https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4918

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT CHUKA** **ELC (OS) CASE NO. E002 OF 2023** **PHILIPINA KANYUA..*.*..........................*............*1ST PLAINTIFF** **PAULINA KARURU...........................................2ND PLAINTIFF** **CATHERINE KABIRU.......................................3RD PLAINTIFF** **JEDIDA KANGARIA.........................................4TH PLAINTIFF** **=VERSUS=** **MOSES MURITHI KAMENDI.................................DEFENDANT** **JUDGMENT** **Introduction** 1. The four plaintiffs in this suit are daughters of the late **Runcwe Ncundu** [*hereinafter referred to as* ***“the late Ncundu”***]. In 1993, land parcel number **South Tharaka/Tunyai “A”/777**, measuring 5.38 hectares [***the suit land***], was surveyed as a subdivision out of land parcel number **South Tharaka/Tunyai “A”/420** and was registered in the name of the late Ncundu. Subsequent to that, the suit land was transferred to the defendant on 15/11/1993. 2. On 20/3/2023, the four daughters of the late Ncundu took out an originating summons dated 14/12/2022 in which they invited this court to determine various questions revolving around their alleged acquisition of title to the suit land through adverse possession. They urged the court to find that they had acquired title to the suit land through adverse possession. The said originating summons is what falls for determination in this Judgment. The key issue to be determined in the originating summons is whether the plaintiffs have acquired title to the suit land through adverse possession. Before I analyse and dispose the issue, I will briefly outline the parties’ respective cases. **Plaintiffs’ Case** 1. The plaintiffs case is contained in: (i) the originating summons; (ii) the affidavit dated 14/12/2022 sworn by **Philipina Kanyua** in support of the originating summons; (iii) the witness statement of Philipina Kanyua dated 14/12/2022; (iv) the oral testimony of Philipina Kanyua; (v) the documents produced during trial; and (vi) the submissions tendered after conclusion of trial. 2. In summary, the case of the plaintiffs is that the suit land belonged to their late father and was transferred to the defendant in November1993. Despite acquiring title to the suit land in 1993, the defendant never bothered to take possession of the suit land. From 1993 up to the time of taking out the originating summons, the plaintiffs were the ones utilizing the suit land. They contend that the possession of their suit land has all along been adverse to the title of the defendant, adding that they have been in adverse possession of the suit land for more than 12 years. 3. During trial, the plaintiffs led evidence by Philipina Kanyua who testified as PW1. She adopted the contents of her affidavit dated 14/12/2022 and her witness statement of even date. She produced the following documents: (i) copy of the title relating to the suit land; (ii) copy of their late father’s burial permit; (iii) three photographs showing their developments on the suit land; and (iv) sketch map showing the respective portions occupied by the four of them. 4. In summary, her evidence was that they entered the suit land in 1975. At that time, their grandfather and their father were alive. The defendant was registered as proprietor of the suit land in 1993. At the time the defendant was registered as proprietor of the suit land, they [the plaintiffs] were in occupation of the suit land. They continued to occupy the suit land up to the time of instituting this suit. 5. In her evidence during cross-examination, she stated that she got married in the same neighbourhood in 1986 and she continued to utilize her portion of the suit land. She stated that the four of them had been planting crops and had planted trees on their respective portions, adding that they had a water tank on the suit land. 6. The plaintiffs filed written submissions dated **3/2/2026** through ***M/s******Murango Mwenda & Co. Advocates*.** Counsel for the plaintiffs submitted that the respondent failed to file any response to the originating summons despite being granted several opportunities by the Court. Counsel contended that although the respondent initially challenged the suit through a preliminary objection, the objection was dismissed and no further response was filed. Counsel argued that the plaintiffs' claim remained uncontroverted and should be treated as undefended. 