 27th February 2012 and that members of her family spanning four generations have lived on and some have been buried on the suit property. She further stated that the families of the other Plaintiffs occupy the remaining portions of the suit property. 19. PW3 adopted the evidence of the other Plaintiffs maintaining that although the deceased Defendant became registered as proprietor of the suit property in the 1970s, he never took actual possession of it. She testified that upon learning of the Defendant's attempt in 2015 to transfer the suit property to his son, the Plaintiffs instituted these proceedings to enforce what they considered to be their possessory rights over the suit property. 20. Upon cross-examination, PW3 testified that she married into the family in or about 1985, although her marriage certificate was issued in 2004. She confirmed that Kahuthia S/O Kang'ethu was the elder brother of her late husband and that the suit property was registered in his name to hold it on behalf of the other brothers. She maintained that she had not heard that the suit property had been sold at a public auction until 2015. 21. PW3 further testified that the Plaintiffs learnt that Kiiru S/O Gachuiga had purchased the suit property in the year 1971 when attempts were made to transfer the same to his son. She, however, maintained that the Plaintiffs remained in possession of the original title deed and had continued occupying the suit property peacefully. 22. She stated that although her late husband and the other family members had previously sued Kiiru S/O Gachuiga over the suit property, the present proceedings were not intended to repeat the earlier suit but were brought to enable the Plaintiffs to pursue what their predecessors had failed to obtain. 23. In re-examination, PW3 testified that she had no personal knowledge of any previous proceedings between Kahuthia S/O Kang'ethu and Kiiru S/O Gachuiga and confirmed that she had never personally sued or been sued in respect of the suit property before these proceedings. 24. **PW4, Jecinta Kirigo Mukundi,** relied on her witness statement dated 2nd May 2023and adopted the same as her evidence in chief. She testified that she is the biological daughter of PW2, Teresah Wanjira Mukundi, and was born in 1974. She stated that she has lived on the suit property throughout her life, together with her five children and one grandchild. She further testified that she is a third-generation descendant of the family occupying the suit property and that their extended family comprises approximately one hundred and ten (110) persons residing on the suit property, while seventeen (17) relatives have been buried there. 25. Her testimony was that Kahuthia S/O Kang'ethu was her elder father (uncle) and that the suit property was registered in his name to hold it on behalf of his brothers, in accordance with the family's arrangement under which the eldest son held land in trust for the younger siblings. Although the suit property had never been formally subdivided, each family knew its respective portion on the ground. She adopted the evidence of PW1, PW2 and PW3 regarding the Plaintiffs' occupation and possession of the suit property. 26. PW4 testified that she had neither heard of the deceased Defendant nor the substituted Defendant until the year 2015 when attempts were made to transfer the suit property to the substituted Defendant. According to her, although the deceased Defendant was registered as proprietor of the suit property in the year 1971, he never entered into or occupied the land, and the Plaintiffs together with their families have remained in actual possession thereof for over fifty years. 27. Upon cross-examination, PW4 testified that there was nothing on the title document expressly indicating that the suit property was held in trust. She however maintained that the suit property belonged to the three brothers and that she was claiming her late father's beneficial share thereof. She stated that Kahuthia S/O Kang'ethu's title ought to be subdivided into three portions with her father's share being allocated to his family. 28. PW4 further testified that she became aware that the suit property had been sold through a public auction to recover a debt but was unaware whether Kahuthia S/O Kang'ethu owed any debt giving rise to the sale. She nevertheless maintained that the Defendant's title was irregularly obtained and prayed for its cancellation and registration of the suit property in favour of the Plaintiffs. 29. She testified that she was not aware of any previous proceedings relating to the suit property and maintained that neither the deceased Defendant nor the substituted Defendant had ever occupied or developed the suit property. She further stated that the Plaintiffs have lived peacefully on the land and that several of their relatives have been buried thereon. **The Defence witness and evidence** 1. **DW1, the Defendant herein, Sammy Maina Kiiru**, relied on his witness statements dated 17th May 2020 and 5th February 2025 and adopted the same as his evidence in chief. He relied on the Defendant's List and Bundle of Documents dated 17th May 2020 which were produced in evidence and marked as Defendant's Exhibits 1 to 7. 2. It was his testimony that the suit property, Land Parcel No. Othaya/Kiahugu/544 was purchased by his late father, Kiiru S/O Gachuiga alias Joseph Kiiru Gachuiga, through a public auction and he was subsequently registered as proprietor thereof on 11th November 1971. He testified that despite his late father's registration as proprietor, he never obtained actual possession notwithstanding the numerous attempts made over the years to recover the same. 3. DW1 referred the Court to Exhibit 7 in the Defendant's Bundle of Documents, being the order issued in Miscellaneous Application No. 3 of 1976 between Kiiru Gachuiga and Kahuthia S/O Kang'ethu wherein orders were issued directing the Respondent to deliver possession of the suit property to the Defendant's father. He further testified that several other proceedings had subsequently been instituted by the Plaintiffs' predecessors challenging his late father's title and occupation of the suit property and that copies of the same had been produced in evidence. 