https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3831

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND AT NAIROBI** **ELC E071 OF 2024 (OS)** **ALICE MERCY NJERI KINYANJUI - 1ST PLAINTIFF** **JACQUELINE J. WANJIKU KINYANJUI - 2ND PLAINTIFF** **JOY WANJIRU KINYANJUI - 3RD PLAINTIFF** **JOE MUCHAI KINYANJUI (**Suing as the - **4TH PLAINTIFF** Administrators of the Estate of **JOHNSON** **JOSHUA KINYANJUI [DECEASED])** **VS** **JANE WANJIRU THIONG’O (**Sued as the Administrators of the Estate of **DEDAN** **THIONGO KING’ANG’I [DECEASED]) - DEFENDANT** **JUDGMENT** **The background** 1. The Plaintiffs instituted this suit by way of originating summons dated 16/11/2024. The summons is expressed to be brought under the provisions of Order 37 Rule 1, 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act. The Plaintiffs seek the following orders against the Defendant: 2. A declaration be and is hereby made that the Plaintiffs have become entitled to ownership of all those parcels of land known as Title No. Nairobi Block 131/1248 a(Originally LR. No. Dagoretti/Uthiru/1248) and Title No. Nairobi/Block 131/1249 (Originally LR. No. Dagoretti/Uthiru/1249), by way of adverse possession, having adversely and uninterruptedly occupied the same for over 20 years. 3. A declaration be and is hereby made that the Defendant’s title to all those parcels of land known as Title No. Nairobi Block 131/1248 (Originally LR. No. Dagoretti/Uthiru/1248) and Title No. Nairobi/Block 131/1249 (Originally LR. No. Dagoretti/Uthiru/1249), have since been extinguished and/or invalidated by the Plaintiffs’ adverse possession thereof. 4. The Land Registrar, Nairobi Land Registry, be ordered and directed to delete the name of the Defendant, and register the names of the Plaintiffs in the place thereof, as the rightful proprietors of all those parcels of land known as Title No. Nairobi Block 131/1248 (Originally LR. No. Dagoretti/Uthiru/1248) and Title No. Nairobi/Block 131/1249 (Originally LR. No. Dagoretti/Uthiru/1249). 5. The Honourable Deputy Registrar of this Honourable Court be and is hereby directed and ordered to execute all documents necessary to effect the transfer and registration of all those parcels of land known as Title No. Nairobi Block 131/1248 (Originally LR. No. Dagoretti/Uthiru/1248) and Title No. Nairobi/Block 131/1249 (Originally LR. No. Dagoretti/Uthiru/1249), in the name of the Plaintiffs. 6. A declaration that, in light of the fact that the Plaintiffs have become entitled to be registered as proprietors of the suit properties, the Judgment dated and delivered on 11/10/2024 in Civil Suit No. MCELC No. E479 of 2023 is moot and/or invalid, and is therefore unenforceable. 7. That the costs of this suit be borne by the Defendant. **The Plaintiffs’ case** 1. The summons are based on the Plaintiffs' alleged actual and constructive physical possession, use, occupation and enjoyment of the suit properties from 2003 to date. They are supported by the affidavit of Alice Mercy Njeri Kinyanjui, a widow and co-administrator of the Estate of Johnson Joshua Kinyanjui [Johnson] with the other Plaintiffs herein, sworn on 16/11/2024. The deponent avers that the late Johnson Joshua Kinyanjui and the late Dedan Thiongo Kingangi [Dedan] were close associates with overlapping interests and dealings, including dealings in the suit properties herein. 2. She avers that in the year 2003, her deceased husband, Johnson Joshua Kinyanjui, openly, peacefully and notoriously took possession of the suit properties without the consent of the late Dedan Thiongo Kingangi and has remained thereon openly and uninterrupted to date. That the deceased Dedan Thiongo Kingangi did not interrupt or interfere with their adverse occupation and possession. 3. The deponent avers that while in possession of the suit properties, her late husband permitted the Kenya Assemblies of God Church (KAG) at Uthiru to use the suit properties for parking by its congregants. That the church took actual possession and occupation of the suit properties in the year 2007, fenced them off, and erected a structure thereon. That whereas the church continued with the said occupation, her deceased husband continued to pay land rates for the suit properties. She avers that subsequently; her deceased husband and the church executed a Sale Agreement on 5/5/2020. That, after his demise on 17/7/2021, they continued to pay land rates. 