7. On the merits of the claim, counsel submitted that the plaintiffs were daughters of the original registered owner of the suit land and had been in possession of the suit land since 1996 when their father allocated the land to them. Counsel argued that although the plaintiffs did not reside on the land, they had continuously cultivated it and planted mango trees on the land for over 12 years. Counsel relied on the decision in ***Damon Abudho Agola -vs- Angelina Atieno Ojwang & Another (2018) eKLR*** and contended that exclusive cultivation constitutes sufficient possession for purposes of adverse possession. Counsel urged the Court to find that the plaintiffs had acquired title to the suit land by adverse possession and to award them costs of the suit. **Defendant’s Case** 1. The defendant did not file a response to the originating summons between 9/10/2023 [the date when they filed a notice of appointment] and 29/1/2025 [the date when Eboso J was seized of the case]. On 29/1/2025, this Court [Eboso J] directed parties to file and exchange single paginated and indexed bundles containing pleadings, witness statements and documentary evidence within 21 days. The defendant did not bother to file a response to the originating summons despite the above window. Consequently, the originating summons was heard without any formal response by the defendant. The defendant was nonetheless allowed the opportunity to cross-examine the plaintiffs’ witness. 2. In their subsequent written submissions, the defendant argued that the plaintiffs had failed to prove adverse possession of the suit land. The defendant pointed out that the plaintiffs had failed to tender expert evidence, survey report and evidence of occupation, adding that the plaintiffs had admitted that they did not reside on the suit land. It was the case of the defendant that the plaintiffs had failed to discharge their burden of proof. 3. On the effect of his failure to file a response to the originating summons and lead evidence, the defendant argued that unchallenged pleadings in themselves do not constitute proof of the factual pre-requisites required by the law. Citing Sections 107 -109 of the Evidence Act, the defendant argued that the plaintiffs bore the burden of proving their claim. The defendant contended that the plaintiffs had failed to discharge the burden. The defendant urged the court to find that the plaintiff had failed to prove adverse possession. **Analysis and Determination** 1. The court has considered the pleadings and the evidence tendered by the plaintiffs. The court has also considered the submissions tendered on the originating summons. The key issue that falls for determination in this Judgment is whether the plaintiffs have acquired title to the suit land through adverse possession. 2. The common law doctrine of adverse possession has statutory underpinnings in **Sections 7 and 17 of the Limitation of Actions Act** which provide as follows: “**7. *An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person****”* ***“17. Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.”*** 1. The common law doctrine of adverse possession of land connotes possession which is inconsistent with and in denial of the title of the registered owner of the land. To establish adverse possession, the claimant must prove that he has had both the factual possession of the land and the requisite intention to possess the land [*animus possidendi*] for the prescribed uninterrupted period of twelve years preceding the initiation of proceedings for the vesting order. He must also demonstrate that the registered proprietor had knowledge [or the actual or constructive means of knowing] that he [the claimant/adverse possessor] was in adverse possession of the land. Further, possession must be continuous; it must not be broken or interrupted. 2. The ***Rt Hon Sir Robert Megarry and Sir William Wade*** in their book ***“The Law of Real Property, Eighth Edition (Sweet & Maxwell), page 1465 – 1466*** outline the essential elements of adverse possession as follows: ***“For a squatter to prove that he had factual possession he must show that:*** 1. ***He had an appropriate degree of physical control of the land;*** 2. ***His possession was a single possession: there can be a single possession by several squatters jointly, but not severally;*** 3. ***His possession was exclusive, a squatter cannot be in possession at the same time as a true owner; and*** 4. ***He dealt with the land in question as an occupying owner might have been expected to deal with it and no one else has done.”*** 5. The Court of Appeal defined adverse possession in ***Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR***as follows: ***“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity and in extent to show that possession is adverse to the title owner.”*** 1. The Court of Appeal outlined the following criteria for acquisition of title under the doctrine of adverse possession in ***Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another [2015] eKLR:*** “***First, the parcel of land must be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, lastly, he must have been in that occupation for a period in excess of twelve years having dispossessed the owner or there having been discontinuance of possession by the owner.”*** 1. The court is alive to the prevailing law on proof of a claim in civil proceedings. By dint of **Sections 107, 108** and **109** of the **Evidence Act,** the burden of proving the claim in this originating summons remained that of the plaintiffs. Failure by the defendant to file and serve a response did not constitute a discharge of that burden. Similarly, failure by the defendant to lead evidence did not constitute a discharge of the burden by the plaintiff. Did the plaintiffs discharge the burden through evidence? 