4. It was his evidence that the Plaintiffs' claim that the Defendant's title was fraudulently acquired was unfounded since his late father lawfully acquired the suit property through a public auction. He further challenged the Plaintiffs' claim for adverse possession on the basis that their occupation of the suit property had neither been peaceful nor uninterrupted, as his late father had consistently sought to recover possession of the land through court proceedings. 5. DW1 testified that owing to the Defendant's inability to obtain possession of the suit property for several decades, he had filed a Counterclaim seeking vacant possession and eviction of the Plaintiffs from the suit property. 6. Upon cross-examination, DW1 denied the Plaintiffs' claim that they had lawfully occupied the suit property since the year 1974 and maintained that their occupation had at all material times been challenged by the Defendant and his predecessor in title. He, however, confirmed that he had not produced the judgment in High Court Civil Case No. 27 of 1985 which had been referred to during the proceedings. 7. When referred to the Green Card for the suit property, DW1 confirmed that Kahuthia S/O Kang'ethu was the original registered proprietor of the suit property and was related to the Plaintiffs. He nevertheless maintained that the Plaintiffs' continued occupation of the suit property was unlawful. 8. In re-examination, DW1 confirmed that his late father was the Applicant in Miscellaneous Application No. 3 of 1976 relating to Land Parcel No. Othaya/Kiahugu/544 wherein orders for delivery of possession of the suit property were issued. He further confirmed that the Originating Summons proceedings produced in the Defendant's Bundle of Documents related to the same suit property and that his late father had been named as the Respondent therein. 9. DW1 maintained that the Plaintiffs were aware of the previous proceedings concerning the suit property and reiterated that their occupation thereof had never been peaceful as there had been numerous disputes and court proceedings between the parties and their predecessors over the years. He further testified that although his late father obtained orders for possession of the suit property, he was unaware why the same were never executed but believed that there had been an understanding that the occupants would voluntarily vacate the land without the need for forcible eviction. **Parties Submissions** 1. This matter was mentioned on 7th May, 2026 in the presence of Mr Muhoho, Counsel for the Defendant and Ms Wambui Mwai, counsel for the Plaintiffs. The counsel for the Plaintiffs confirmed the filing of submissions, and the counsel for the Defendant was granted leave to file submissions within 3 days. 2. At the time of writing this judgment and upon perusing the physical file and checking the CTS, the Plaintiffs' submissions were not on record. **The Defendant’s Submissions** 1. The Defendant filed their submission dated 8th May,2026 and raised their issues; 2. ***Whether the suit being a claim for adverse possession has been commenced in the right manner.*** 3. ***Whether the Plaintiffs have met the threshold for a claim of adverse possession.*** 4. ***Whether the Defendant is entitled to the orders sought in the counterclaim.*** 5. Counsel for the Defendant submitted that the claim by the Plaintiffs has not met the threshold to prove adverse possession as required by Law. That for such a claim to succeed, the Plaintiff ought to have shown that their occupation of the parcel of land was continuous and uninterrupted. He submitted that from the evidence that was presented before Court by the Defendant, since acquisition of Title, there have been pending civil cases over the parcel of land **OTHAYA/KIAHUGU/544** to the effect that the Plaintiff's occupation cannot be said to have been uninterrupted. The Defendant produced the said Court documents. 6. On whether the Plaintiff is entitled to his counterclaim, Counsel submitted that the Defendant, as the registered owner of the suit land, has rights over the said land. He stated that the Plaintiffs are in illegal occupation of the land and based on the foregoing it is the Defendant's humble submission that the Defendant is entitled to his prayers in the Counterclaim seeking vacant possession of the parcel of land. **Analysis And Determination** 1. Having carefully considered the pleadings, oral and documentary evidence adduced by the parties together with the Defendant’s submissions, this Court is of the considered view that the following issues arise for determination:- 2. **Whether the Plaintiffs' claim of the suit property under Trust is sustainable.** 3. **Whether the Plaintiffs' claim to suit land through adverse possession is sustainable.** 4. **Whether the Plaintiffs are entitled to an order rectifying the register and cancelling the Defendant's title and registration of the land in their names** 5. **Whether the counterclaim should be allowed.** 1. **Whether the Plaintiffs' claim of the suit property under Trust is sustainable.** 2. Under this issue, the Court has considered the question of whether the Plaintiffs have the locus standi to institute the claim against the Defendant. Under paragraphs 2, 3 and 4 of the Amended Plaint and evidence adduced in Court, the Plaintiffs state that the original registered owner of land parcel **NO. OTHAYA/KIAHAGU/544 Kahuthia S/O Kangethu** obtained registration as the 1st son of **Kangethu S/O Kihara** and was registered to hold in trust for his brothers M**ukundi S/O Kangethu and Kariuki S/O Kangethu.** The Plaintiffs testified that the 2nd Plaintiff, Margaret Ruguru Kahuthia, was the widow of Kahuthia s/o Kangethia (deceased), the original title holder, who died on 15th October 2002. The 3rd Plaintiff Teresia Wanjira Mukundi was the widow of Mukundi S/O Kangethu (deceased), while the 7th Plaintiff, Jacinta Kirigo Mukundi, is their daughter. The said Mukundi died on 25th August 2009. The 4th Plaintiff, Theresa Thogori Gichuki, was the wife of Kariuki Gichuki S/O Kangethu**,** who died on 27th February 2012. 3. The totality of the evidence and pleadings show that the Plaintiffs seek to enforce the **beneficial interests of Kahuthia S/O Kangethu** and his brothers M**ukundi S/O Kangethu and Kariuki S/O Kangethu,** all deceased. The Plaintiffs further assert that their occupation of the land stems from their relationship with the principal title holder and the alleged beneficiaries of the trust. The Plaintiffs aver that the said trust has never been determined and that they intended to have the trust determined by way of Succession Cause which the Plaintiffs and others have already started processing. 