4. It is averred that, despite her deceased husband having acquired ownership of the suit property by adverse possession, the Defendant lodged a suit 19 years later, being MCELC No. E092 of 2022, against her deceased husband. That the said suit was, however, struck out for being instituted against a deceased person. Unrelenting, the Defendant filed another suit, being MCELC No. E479 of 2023, seeking declaratory orders of title, cancellation of the title in the name of her deceased husband, and registration of the same in their favour. In opposing the suit, the Plaintiffs herein raised a claim of adverse possession. The trial Court, by a Judgment delivered on 11/10/2024, determined the suit in favour of the Defendant and held that the late Dedan Thiongo Kingangi was the legal owner of the suit properties during his lifetime and that, at no point, did he sell them to the late Johnson Joshua Kinyanjui. Further, that the transfer of LR No. Dagoretti/Uthiru/ 1249 to the late Johnson Joshua Kinyanjui on 2/11/2004, after the demise of Dedan Thiongo Kingangi, was unprocedural and unlawful, as a transfer cannot be effected posthumously. That the trial Court further dismissed the Counterclaim on adverse possession for want of jurisdiction. The titles in favour of the late Johnson Joshua Kinyanjui in respect of the suit property were cancelled and reverted back to the late Dedan Thiongo Kingangi. 5. The deponent asserts that the late Johnson Joshua Kinyanjui and/or his administrators have enjoyed exclusive, non-permissive possession and occupation of the suit properties since 2003 and have put KAG Church in possession. That the instant suit is therefore merited on the grounds of an uninterrupted period of occupation of over 19 years; the entry and occupation of the suit properties were without the right and permission of the true owner; and the occupation was unequivocally exclusive, with unmistakable *animus possidendi* and a clear intention to exclude the owner. In addition, that despite the Judgment in Civil Suit No. MCELC No. E479 of 2023, the Plaintiffs have remained thereon. **Further Affidavits** 1. In further support of the summons, a number of KAG Church members of the Uthiru Branch filed their respective Further Affidavits. The Affidavits were sworn by: Rev. Samuel Njagi Charagu, Martha Wangui Ngobe, Alex Gichuhi Mwai, Simon Kamaru, Peter Maina Wambugu, Peter Njoroge Mungai and Evans Kuria Mukiri, all deponed on 10/9/2025. In summary, the deponents, who are members of the KAG Church Uthiru, save for Evans Kuria Mukiri, assert that the late Johnson openly, peacefully and notoriously took possession of the suit properties in the year 2003. That the deceased remained in physical, open, uninterrupted, actual and constructive possession and occupation thereof to date. The church offered to purchase the suit properties in the year 2003 for use as a car park. 2. The deponents aver that in 2007 the church took possession of the suit properties, but Johnson retained constructive possession. They assert that they have never seen the Defendant on the suit properties since 2003. That after taking possession, the church connected piped water and has employed guards to secure the suit properties. That the church has been using the premises for daily community work and social functions. That, in appreciation of Johnson’s claim to the suit properties, the church agreed to purchase the subject properties and executed a Sale Agreement on 5/5/2020. 3. The Court was further invited to take judicial notice of the Judgment delivered in ELC Civil Suit 1187 of 2015, in which the Defendant herein sued adverse possessors in respect of parcels Dagoretti/Uthiru LR Nos. 1245, 1246, 1248, 1249 and 1250. The Defendant’s claim was dismissed, and the Court found in favour of the adverse possessors, holding that they had acquired the respective parcels by adverse possession. The deponents therefore urged the Court to allow the Plaintiffs’ claim. **The Defendant’s Replying Affidavit** 1. The Defendant filed a Replying Affidavit dated 27/1/2025 in opposition to the summons. The Defendant avers that Dedan Thiongo and Johnson Joshua (both deceased) engaged in the real estate business, and that Johnson was Dedan’s right-hand man, who kept his title deeds in trust. She further avers that Johnson assisted Dedan in purchasing and subdividing LR No. Dagoretti/Uthiru/897, which was subdivided into the resultant suit properties. She also avers that one Reverend Charagu of KAG Church testified in MCELC No. 479 of 2023 and confirmed that, through the Letter dated 28/5/2007, Johnson released some of the title deeds to Dedan’s family. 2. The Defendant avers that Dedan passed away on 11/2/2004, leaving the title deeds and the original identity card in Johnson's custody. That they conducted a search of the suit properties on 2/4/2004, which showed both parcels registered in Dedan's name and both vacant. She states that Johnson took advantage of his possession of the original title deeds and the original identity card, and forged transfer documents for the suit properties, without the knowledge and/or consent of Dedan's estate. That Johnson transferred plot 1249 in his favour on 2/11/2004 and fraudulently executed a transfer document for plot 1248 in his favour, dated 3/11/2004. She asserts that there was no valid contract of sale, as Dedan was long dead at the time of execution of the transfers. 