https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4655

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCOS E007 OF 2022** **IN THE MATTER OF: SECTION 37 AND 38 OF THE LIMITATIONS OF ACTIONS ACT** **IN THE MATTER OF: THE CIVIL PROCEDURE ACT CAP 21 LAWS OF KENYA** **IN THE MATTER OF: THE LAW OF CONTRACT CAP 23** **IN THE MATTER OF: THE LAND REGISTRATION ACT, 2012** **AND** **IN THE MATTER OF: LAND REFERENCE LOC.2/KANGARI/2886** **MARGARET NJERI KAMAU ……………………….............1ST APPLICANT/PLAINTIFF** **MARY WANGARI KIMEMIA……………………………….2ND APPLICANT/PLAINTIFF** **VERSUS** **PETER KAMAU MURURI .....................................................RESPONDENT/DEFENDANT** **(Administrator of the Estate of Julia Waithira Karatu).** **JUDGMENT** 1. In the originating summons dated 21-4-2022, the Plaintiffs seek the following reliefs against the Defendant. 2. **A declaration that Margaret Njeri Kamau and Mary Wangari Kimemia are bona fide purchasers for value of the land known as Loc. 2/Kangari/2886 comprising 1.5 acres, suit property, and that the said land does not form part of the estate of Julia Waithira Karatu.** 3. **Specific performance of the sale agreement dated 15-3-99 between the deceased Julia Waithira Karatu and Charles Kimemia pertaining to the sale of the suit land.** 4. **Specific performance to execute requisite transfer documents in favour of the 1st and 2nd Plaintiffs and in default of appearance by the Defendant, the Deputy Registrar of this Honourable Court do execute the transfer documents in favour of the Plaintiff with regard to the suit property.** 5. **An order restraining and or injuncting the Defendant by himself, his agents, servants and or other persons acting for him from interfering with the 1st and 2nd Plaintiffs’ peaceful possession of the suit property and or alienating, selling, transferring and or dealing with the suit property in any manner.** 6. **In the alternative to 1,2 and 3 above, a declaration that the title name of Julia Waithira Karatu (deceased) in respect to the suit property has been extinguished by the 1st and 2nd Plaintiffs adverse possession thereof for a period of more than twelve years and that the 1st and 2nd Plaintiffs have become entitled by adverse possession to the suit land.** 7. **An order that the District Land Registrar Murang’a do register the 1st and 2nd Plaintiffs as the absolute proprietors of the suit land.** 8. **In the alternative to (3) and (6) above the District Land Registrar Murang’a be directed that the order herein shall be an instrument of transfer of ownership of the whole suit property from the Defendant to the 1st and 2nd Plaintiffs.** 9. **The costs of the suit shall be in favour of the 1st and 2nd Plaintiffs.** AND for the determination of the following questions. 1. **Whether the 1st and 2nd Plaintiffs are bonafide purchasers for value of the suit property from one Julia Waithira Karatu (now deceased).** 2. **Whether the 1st and 2nd Plaintiffs are, in the alternative to the above, entitled to the suit property by way of adverse possession.** 3. **Whether the Defendant should execute a transfer and do all acts necessary to convey the said title of the suit property to the 1st and 2nd Plaintiffs and in default of the Defendant doing so, the Deputy Registrar of this Court be ordered to execute all the necessary documents to enable such transfer and registration in favour of the 1st and 2nd Plaintiffs.** 4. **Whether the 1st and 2nd Plaintiffs are entitled to the prayers sought hereinabove.** 5. The Plaintiffs’ case is as follows. Firstly, the suit land is registered in the name of Julia Waithira Karatu. Secondly, on 15-3-1999, Julia Waithira Karatu, now deceased, sold one acre of the suit land to Charles Kimemia Ng’ang’a, the husband of the 2nd Plaintiff. The purchase price was Kshs. 200,000/=. At the time of the sale agreement, Charles Kimemia had already paid Julia Kshs. 78,100/=. The balance was Kshs. 121,900/=. The sale agreement which was written in Kikuyu language was signed by both parties and witnessed by Joseph Githuku Njigu who was the assistant chief for Kangari location. On 28-9-1999, Charles Kimemia added Kshs. 17,260/= to the partly paid purchase price