4. The Plaintiffs have not expressly pleaded that they instituted the suit as administrators of the respective estates and have not exhibited grants of letters of administration to the deceased estate. The Court is of the view that a beneficial interest vested in a deceased person ordinarily devolves upon his or her estate, and, as a general rule, only the personal representative may sue to recover estate property. 5. The leading case on this issue is **Trouistik Union International & Another v Jane Mbeyu & Another, Civil Appeal No. 145 of 1990 [1993] eKLR**, where the Court of Appeal interpreted S**ection 82(a) of the Law of Succession Act**. The Court stated: **"*To determine who may agitate by suit any cause of action vested in the deceased at the time of his death, one must turn to section 82(a) of the Law of Succession Act. That section confers that power on personal representatives and on them alone."*** 1. The Court of Appeal in **Virginia Edith Wambui Otieno v Joash Ochieng Ougo & Another**, **Civil Appeal No. 31 of 1987**, **[1987] KECA 63 (KLR)** held: ***"An administrator is not entitled to bring an action as administrator before he has taken out letters of administration. If he does, the action is incompetent at the date of its inception."*** 1. In the present case, and insofar as the Plaintiffs seek to enforce beneficial interests of the Kahuthia S/O Kangethu and his brothers Mukundi S/O Kangethu and Kariuki S/O Kangethu, they lack the locus standi necessary to institute the claim. 2. On this ground alone, the Plaintiffs' claim under this head would be defeated. 3. However, the Plaintiffs may claim that they claim in their own personal capacity as members of the family of the original title holder, though this, in the Court’s view, is not supported by the pleadings and evidence. 4. The legal foundation of a claim based on trust is found in S**ection 28(b) of the Land Registration Act.** The Section recognises trusts, including customary trusts, as overriding interests binding upon registered proprietors without the necessity of registration. However, the impugned transfer occurred before the Land Registration Act came into force, but the same principle on overriding interests existed under **Section 30(g) of the Registered Land Act (repealed)**. Which stated that; ***Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register –*** ***(g) the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed;*** 67.Section 28 of the Repealed Registered Land Act also provided for overriding interests and trusts and stated as follows; ***28. The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject –*** ***(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and*** ***(b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register:*** ***Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee*** 1. The Supreme Court in **Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari & another [2018] eKLR** held that customary trust is an overriding interest which survives first registration and binds subsequent proprietors where proved. The Court stated as follows; ***"52. Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered*** [***Land Act***](https://kenyalaw.org/akn/ke/act/2012/6)***. Under this legal regime (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor. Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia that what is essential is the nature of the holding of the land and the intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:*** ***1. The land in question was before registration, family, clan or group land.*** ***2. The claimant belongs to such family, clan, or group.*** ***3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.*** ***4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.*** ***5. The claim is directed against the registered proprietor who is a member of the family, clan or group.*** ***58. What are we to make of these changes? Several interpretations are plausible. It is now clear that customary trusts, as well as all other trusts, are overriding interests. These trusts, being overriding interests, are not required to be noted in the register. However, by retaining the proviso to Section 28 of the Registered***[***Land Act***](https://kenyalaw.org/akn/ke/act/2012/6)***(now repealed), in Section 25 of the***[***Land Registration Act***](https://kenyalaw.org/akn/ke/act/2012/3)***, it can be logically assumed that certain trusts can still be noted in the register. Once so noted, such trusts, not being overriding interests, would bind the registered proprietor in terms noted on the register. The rights of a person in possession or actual occupation of land, as previously envisaged under Section 30 (g) of the Registered***[***Land Act***](https://kenyalaw.org/akn/ke/act/2012/6)***, have now been subsumed in the “customary trusts” under Section 25 (b) of the***[***Land Registration Act***](https://kenyalaw.org/akn/ke/act/2012/3)***. Thus under the latter Section, a person can prove the existence of a specific category of a customary trust, one of which can arise, although not exclusively, from the fact of rightful possession or actual occupation of the land.”*** 1. Consequent from the foregoing, registration does not necessarily extinguish a trust if one existed. The fact of registration of title, though conferring strong proprietary rights upon the registered proprietor, is not by itself conclusive against a claim founded upon customary trust. The law preserves customary trusts as overriding interests capable of binding registered proprietors once proved. 2. However, the question of whether the trust exists is an issue of evidence, and the defendant remains entitled to contest whether any trust ever existed and whether the facts satisfy the criteria identified by the Supreme Court in the ***Kiebia*** case. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor. Each case has to be determined on its own merits and quality of evidence. 