3. She avows that she was unaware that Johnson had transferred plot 1249 into his name until 2007, when she saw machinery parked on the plot. Upon inquiry, Johnson informed her that he was the owner of the said plot. She then conducted searches on both parcels on 28/8/2007 and realised that a title deed for 1249 had indeed been issued in favour of Johnson. She appointed advocates who issued a demand notice, and the trespass by the machinery ceased. However, Johnson joined the succession proceedings in respect of Dedan’s estate as a protestant, claiming ownership of the suit properties. KAG Church was also a protestant in the succession proceedings. The succession proceedings, Cause No. 676 of 2006, were stayed pending determination of the ownership dispute herein. 4. The deponent avers that despite the litigation history, Johnson entered into a sale agreement on 5/5/2020 with KAG Church on the premise that he was in the process of transferring plot 1248 in his favour and that the process would be completed in 180 days. The plots were sold with vacant possession. The church then fenced off the suit properties and started using them as a car park for its congregants. She then filed ELC No. E092 of 2022 for injunctive orders only, but it was dismissed as Johnson had passed on. She thereafter filed MCELC E479 of 2023, which was determined vide the Judgment of 11/10/2024 in her favour. The fraudulent transfer was consequently cancelled in favour of the estate of Dedan. The issue of adverse possession was left for the Environment and Land Court for determination. 5. The Defendant contends that possession began only in 2020, when the Church fenced off the suit properties, contrary to the Plaintiffs’ assertion that they took possession in 2007. She avers that it is evident that the parties have been litigating over the suit properties since 2007. She asserts that the sale of the suit properties to the Church was unlawful, as it amounted to intermeddling. **The evidence adduced** 1. The matter proceeded by way of viva voce evidence. The Plaintiffs called 6 witnesses whereas the Defendant testified on her own behalf in support of her case. 2. Alice Mercy Njeri Kinyanjui testified as PW 1. She relied on her supporting affidavit as her evidence in chief. She also produced the documents attached to her supporting affidavit as P Ex 1-11. The documents are: Grant of Letters of Administration issued on 17/5/2022; Memorandum of Understanding dated 24/3/1998; Land rates receipts and payment slips; Sale Agreement dated 5/5/2020; Pictures showing occupation by KAG Church; Copy of order issued in MCELC No. E092 of 2022; Grant of Letters of Administration Intestate issued on 17/3/2007; Plaint dated 15/11/2023 filed in MCELC No. E479 of 2023; Witness Statement dated 15/11/2023; Defence and Counterclaim dated 19/1/2024; Judgment delivered in MCELC No. E479 of 2023; Copy of Title for Plot 1248 in Dedan’s name; and copy of title deed for Plot 1249 in John’s name. 3. In cross-examination, PW1 stated that she was aware that her husband had entered into a Memorandum of Understanding with the late Dedan Thiongo. She averred that her deceased husband took possession of the land in 2003 and gave it to KAG Church in 2007. She further testified that, as at 2003, there were no developments on the land. When shown the Letter dated 28/5/2007, PW1 confirmed that the signature thereon was her late husband’s, although she was not aware of the dealings referred to therein. 4. It was her evidence that she was unaware that the land was vacant when she visited in 2004. She confirmed that the certificate of official search showed that the properties belonged to Thiongo. She further averred that she heard that her deceased husband had filed an objection in the succession proceedings of the Estate of Thiongo. PW1 further stated that, when they visited the land, there were building materials belonging to her husband and the church. 5. In reference to the Sale Agreement dated 5/5/2020, she averred that possession of the suit properties was to pass to the Church only upon receipt of the full purchase price. However, the Church was already using the property pursuant to the verbal agreement, which permitted them to use the suit properties for parking. 6. There was no re-examination of the witness. 7. PW2 was Reverend Samuel Njagi Charagu. He relied on his Further Affidavit, sworn on 10/9/2025, as his evidence in chief. He also produced the Judgment dated 15/6/2023, marked as P Ex No. 12. 8. During cross-examination, PW 2 stated that he represented the KAG Church as an objector in the succession case of Dedan Thiongo. He averred that although they fenced the land in 2007, the Agreement provided that they were to be given possession and parking fencing after payment of the Kshs. 5M deposit. He further averred that they placed the equipment on the land in 2007, with Johnson's permission. He added that the land was used to store equipment for the 2015 road construction. He maintained that they entered the land in 2007 but formalised the acquisition in 2020. Johnson occupied the land in 2003, whereas Dedan passed away in 2004. 