leaving a balance of Kshs. 93,740/=. The land was to be subdivided after the balance of Kshs. 93,740/= was paid to Julia. Earlier on 18-3-1999 the first Defendant gave Charles Kimemia Kshs.65,000/= to give Julia Waithira for the purchase of half an acre of land from Julia. The balance was Kshs. 35,000/=. On 26-3-1999, the first Defendant gave the balance of Kshs. 35,000/= to Charles Kimemia. The 1 ½ acres was to be shared between Charles Kimemia and the 1st Defendant. The sharing was in the ratio of 1 acre to Charles Kimemia and half an acre to the 1st Plaintiff. The first Plaintiff was present when Charles Kimemia gave the installments to Julia Waithira. Charles Kimemia paid the balance that he owed to Julia before he himself passed away on 12-11-2000 leaving his widow, the second Plaintiff herein. Thirdly, pursuant to wrong advise, the Plaintiffs instituted Succession Cause No. 3098 of 2007 as the cousins of the deceased Julia Waithira Karatu and not as creditors of the estate. The grant was confirmed after which the Plaintiffs got their respective shares of ½ acre and 1 acre respectively. Fourthly, in the year 2020, the grant issued to the Plaintiffs was revoked at the behest of Joseph Ng’ang’a Muiruri as the administrator of the estate of Julia Waithira Karatu. By then the Plaintiffs had been on the suit land for a total of 21 years. They have grown tea on the land whereby they have been deriving their livelihoods. Fifthly, as at 13-8-2020, the value of the suit land was Kshs. 1,905,600/=. Sixthly, Charles Kimemia did not have sufficient money to pay for the 1 acre agreed between him and Julia Waithira. It was agreed that the remaining ½ acre would be sold to the first Plaintiff hence the two payments of Kshs. 65,000/= and Kshs. 35,000/= made on 18th and 26th March 1999 respectively. By the time of the death of Julia, she had been paid the full purchase price and had handed over the title deed to Charles Kimemia. Sadly, both died before the suit land could be transferred to the purchasers. Finally, the Defendant refused to recognize the Plaintiffs as creditors of the estate of the deceased and instead proceeded to destroy their investments on the suit land by uprooting tea bushes, entering the suit land with goons, surveying the land and threatening violence against the Plaintiffs. It is for the above stated reasons that they filed this suit seeking the above stated orders. 6. In support of their case, the Plaintiffs filed the following evidence. 7. **Supporting affidavit by the 2nd Plaintiff dated 21-4-2022.** 8. **Witness statement by the 1st Plaintiff dated 21-4-2022.** 9. **Witness statements by the 2nd Defendant, Joseph Githuku Njigu and Hezekiah Mwangi Kihoro.** 10. **Copy of register for the suit land.** 11. **Copy of sale agreement dated 15-3-1999.** 12. **Copy of limited grant in Murang’a P&A case No. 475 of 2016.** 13. **1st Plaintiff’s record of cash payment to Charles Kimemia.** 14. **Copy of list of cash payment to Julia Waithira Karatu.** 15. **Copy of valuation report dated 13-8-2020.** 16. **1st and 2nd Plaintiffs copies of KTDA advise slips, bank statement, title deeds and photographs.** 17. **Copy of title deed for L.R. No. Loc.2/Kangari/2641.** 18. **Copy of letter dated 4-3-2026.** 19. **Copy of title deed for L.R. No. Loc. 2/Kangari/2887 and copy of its green card.** 20. **Copies of KTDA advise slips, bonus founder share certificate and a permit to operate a tea nursery.** 21. The defence by the Defendant is as follows. Firstly he is the administrator of the estate of Julia Waithira Karatu who is his aunt and sister to his mother Wambui Mururi. Since Julia did not have a child, the Defendant was close to her since his childhood. In 1984, when the Defendant’s grandfather, Karatu Githinji died, Julia Waithira inherited his estate as per Succession Cause No. 278 of 1990. She took both Peter Kamau and Joseph Ng’ang’a as her children and lived with them. They also lived with their grandmother Mary Karatu who died in the year 2003. Peter Kamau later went to live and work in Naivasha. Secondly, the Plaintiffs thought that both Julia and Mary Karatu had no living relatives and that is why they fraudulently acquired the suit land