3. In the present case, the mere allegation that the suit land is family land does not, without more, establish the existence of a customary trust or any other type of trust. The question for determination is therefore whether the evidence before the Court establishes that the registered proprietor held the land subject to an obligation, recognised by customary law and protected by statute, for the benefit of another family member or household. 4. The burden of proving the existence, nature and extent of such trust remains upon the party asserting it. It was therefore incumbent upon the Plaintiffs to place before this Court cogent evidence demonstrating the circumstances under which Kahuthia S/o Kangethu became registered proprietor of the suit property and whether there was intention that he was to hold the same in trust for his brothers and the respective beneficial interests accruing therefrom. The existence of a customary trust is not presumed merely because parties are related by blood or marriage or because land is described as family land. Each claim must stand or fall on the quality of the evidence tendered in support thereof. 5. Beyond the bare averment that the suit property was registered in trust, no period of occupation, no evidence was tendered demonstrating when the trust was created, the nature and extent of the alleged trust or the respective shares due to the alleged beneficiaries. The Plaintiffs did not establish whether the beneficiaries were entitled to equal or unequal shares of the suit property, nor did they demonstrate how such beneficial interests devolved upon them. Although they pleaded that succession proceedings have been commenced for the determination of the trust, they neither produced any orders arising therefrom nor demonstrated that they are prosecuting this suit in a representative capacity on behalf of the respective estates. 6. Further, the Court is of the view that the Plaintiffs did not provide evidence to show that the suit land was before registration, family, clan or group land. The Plaintiffs did not show the circumstances under which the original title holder was so registered. Merely stating that he was a 1st born of the family was not enough. 7. Further, the claimants have not shown that they could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances**.** 8. Finally, the Plaintiffs did not direct the claim against the registered proprietor or the personal representative of his estate, who, according to the Supreme Court decision, ought to be a member of the family, clan or group. Indeed, instead of suing the family member who was supposedly registered in trust, the Plaintiffs included the wife of the original title holder who ordinarily ought to have been a defendant. 9. The defendant, on his part, relies on the purchase of the suit land as a result of execution of a court decree. It is noted that judicial sale vests the judgment debtor's interest in the purchaser. In the Court’s view, a sale in execution is not an ordinary private conveyance since it is conducted under the authority of the court pursuant to the **Civil Procedure Act** and the **Civil Procedure Rules**. A purchaser at a judicial sale enjoys a strong presumption that the sale and resulting title are valid. Such title is not lightly impeached because public policy requires certainty and finality in court-supervised sales. Nevertheless, the purchaser acquires only the interest which the judgment debtor was capable of conveying. Accordingly, if the judgment debtor held the land subject to an existing trust, the judicial sale does not necessarily extinguish that trust unless the governing statute expressly provides otherwise. 10. If indeed the original title holder held the land in trust for his brother and if the brothers were beneficiaries as claimed, they had an opportunity to challenge the sale by Public auction under various provisions of the law. In particular, Section 34 of the Civil Procedure Act, which was in force even at the time of the sale, states that; ***All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.*** 1. The Defendant also exhibited court cases filed and determined relating to the suit land. In the High Court at Nyeri in Miscellaneous Application 3 of 1976 between Kiiru Gachuiga (Defendant herein (deceased) versus Kahuthu Kangethu (original title holder), an order was issued on 16th October 1976 requiring the Respondent to deliver to the Applicant vacant possession of the suit land and to quit from the suit land. The Defendant herein also exhibited warrants issued to the Court Bailiff to assist in giving possession of the land to the Applicant and various communications, all in the effort to give possession to the Applicant in the said case. 2. The Defendant further exhibited pleadings in High Court at Nyeri Civil Suit 27 of 1985 Kahuthia Kangethu Kariuki Kangethu, Mukundui Kangethu and Lucy Wanjiru Kangethu versus Daniel Ndugire and Kiiru S/O Gachuiga. In this case, the original title holder sued, challenging the sale. The Plaintiffs informed the Court that the suit was dismissed. 3. The Court therefore finds that whereas customary trusts constitute overriding interests which need not be noted in the register, their existence is not presumed merely because the land is alleged to be ancestral or family land or due to occupation of land. The party asserting such trust bears the burden of proving its existence and the beneficial interests claimed thereunder. In the circumstances of this case, the Plaintiffs failed to prove, on a balance of probabilities, the existence, nature and extent of the alleged trust and the beneficial interests they claim thereunder. 4. **Whether the Plaintiffs' claim to suit land through adverse possession is sustainable.** 5. The first question for determination arising from this issue is whether the Plaintiffs properly initiated their claim for adverse possession by way of a plaint. The Defendant submitted that the Plaintiffs' claim for adverse possession is incompetent for having been commenced by way of a Plaint as opposed to an Originating Summons as contemplated under Order 37 Rule 7 of the Civil Procedure Rules. 6. The Defendant relied on the Court of Appeal case of **Odako & Another v Kirew (Civil Appeal 262 of 1998) 2000 KECA 416 KLR(24 March 2000(Judgment) RSC Omolo, SEO Bosire and EO O'Kubasu JJA,** where it states that the wording of the Order for commencing a claim for adverse possession is in mandatory form and that the same shall be made by originating summons. 