9. In re-examination, PW 2 stated that he had not drafted the agreement. He confirmed that the church took possession of the suit properties in 2007 and constructed a structure thereon. 10. Evans Kuria Mukiri testified as PW 3. He relied on his Further Affidavit sworn on 10/9/2025 as his evidence in chief. 11. In cross-examination, PW 3 stated that he was appointed as the Nyumba Kumi elder in 1988 and has lived in the area for over 70 years. He averred that Johnson and Dedan are well known to him. However, he was not aware that Johnson was Dedan’s agent. He further stated that he was not aware of any succession wrangles between Johnson’s and Dedan’s families. He further stated that, at some point, materials were deposited on the land, but he could not say who stopped it. He averred that the church has been developing the land. 12. In re-examination, he stated that in 2003, before the church took over the property, Johnson cleared the land. The land was then immediately fenced off by the church. He confirmed that the church constructed a toilet and other structures on the land, as well as piping water thereon. 13. Peter Njoroge Mungai testified as PW 4. He relied on his Further Affidavit sworn on 10/9/2025 as his evidence in chief. 14. In cross-examination, PW 4 stated that he has worshipped at the said KAG Church for over 32 years. He averred that the church took possession of Plot No. 1246 in 2003 and fenced it in 2007, having obtained permission from Johnson. He also confirmed that the church is an objector in the ongoing succession cause for the estate of Dedan. He maintained that the church took possession in 2020 after the Agreement for Sale was executed. 15. Upon re-examination, PW 4 reiterated that there are structures on the land erected by the church. 16. PW 5 was Martha Wangui Ngobe. She relied on her Further Affidavit sworn on 10/9/2025 as her evidence in chief. 17. During cross-examination, PW 5 stated that the church took possession of 1248 and 1249 in 2020 for parking, although they had been using them since 2007 with Johnson’s permission. She averred that they were unaware of the suit in the High Court and that, if they had known, they would not have transacted in relation to the suit properties. 18. There was no re-examination of the witness. 19. Simon Kamaru testified as PW 6. He relied on his Further Affidavit dated 10/9/2025 as his evidence in chief. 20. In cross-examination, PW 6 testified that he joined the church in 2002. He stated that the church began using Plot No. 1248 in 2007, but was not aware of Plot No. 1249. He could not provide the history of the properties, as he was a constructor. He stated that he was informed of the transaction only by Reverend Charagu, PW 2 herein. 21. In re-examination, PW 6 stated that his evidence was based on his Affidavit on record. The Plaintiffs then closed their case. 22. The Defendant, Jane Wanjiru Thiongo, testified as DW 1 and the only Defence witness. She relied on her Replying Affidavit dated 27/1/2025 as her evidence in chief. She also produced the documents annexed thereto and marked as D Ex. Nos. 1-16. 23. In cross-examination, DW 1 referred to her assertions in the reply affidavit regarding the subdivision and the orders issued in MCELC E479 of 2023. She further stated that the suit properties were the subject of suit namely, ELC 1187 of 2015. She asserted that her late father did not give Johnson the land. She further averred that in 2007, Johnson placed machinery on the land without Thiongo's permission. It was her evidence that she did not issue a demand notice to Johnson. She averred that she did not file a suit contesting ownership of the land. Although she stated that she has been paying land rates and rents, she had no documents to prove her assertions. According to her, the land ought to be vacant, as a Court order prevents any interference with the suit properties. 24. In re-examination, the Defendant stated that Johnson never indicated in his Letter dated 28/5/2007 that he was the owner of Plots Nos. 1248 – 1250. She further stated that he never informed her that he had given the land to the church. She averred that she caused a demand notice to be issued to Johnson. She stated that Johnson was not in occupation of the land from 2007 to 2013. She further stated that in 2020 she noticed cars on the property, only to be informed that Johnson had permitted them to be there. 25. The Defendant contended that trespassers cannot claim adverse possession. She informed the Court that she does not know who altered the land records in 2023. She maintained that the land was vacant until 2020, when it was fenced. 