by lying to the Court that they were cousins of Julia. The grant issued to them was revoked on this ground. Julia had another sister called Pauline Wambui who also did not have children. It is only the Defendant’s mother who had children. Thirdly, the 1st Plaintiff owns L.R. No. Loc.2/Kangari/2887 which neighbours with the suit land. The Defendant did not damage any tea bushes or cut down trees. All that he did was to place a boundary to separate the two parcels. The Plaintiffs are intermeddlers in the estate of Julia Waithira and they have not occupied the land. Instead they have been trespassing thereon and illegally picking the tea bushes planted by Julia and her parents after chasing away the Defendant and his family. Tea No. MK 0020011 belonged to Julia Karatu. The Plaintiffs have destroyed and burnt a barbed wire fence belonging to the Defendant’s family which cost Kshs. 450,000/= to construct. They should be ordered to pay the Defendant Kshs. 2 Million for fraud and the costs incurred by the Defendant. For the above reasons, the Defendant prays for the dismissal of the Plaintiffs’ suit with costs. 1. In support of his case, the Defendant filed the following evidence. 2. **Witness statements by Peter Kariuki, Beth Magiri and Samuel Macharia.** 3. **Copies of rulings in Nairobi Succession Cause No. 3098 of 2007 and No. 1372 of 2013 and grant in Murang’a SRM Court Succession Cause No. 278 of 1990.** 4. **Replying affidavit dated 1-8-2025 by Peter Kamau Mururi.** 5. **Copy of undated receipt issued by Kangari Satelite Hardware.** 6. **4 photographs** 7. **An unclear OB report.** 8. **Copy of surveyors letter dated 8-4-2026.** 9. **7 unclear photographs of tea bushes, trees and a man.** 10. At the trial on 12-11-2025, 10-2-2026 and 21-4-2026, the two Plaintiffs, Hezekiah Mwangi and Charles Njigu testified on the side of the Plaintiff while Samuel Macharia, Peter Kariuki and Beth Magiri testified on the part of the Defendant. Both sides testified as per their pleadings. They did not deviate from whatever is written in their witness statements and affidavits. It came out in cross-examination of P.W.1 that Julia Waithira Karatu died on 12-5-1999 yet the sale agreement dated 15-3-1999 and produced as an exhibit by the Plaintiffs shows that on 28-9-1999 Charles Kimemia paid Julia Waithira Kshs. 17,260/=. Another thing that came up in cross-examination of the 2nd Plaintiff is that Mary Karatu did not live on the suit land. She is also alleged to have told the 2nd Plaintiff to demolish her house on a different land so that the 2nd Plaintiff and others could rebuilt it for her near their home. Since she had nobody to care for her, the 2nd Plaintiff moved to her house to take care of her. According to Hezekiah Mwangi (PW 3),Mary Wanjiru Karatu is buried on the suit land or on a different parcel that has a house and there is no house on the suit land. 11. Counsel for the parties filed written submissions dated 4-6-2026 and 10-7-2026 respectively. The issues identified by the Plaintiffs’ counsel were as follows. 12. **Whether the Plaintiffs are bona fide purchasers for value and therefore entitled to the suit land.** 13. **Whether the Plaintiffs have in the alternative acquired the suit land by adverse possession.** 14. **Whether the succession court’s judgment defeats the present claim.** 15. **Whether fraud must be specifically pleaded and strictly proved.** 16. **Whether the Defendant should be compelled to transfer the suit property.** 17. **Whether the Plaintiffs are entitled to the reliefs sought.** The Defendant’s issues are not as clear as the Plaintiffs’. They appear to me to be as follows. 1. **Whether the alleged sale agreements confer any legal rights upon the Plaintiffs.** 2. **Whether a claim based on contract can be brought after the expiry of six(6) years in view of Section 4(1) (a) of the Limitation of Actions Act.** 3. **Whether a purchaser can simultaneously claim as a purchaser of land and an adverse possessor.** 4. **Whether the Plaintiffs are guilty of intermeddling in the estate of a deceased person.