7. The Court has considered the fact that the procedural objection was neither raised in the Defendant's Amended Statement of Defence and Counterclaim nor raised during the hearing of the suit. The issue has been raised for the first time in the Defendant's written submissions. 8. It is now trite law that parties are bound by their pleadings and that submissions cannot be used to introduce a new issue for determination or amend a party's case. Consequently, a party cannot, through written submissions, invite the Court to determine an issue which was never placed before it for adjudication. The Defendant, having failed to specifically plead the alleged procedural defect, cannot properly impeach the Plaintiffs' claim on that basis at the submissions stage. 9. The Court notes that the Plaintiffs did not commence this suit as a claim founded on adverse possession, but the suit was initially instituted by way of a Plaint seeking other substantive reliefs, and it was only upon amendment of the pleadings that a claim for adverse possession was introduced. 10. The Defendant was duly served with the Amended Plaint, filed an Amended Defence and Counterclaim, participated fully in the proceedings, cross-examined the Plaintiffs' witnesses and addressed the Court on the merits of the adverse possession claim, but the same was not raised. 11. On the merits of this issue, the Court is persuaded that although Order 37 Rule 7 of the Civil Procedure Rules prescribes commencement by originating summons, a claim for adverse possession **is not considered fatally defective** merely for not having been brought by an originating summons**. T**he Court of Appeal in S**tephen Kaguku Mariba V Kibe Mariba & Another [2007] eklr, civil appeal no. 188 of 2002** dealt with a suit **commenced by plaint (HCCC no. 1554 of 1989)**, in which the plaintiff sought, among other reliefs, a declaration that he had acquired title to half of the suit land by adverse possession. The appellant argued that: ***"...the claim by way of adverse possession not having been brought by an originating summons as is mandatorily required by order xxxvi rule 3d of the civil procedure rules ought not to have been allowed..."*** the court of appeal rejected that submission. it held: ***"While it is true that the suit was commenced by plaint instead of by the procedure of originating summons, we do not consider the error to be fatal in view of the provisions of order xxxvi rule 10 of the civil procedure rules. That provision requires the trial court in an appropriate case, to continue proceedings commenced by originating summons as though the same had been begun by plaint."*** 1. The position was confirmed in the Court of Appeal case of C**hevron (K) Ltd v Harrison Charo Wa Shutu [2016] KECA 248 (KLR)** where the court stated that; *“****The courts have since this decision held that a claim by adverse possession can be brought by a plaint.*** *See****Mariba****V****Mariba, civil appeal no. 188 of 2002, counter-claim or defence as was the case here. See Wabala****V****Okumu (1997) llr 609 (CAK)"*** 1. **In Emily Chepkor Chepkwony v Paul Arap Chandoek [2021] eKLR**, **Munyao Sila J (as he then was), a**t paragraph 9, stated: ***"...from the above exposition of the law by the Court of Appeal as relates to the competency of suits commenced by a plaint where adverse possession is raised, it is evident that a suit is not rendered fatally defective merely because the suit is commenced by way of a plaint rather than by way of an originating summons”*** 1. It is clear from the above analysis of the prevailing jurisprudence that although Section 38 of the [Limitation of Actions Act](https://new.kenyalaw.org/akn/ke/act/1968/21) and Order 37 rule 7 of the Civil Rules contemplate an originating summons as the ideal instrument to use in initiating a plea for orders of adverse possession, the plea can properly be pleaded through a plaint, counterclaim or Defence. 2. Accordingly, the Court finds that the Defendant's objection is without merit and the Plaintiffs' claim is not defeated merely because the issue of adverse possession was introduced through an Amended Plaint rather than by way of an Originating Summons. 3. On the merits of the claim for adverse possession, the Plaintiffs pleaded that the original proprietor of the suit property was **Kahuthia s/o Kang'ethu**, who held the suit property in trust for his two brothers, namely **Mukundi s/o Kang'ethu** and **Kariuki s/o Gichuki**, and it is upon this relationship that the Plaintiffs and other family members occupy the land. 4. The Plaintiffs' evidence was consistent that they have occupied the suit property as family land through successive generations. Their respective testimonies were that they each occupy **one-third portions** of the suit property together with their families and that several generations of family members have lived and been buried thereon. 5. The Court therefore finds that the Plaintiffs' occupation of the suit property has throughout been pleaded and testified to as occupation founded upon an alleged beneficial interest arising from a customary or family trust and not as occupation hostile to the registered proprietor. 6. In the case of ***Kweyu v Omuto*, Court of Appeal, Civil Appeal No. 8 of 1990, the Court held tha**t : *“****In deciding the issue of Adverse Possession, the primary function of a Court is to draw legal inferences from proved facts. Such inferences are clearly matters of law. Thus, whereas possession is a matter of fact, the question whether that possession is adverse or not is a matter of legal conclusion to be drawn from the findings of acts".