2. The four plaintiffs led evidence by the 2nd plaintiff who testified as PW1. Her testimony was that, at the time the defendant was registered as proprietor of the suit land in 1993, they were in possession of the suit land. They continued to enjoy uninterrupted possession of the suit land from 1993 up to the time they instituted this suit in 2023. This was a period of 30 years. PW1 added that although they did not have their permanent residences on the suit land, they were in actual possession of the suit land through uninterrupted farming activities on their respective portions of the suit land. 3. The defendant elected not to file a response to the originating summons. As a consequence, he denied himself the right to lead *viva voce* evidence. Consequently, he did not tender any rebuttal evidence. In her testimony during cross-examination, PW1 remained steadfast that they had been in adverse possession of the suit land since 1993. 4. Counsel for the defendant pointed out that the plaintiffs admitted that they did not have residences on the suit land, and argued that in the absence of residences on the suit land, there was no proof of adverse possession. I do not agree with that view. Residence is not the only conclusive factual aspect of adverse possession. Farming activities on land by a trespasser to the exclusion of the real land owner property constitutes factual possession of the land by the trespasser. In ***Joseph Macharia Mwangi v Jonah Kabiru S/o Kabuthi [2013] KECA 245 (KLR),*** the Court of Appeal outlined the law as follows:- ***“Where possession is not adverse to the title of the owner, adverse possession cannot hold. Moving into another person’s land without such person’s consent and carrying out cultivation from time to time without showing that such cultivation was continuous and without interruption for 12 years may not meet the threshold under the doctrine of adverse possession. For that reason, going onto the land of another periodically to cultivate may not amount to adverse possession even where the total periods of cultivation may amount to 12 years unless it is shown that cultivation was conducted continuously from season to season and the trespasser had control of the land claimed throughout. It is important to emphasize that where possession is predicated on the fact of cultivation, it must be shown clearly that the claimant openly and continuously, from season to season, cultivated and had control of the land for 12 years or more with the knowledge of the owner but without the owner’s permission or consent.*** 1. It is clear from the above pronouncement that uninterrupted continuous cultivation of another person’s land would properly constitute adverse possession. Consequently, based on the uncontroverted evidence of PW1, the court is satisfied that on the balance of probabilities, the plaintiffs have proved their claim to the required standard. The result is that question numbers 1, 2, 3, 4 and 5 in the originating summons dated 14/12/2022 are answered in the affirmative. Question number 6 is also answered in the affirmative and the court hereby decrees that the suit land shall be subdivided and shared amongst the 4 plaintiffs as per the sketch map that was produced as Plaintiff Exhibit No 4 in the following ratios: (i) Philipina Kanyua – 2.02 hectares; (ii) Paulina Karuru – 1.91 hectares; (iii) Catherine Kabiru – 0.48 hectares; and (iv) Jedida Kangaria – 0.99 hectares. 2. On costs, institution of the present suit was a mandatory legal requirement under Sections 37 and 38 of the Limitation of Actions Act. Secondly, no formal response was filed to contest the claim. For the above two reasons, parties will bear their respective costs of the suit. **Disposal Orders** 1. In the end the court makes the following finding and orders:- 2. ***The court finds that the defendant was registered as proprietor of land parcel number South Tharaka/Tunyai “A”/777 [the suit land] on 15/11/1993.*** 3. ***The court finds that the plaintiffs have been in possession of the whole of the suit land for a period exceeding 12 years.*** 4. ***The court finds that the plaintiffs’ possession of the suit land amounted to adverse possession.*** 5. ***The court finds that the defendant’s title to the suit land has been extinguished in favour of the plaintiffs.*** 6. ***It is hereby decreed that the suit land shall be subdivided and registered in the names of the plaintiffs in the following ratios:*** ***(i) Philipina Kanyua – 2.02 hectares*** ***(ii) Paulina Karuru – 1.91 hectares*** ***(iii) Catherine Kabiru - 0.48 hectares*** ***(iv) Jedida Kangaria – 0.99 hectares*** ***(f) Parties shall bear their respective costs of the suit.*** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY** **OF JULY, 2026** **B M EBOSO [MR]** **ELC JUDGE**