** 5. I have carefully considered all the evidence adduced in this case by both sides including the witness statements, the supporting and replying affidavits, the documents and the testimony at the trial. I find that the issues as identified will resolve the dispute. 6. Regarding the Plaintiffs’ first issue, I am not satisfied that the Plaintiffs are bona fide purchasers for value for a number of reasons. Firstly, there is no evidence that that Julia received the full purchase price for the one acre that she was selling to the second Plaintiff’s husband. The only seemingly credible evidence is that on 15-3-1999 she received Kshs. 78,100/= from Charles Kimemia for the purchase of 1 acre. The said agreement is purported to be thumb printed by Julia Waithira. Secondly, there is no other evidence that any other amount was received by Julia or her mother Mary Wanjiru Karatu. The alleged payment of 17,260/= does not have the acknowledgement by thumbprint by either mother or daughter. Thirdly, having died on 12-5-1999, Julia could not have received any further payment after this date. It is therefore not proved that the balance of Kshs. 121,900/= was ever paid to Mary, Julia’s mother. Fourthly, there is no sale agreement anywhere between the first Plaintiff and Julia or Mary Karatu. The only evidence that the 1st Plaintiff filed was her own declarations that she gave money to Charles Kimemia to give to Julia. This was on 18th and 26th March 1999. These declarations are not acknowledged anywhere by Charles Kimemia, Julia or her mother Mary Kiratu. They are not supported by any sale agreement for half an acre of the suit land. There ought to be such an agreement duly signed by the seller and the buyer. I find that there was no valid sale of 1 ½ acres of the suit land by the registered owner or her mother to any of the Plaintiffs or the 2nd Plaintiff’s husband. 7. As for the Plaintiffs’ second issue, there is lack of clarity as to the date of entry on the suit land, the date when permission was given by Julia or Mary Karatie, the date the permission was withdrawn, the date Joseph Ng’ang’a Mururi came to the land and whether he was resisted by the Plaintiffs and why they would do that if they were occupying the suit land without force. Neither the witness statements by the Plaintiffs nor their affidavits bring out these crucial aspect of when the unauthorized occupation began and when the twelve (12) statutory years ended. In the case of **Mtana Lewa Vs. Kahindi Ngala Mwagandi Civil Appeal No.56/2014,** the essentials of adverse possession were laid out as occupation of another’s land without force, without secrecy and without permission of the registered owner. In this case actual, open, exclusive, continuous and uninterrupted possession for at least 12 years without the owner’s permission have not been proved. 8. It is my finding that the judgment in the Succession Cause does not defeat the present claim. While the Succession Court is concerned with the determination of a deceased person’s beneficiaries, ascertainment of the assets and liabilities of the deceased’s estate, appointment of personal representatives, confirmation of grants and distribution of the estate among the rightful beneficiaries, the Environment and Land Court is concerned with occupation, title and use of the land. The Succession Cause usually proceeds on the assumption that the property in question belongs to the deceased. The land court does not make any such assumption. It deals with who owns the land and what interests exist in it, even beyond the title. Since the Succession Court could not deal with these questions as per **Article 162(2) (b)** of the Constitution, it is within the exclusive jurisdiction of this court to deal with adverse possession which is concerned with use and occupation. These issues were never addressed by the Succession Court because under **Article 165 (5) (b)** of the Constitution, it had no jurisdiction to deal with what this Court is dealing with now. 9. In answer to the fifth issue, it was incumbent upon the Defendant to plead fraud. Order 2 rule 10(1) (a) of the Civil Procedure Rules requires that particulars of fraud be pleaded. It provides **10(1) “ Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing-** 1. **Particulars of any misrepresentation, fraud, breach of trust…”** The Defendant whose pleadings have mentioned the word “counter claim” only once in paragraph 18 of the replying affidavit dated 1-8-2025, has not counterclaimed. Under Order 37 rule 19 of the Civil Procedure Rules, there is room for conversion of an originating summons into a plaint – giving room to the Defendant to file a defence and counter claim. The Defendant did not, at any time ask to file a defence and counterclaim. Finally, where fraud is pleaded, it must be proved to the standard set in the case of **Ndolo vs. Ndolo Civil Appeal No. 128 of 1995.