*** 1. It is trite law that adverse possession contemplates two concepts: possession and discontinuance of possession as was held in the case of [***Wambugu –v- Njuguna***](https://kenyalaw.org/akn/ke/judgment/keca/1983/69)**(1983) KLR 173,** where the Court of Appeal held that the proper way of assessing proof of adverse possession would be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period, and not whether or not the claimant has proved that he or she has been in possession for the requisite number of years. The court stated**:** ***"In order to acquire by Statute of Limitation title to land which has a known owner, the owner must have lost his right to the land either by being dispossessed of it or having discontinued his possession of it. Dispossession of the proprietor that defeats his action are acts which are consistent with his enjoyment of the soil for the purpose of which he intends to use it for a continuous 12 years. The Limitation of Actions on possession contemplates two concepts: dispossession and discontinuance of possession. The proper way of assessing proof of title is whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period, and not whether or not the claimant has proved he has been in possession for the requisite number of years.”*** 1. The law and requirements for adverse possession were reiterated in the case of **Mbira –v- Gachuhi (2002) I EALR 137**, where it was held that: **“……. 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….”** 1. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It must start with a wrongful dispossession of the rightful owner. (See comparative Indian cases of **S. M. Kenni alias Tamanna Sabeb – v- Mst Bibi Sakina AIR 1964 SC 1254; and Parsimi – v- Sukhi, 1993 4 SCC 375).** 2. In the case of **Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR**, the Court stated that time starts running from the moment a proprietor is dispossessed of his land or when his title is challenged, rather than merely from the date of occupation. 3. For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted user of the land. The physical fact of exclusive possession and the **animus possidendi** to hold as owner in exclusion to the actual owner are important factors in a claim for adverse possession. 4. In this suit, the Plaintiffs had the burden to prove not mere possession of the suit property, but possession that was **nec vi, nec clam, nec precario.** (See ***Kimani Ruchine -v- Swift, Rutherfords Co. Ltd. [1980] KLR*** ***1500***and***Karnataka Board of Wakf -v- Government of India & Others [2004] 10 SCC 779).*** 5. Comparatively, the Supreme Court of India in **Mohan Lal –v- irza Abdul Gaffar, 1996, 1 SCC 639** faced with an inconsistent claim of title by agreement and adverse possession, stated that since the appellant admitted he came into possession of land lawfully under an agreement and continued to remain in possession till date of the suit, the plea of adverse possession was not available to the appellant. That having come into possession by agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor and that the latter had acquiesced to his illegal possession during the entire period of 12 years. 6. Whereas the Plaintiffs have demonstrated long occupation of the suit property dating back to the time of the original title holder, long occupation alone is not sufficient to establish adverse possession. The Court must further determine whether such occupation has been adverse to the title of the registered proprietor and whether the registered proprietor has been dispossessed or has discontinued his possession for the statutory period. 7. The Plaintiffs' own evidence demonstrates that their occupation is founded upon their alleged beneficial interests as family members of **Kahuthia S/O Kang'ethu** and his brothers. They claim that they were not aware that the land had been transferred to the original defendant and they only came to learn of the transfer and the circumstances of the transfer in 2015 when the original Defendant sought to transfer the land to his son, the current title holder. Indeed, the Plaintiffs further claimed that they were still holding the original title deed for the land, which was still in the name of Kahuthia S/O Kangethu. They therefore do not seem to recognise the title of the Defendant to the land. 8. PW1 testified that she occupies the suit property as the widow of Kahuthia S/O Kang'ethu while PW2 and PW3 testified that they occupy their respective one-third portions by virtue of their deceased husbands' beneficial interests. PW4 similarly testified that she claims her father's portion of the suit property. 9. In the circumstances, the Court is unable to reconcile the Plaintiffs' claim that they occupy the suit property as beneficiaries of an undetermined trust with their simultaneous assertion that such occupation has been hostile to the Defendant's title. 10. The Defendant's documentary evidence equally demonstrates a continuous assertion of ownership over the suit property. The evidence establishes that the Defendant purchased the suit property through a public auction and was subsequently registered as proprietor thereof on 11th November 1971. 11. It is undisputed that at the time of purchase, the vacant possession of the land was not delivered to the original Defendant. The Defendant's father instituted **Miscellaneous Application No.3 of 1976** seeking vacant possession of the suit property and obtained orders on **6th October 1976** directing delivery of possession of the suit land. Thereafter, the Defendant persistently pursued enforcement of the said orders as evidenced by the correspondence and court documents produced in evidence. 12. The Court further notes that the Plaintiffs' family previously instituted proceedings challenging the Defendant's title to the suit property. The existence of the various proceedings over the years demonstrates that the Defendant's title has been consistently asserted and challenged and that the Plaintiffs' occupation cannot therefore be said to have been peaceful, uninterrupted and uncontested for the statutory period contemplated under the doctrine of adverse possession. 13. Having considered the pleadings, evidence and the applicable law, this Court finds that although the Plaintiffs have established long occupation of the suit property, they have failed to establish that such occupation has been adverse or hostile to the Defendant's title. Their occupation has consistently been asserted as occupation founded upon an alleged beneficial interest arising from a customary trust. 14. Further, the Defendant and his father in title have consistently asserted their proprietary rights over the suit property through litigation and attempts to recover possession, thereby interrupting any claim founded upon continuous and uninterrupted possession. 