26. With that, the Defendant closed her case. **The Plaintiffs’ submissions** 1. Parties filed their respective written submissions. The Plaintiffs’ submissions are dated 14/11/2025. According to the Plaintiffs, the first issue for determination is whether they had factual possession/physical control of the suit properties. The Plaintiffs argue that they have adduced sufficient evidence proving that they had actual possession and physical control of the disputed properties. They argue that in the suit before the Lower Court, MCELC No. E479 of 2023, the Defendant herself alleged that the Plaintiffs had encroached upon and occupied the properties, which is presented as an admission that the Plaintiffs were in possession and control of the land, thereby preventing the Defendant from later denying that fact. Further, the Court, in its Ruling delivered on 13/2/2025 while issuing status quo orders in favour of the Plaintiffs, recognised the Plaintiffs’ possession of the suit properties. Further, the Defendant herein, while testifying in ELC No. 1187 of 2015, stated that there were permanent and semi-permanent structures standing on the suit plots. Finally, the evidence and testimonies adduced by the Plaintiffs’ witnesses consistently demonstrate that the late Johnson took possession of the suit properties in 2003 and placed the KAG Church into possession in 2007. The witnesses also maintained that the church fenced off the properties, constructed a kitchen, installed piped water, and has been using the properties for parking and various church activities. Therefore, the Defendant’s prior statements and the Court’s findings confirm the conclusion that the Plaintiffs were in factual possession and control of the disputed land. 2. The second issue is whether the Plaintiffs had the intention to possess the suit properties (animus possidendi). The Plaintiffs aver that the Defendant produced a Court order dated 25/7/2013, issued in High Court Succession Cause No. 676 of 2006, relating to Dedan’s estate, which stayed the confirmation of the grant pending verification of ownership of the suit properties. That the Defendant, having admitted that Johnson lodged a protest in the cause asserting actual ownership and possession of the suit properties, as well as receipts for payment of land rates, unequivocally demonstrates Johnson’s intention to possess the suit properties, animus possidendi. 3. Thirdly, the question is whether the Plaintiffs’ possession was open, notorious, and without force and without the owner’s permission. It is argued that the Defendant’s own testimony, admitting that the Plaintiffs had “encroached” on the land, serves as evidence that their occupation was without her permission and therefore adverse to her interests. Further, the Plaintiffs’ witnesses allegedly demonstrated that the occupation was open and notorious, with the land openly used and even involved in a sale agreement with the KAG Church, indicating there was no secrecy or concealment. In addition, the Defendant presented no evidence that the Plaintiffs obtained or maintained possession through force or unlawful coercion. The Plaintiffs argue that their possession was open, notorious, peaceful (non-forceful), and without the true owner’s consent, thereby meeting all the requirements for a claim of adverse possession. 4. The final issue is whether the Plaintiffs’ possession and occupation were continuous and uninterrupted for the statutory period of 12 years. The Plaintiffs submit that the Defendant conceded her absence from the country in 2003 and could not verify the Plaintiffs’ possession at that time. The Defendant did not even adduce any evidence of any eviction attempt and acknowledged that her first suit against the Plaintiffs was filed only in 2022, 19 years later. Further, the Plaintiffs’ witness, Evans Kuria Mukiri, a long-term resident and head of the *Nyumba Kumi* cluster in Uthiru, testified that the Plaintiffs’ occupation of the suit properties had been open, notorious, and peaceful since 2003. The witness also noted that the late Johnson was recognised by the community as the owner who cleared the bush at the properties at the community’s request in 2003. The Defendant called no witness in rebuttal. Consequently, the Plaintiffs’ uninterrupted possession for over twelve years is submitted to be overwhelming, unchallenged, and sufficient to establish adverse possession under Kenyan law. **The Defendant’s submission** 1. The Defendant submits that the contested issues are possession and whether the Plaintiffs have had possession of the property long enough to warrant a claim of adverse possession. On these issues, the Defendant submits that the Plaintiffs have not had such possession. It is contended that the Plaintiffs' evidence shows that the suit property was in vacant possession prior to the sale agreement dated 5/11/2020. The Defendant avers that she has explained that this is indeed true, as she only noticed the properties being used as a car park in 2020. That it has only been 5 years since Johnson directed KAG church to pay him Kshs. 5 M and thereafter to fence off the properties and use them as a car park. Of the 5 years, 3 years have been spent in Court, as parties herein were litigating the issue of possession and specifically whether Orders of injunction should issue against the trespass by the Estate of Johnson. 