** In that case, the Court of Appeal held that where a party pleads fraud, that party must prove fraud to a standard higher than on a balance of probabilities but not beyond reasonable doubt as in criminal cases. 1. The Defendant should not be compelled to transfer the suit land to the Plaintiffs for the reasons already given in paragraphs 9, 10 and other reasons. The Plaintiffs were not able to answer many questions that were asked to them during cross-examination by the Defendant’s counsel. The unanswered questions include the following. Where are the graves of the deceased George Karatu, his wife Mary Wanjiru and their daughter Julia Waithira? Where is their homestead? Where are their earthly remains? Where did Julia Waithira and Mary Wanjiru live, if not on the suit land? Where is their other land that the Plaintiffs talked about it? Who occupies it now that they are no more? Why was Ng’ang’a’s fence burnt? Failure by the Plaintiffs to answer the above questions satisfactorily or at all cast serious questions on their credibility and the handling of the property of the two sickly and poor ladies without any relatives near them in their last days on earth. As much as the Plaintiffs may be commended for caring for the two ladies in their last days, their failure to answer the above questions leaves a lingering doubt on why they were not candid in their witness statements and in cross-examination. Finally, there is the issue of lying in the succession cause that the late Julia Karatu was their cousin when this was not the case. Having lied on the succession cause, they could have lied in this case as well and failure to address the questions seriously undermines their credibility as witnesses. 1. Having found against Plaintiffs in the 1st, 3rd and 5th issues, it is my finding that the Plaintiffs are not entitled to the orders sought. 2. I will only very briefly deal with the Defendants issues. In regard to the first issue, I find the sale agreements could confer legal rights on the Plaintiffs if they did not suffer the deficiencies enumerated in paragraph [9] of this judgment. Since they are deficient, they do not confer any legal rights on the Plaintiffs. This finding covers the Defendant’s second issue. 3. It is my finding that a purchaser of land can claim the land purchased both as a purchaser and as an adverse possessor. The facts of the case may disclose that the original entry was with permission if that permission was for a limited period. After the permission ends and the purchase does not leave and is not asked to leave by the vendor, time for adverse possession could start running. In this case the Plaintiffs lack clarity on when the permission began, when it ended and when Ng’ang’a Mururi came back to claim his family’s land. 4. Since intermeddling is primarily within the jurisdiction of the Succession court, I will not dwell on it here because it is also my finding that the Plaintiffs’ claim against the Defendant fails. I will leave the issue of intermeddling to the Succession Court. 5. In conclusion and for the reasons already given, I find **no merit** in the Plaintiffs suit. I dismiss it with costs. I also find that their occupation of the suit land is inconsistent with the Defendant’s title thereto. I therefore direct that they vacate the suit land within a period of sixty (60) days. **It is so ordered.** **Dated, signed and delivered virtually at Murang’a this 20th day of July, 2026.** **M. N. GICHERU** **JUDGE** **Delivered online in the presence of:-** **Court Assistant - Jackline** **Plaintiff’s Counsel – Miss Wangui h/b for Mr. Ndegwa** **Respondent’s Counsel – Mr. Kahuthu**