15. Consequently, this Court finds that the Plaintiffs have failed to prove on a balance of probabilities that they have acquired title to Land Parcel No. Othaya/Kiahugu/544 by way of adverse possession. **Whether the Plaintiffs are entitled to an order rectifying the register and cancelling the Defendant's title and registration in their names** 1. The Plaintiffs seek an order for rectification of the register in respect of Land Parcel No. **Othaya/Kiahugu/544** by cancellation of the registration of the Defendant as proprietor of the suit property and substitution thereof with the names of the Plaintiffs and/or a declaration that they have acquired title thereto by way of adverse possession. 2. The power of the Court to order rectification of the register is provided under **Section 80(1) of the Land Registration Act** which provides as follows: ***"Subject to Section 80 (2), the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake."*** 1. The term "**rectification of register"** has been defined in Black's Law Dictionary, 10th Edition, at page 1467 as: ***"A process by which a person whose name was wrongly entered in or omitted from the record can compel the recorder to correct the error."*** 1. It is therefore settled that the remedy of rectification is available where the Court is satisfied that registration was procured through fraud, mistake or other circumstances contemplated under the law. Further, a registered proprietor's title cannot lightly be impeached unless the statutory threshold has been met. 2. The Court notes that a claim founded upon rectification of title proceeds on the basis that the impugned registration was unlawful or ought not to have been made, whereas a claim founded upon adverse possession acknowledges the existence of the registered proprietor's title but asserts that such title has subsequently been extinguished by operation of law owing to the proprietor's failure to assert his rights for the statutory period. The two causes of action therefore proceed from different legal premises. 3. On the other hand, adverse possession is a statutory method of acquiring title to land by occupation thereof for the prescribed statutory period, for one's own use, in a manner inconsistent with the interests of the registered proprietor and without licence or permission from the owner. It is acquired not by purchase or payment in the traditional sense but by operation of law where the requisite ingredients are proved. 4. It has been held that an order made under Section 38(1) of the Limitation of Actions Act directing that an adverse possessor be registered as proprietor of land in place of the person registered as proprietor is distinguishable from rectification of the land register. Accordingly, a title acquired by adverse possession creates a change in ownership by operation of law and does not require any rectification of the register. 5. It therefore follows that whereas a claim founded upon rectification of title proceeds on the basis that the impugned registration was unlawful or ought not to have been made, a claim founded upon adverse possession acknowledges the existence of the registered proprietor's title but asserts that such title has subsequently been extinguished by operation of law owing to the proprietor's failure to assert his rights for the statutory period. The two causes of action therefore proceed from different legal premises and attract distinct evidential burdens. 6. In the present suit, the Plaintiffs expressly pleaded that the Defendant purchased the suit property through a public auction and became registered as proprietor thereof on 11th November 1971. They have, however, simultaneously sought cancellation of the Defendant's title through rectification of the register while advancing an alternative claim founded upon adverse possession. Earlier in their pleadings, they equally asserted beneficial interests founded upon an alleged customary trust over the suit property. 7. Each of the causes of action pleaded by the Plaintiffs proceeds from a distinct legal premise. A claim founded upon customary trust requires proof of the existence of the trust and the beneficial interests claimed thereunder. A claim founded upon adverse possession proceeds upon an acknowledgement of the registered proprietor's title and seeks its extinguishment by operation of law following hostile, exclusive and uninterrupted possession for the statutory period. Conversely, a claim for rectification of the register proceeds on the basis that the impugned registration was procured through fraud, mistake or other circumstances contemplated by law and ought not to have been made. 8. The Court in **Haro Yonda Juaje v Sadaka Dzengo Mbauro & Kenya Commercial Bank XSELtd (2014) eKLR** aptly stated that: ***"...It does not lie in the mouth of a claimant to aver that the title held by the registered proprietor was fraudulently acquired and then claim the same parcel of land under the doctrine of adverse possession. If the Plaintiff's averment is that the title which was issued to the Defendant was fraudulently acquired, then his cause of action would be for rectification of title by cancellation pursuant to the provisions of the law and not adverse possession."*** 1. In the same vein, theEnvironment & Land Court at Nairobi in **Njue v Matiabe & 3 others [2023] KEELC 17361 (KLR)** rightly emphasised that: ***“The moment the person claiming adverse possession contests and impugns the validity of the registered proprietor's title, the claim for adverse possession is defeated and thus becomes legally untenable. In such a situation, the claimant is at liberty to pursue a cause of action for fraud or, better still, trust, which causes of action are antithetical to and cannot co-exist with a claim for adverse possession."*** 1. The Plaintiffs expressly pleaded that the Defendant lawfully acquired title to the suit property through a public auction and became registered proprietor thereof on 11th November 1971. They have, however, failed to demonstrate how that lawful acquisition is reconcilable with their simultaneous claim that the Defendant's title ought to be cancelled through rectification of the register or that they have acquired title thereto by adverse possession founded upon the same occupation which they have pleaded arises from their alleged beneficial interests under an undetermined customary trust. 2. The Court finds that whereas parties are entitled to plead alternative causes of action, such alternatives must remain legally sustainable and supported by evidence. The Plaintiffs cannot, in the circumstances of this case, simultaneously found their claim upon an undetermined customary trust, acknowledge the Defendant's lawful acquisition of title, seek cancellation of that title through rectification of the register and at the same time assert that the same title has been extinguished by adverse possession without establishing the legal and evidential requirements of each cause of action. 3. This Court is further guided by the well-settled principle that parties are bound by their pleadings and that a court of law can only determine the dispute presented before it on the basis of the pleadings, evidence and submissions properly made by the parties. It is not the function of the Court to speculate upon or infer what a party may have intended to plead, nor is it open to the Court to reconstruct a party's case so as to render otherwise inconsistent causes of action legally sustainable. The Plaintiffs were under an obligation to plead with precision the legal and factual basis of the proprietary rights they claim over the suit property and to tender evidence in support thereof. 4. Having elected to found their claim simultaneously upon an alleged customary trust, rectification of the register and adverse possession, the Plaintiffs are bound by the legal consequences flowing from those pleadings. The Court is equally bound to determine the dispute as pleaded and cannot disregard the express admission that the Defendant lawfully acquired title to the suit property, import facts not pleaded or infer an alternative cause of action that was neither pleaded nor proved merely to sustain the Plaintiffs' claim. 5. From the pleadings and evidence tendered before this Court, the Plaintiffs have not challenged the legality of the public auction through which the Defendant acquired title to the suit property. No particulars of fraud, mistake, illegality or procedural impropriety were pleaded or proved against the Defendant to warrant the cancellation or rectification of the register under Section 80 of the Land Registration Act. 6. Consequently, having failed to establish any of the statutory grounds warranting rectification of the register, having failed to prove the existence of the alleged customary trust and the beneficial interests claimed thereunder and having equally failed to establish their alternative claim founded upon adverse possession, there exists no legal basis upon which this Court may interfere with the Defendant's title or grant the proprietary reliefs sought in the Amended Plaint. **Whether the Counterclaim should be allowed** 1. The Defendant filed the Counterclaim and prayed for an order that the Plaintiffs grant the Defendant vacant possession of Land Parcel No. Othaya/Kiahugu/544, failing which they be forcibly evicted together with costs of the suit and Counterclaim. 2. It is a fundamental principle, ensuring that registered proprietors of parcels of land enjoy absolute ownership unless their title is successfully challenged on specific grounds such as fraud, misrepresentation, or illegal acquisition. 3. The law provides that the registration of a person as the proprietor of land vests in that person absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Further, the law provides that a certificate of title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person so registered is the absolute and indefeasible owner, unless fraud or misrepresentation to which he is a party is proved or the title was acquired illegally, unprocedurally, or through a corrupt scheme. 4. In the case of **Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR**, the Supreme Court reinforced these principles, holding that title conferred through registration is absolute and should only be challenged where there is clear evidence of fraud, misrepresentation, or illegal acquisition. Moreover, the principle of sanctity of title is meant to provide certainty in property transactions, preventing parties from interfering with legally registered ownership unless they meet the strict legal threshold for contesting title. Courts have consistently upheld the validity of registered land ownership**.** 5. During the hearing, DW1 testified that the suit property was registered in the name of the original Defendant, **Kiiru Gachuiga** alias **Joseph Kiiru Gachuiga**, who was his father, whose registration was effected following the purchase of the suit property through a Public Auction. 6. He further confirmed that there existed court cases where **t**he Defendant and his father have consistently asserted their proprietary rights over the suit property since 1971. The evidence before this Court demonstrates that vacant possession was sought as early as 1976 and the Plaintiffs' occupation has throughout been challenged through judicial proceedings. Having failed to establish any superior legal or equitable interest in the suit property, there remains no legal basis upon which the Plaintiffs may continue withholding possession from the Defendant. 7. Having found that the Plaintiffs have failed to establish any legal or equitable interest in the suit property and having further found that the Defendant's title remains valid and indefeasible, this Court is satisfied that the Defendant has proved his Counterclaim on a balance of probabilities. 8. Consequently, the Counterclaim succeeds. The Defendant is entitled to the order for vacant possession of the suit property. 9. **The final order of the Court is that:** 10. **The Plaintiffs' suit is hereby dismissed.** 11. **The Defendant’s counterclaim is allowed, and the following order is hereby made;** 12. **The Plaintiffs shall vacate and hand over vacant possession of the suit property to the Defendant within 90 days from the date of this judgment, failing which an eviction order shall issue for their removal in accordance with the law.** 13. **The Defendant shall also have the costs of both the suit and the Counterclaim.** **Delivered, dated and signed via Microsoft Teams this 23rd day of July 2026.** **HON. L. G. KIMANI** **JUDGE ENVIRONMENT AND LAND COURT** *Read in the presence of:* *Wambui Mwai for the Plaintiffs* *Muhoho for the Defendant*