2. It is submitted that the doctrine of adverse possession requires a party to have physical, actual, uninterrupted, peaceful and open possession for 12 years or more. The Plaintiffs have produced sufficient evidence to show that they had such possession of the properties only between 5/5/2020 and 17/3/2022, when the Defendant filed ELC Case E092/2022 seeking an injunction against Johnson’s trespass. She argues that the Limitation of Actions Act provides that the right to claim ownership under the doctrine of adverse possession accrues after the claimant has remained in possession for more than 12 years. In conclusion, the Defendant submits that the Plaintiffs have failed to produce sufficient proof that the Estate of Johnson (deceased) has acquired ownership of the suit property. **Analysis and Determination** 1. Having reviewed the originating summons, the supporting affidavit thereto, the Replying Affidavit in response, the evidence tendered (both oral and documentary), and upon consideration of the written submissions, the authorities relied on, and the relevant provisions of the appropriate and enabling laws, this honourable Court has framed the following issues for determination. These are: - 2. Whether the Applicants have proved that they have acquired the suit land by way of adverse possession. 3. Who should bear the Costs of the suits? **Whether the Plaintiffs have proved that they have acquired the suit land by way of adverse possession** 1. The Plaintiffs’ claim is for adverse possession. The Plaintiffs must prove the ingredients of adverse possession in order to benefit from the operation of the law. This process springs into action essentially by default or by the owner's inaction. The essential prerequisites are that the adverse possessor's possession is neither by force nor by stealth, nor under the owner's licence. The occupation must be adequate in continuity, publicity and extent to show that possession is adverse to the title owner. 2. The principle of adverse possession is well settled under Limitation of Actions Act. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which states that: “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.” 1. The Limitation of Actions Act makes further provision for adverse possession at Section 13 that: “(1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under Sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land. (3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3), the land in reversion is taken to be adverse possession of the land.” Finally, Section 38 of the Act provides that: “Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” 1. The Court of Appeal in the case of Ruth Wangari Kanyagia –vs- Josephine Muthoni Kinyanjui [2017] eKLR, while acknowledging that adverse possession is a common law doctrine, restated this by citing the Indian Supreme Court decision in the case of Kamataka Board of Wakf –vs- Government of India & Others [2004] 10 SCC 779, where the Court stated thus: “In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession by clearly asserting title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continues. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.” 1. The ingredients of Adverse Possession were also discussed by the Court of Appeal in the case of Mtena Lewa –vs- Kahindi Ngala Mwangandi [2005] eKLR where it was held that: “Adverse Possession is essentially a situation where a person takes Possession of land, 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 12 years.” 1. It is trite law that the adverse possessor's possession must be continuous, open, and uninterrupted for a period of not less than 12 years, and that over that period the adverse possessor must engage in acts in relation to the property that are inconsistent with the rights of the true owner. The acts must be hostile to the true owner's rights and interests. 2. It is also a well-settled principle that a party claiming adverse possession must prove that this possession was “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession should not have been obtained by force, in secret, or without the owner’s authority or permission. See the Court of Appeal case of Grace Wairimu Sorora –vs- Chaka Ltd. & Others 2017 eKLR. 3. As regards the elements of proving adverse possession, the Court of Appeal in the case of Richard Wefwafwa Songoi vs Ben Munyifwa Songoi [2020] eKLR explained as follows: “A person who claims adverse possession must inter alia show: (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the fact of his possession was known to the other party; (d) for how long his possession has continued; and (e) that the possession was open and undisturbed for the requisite 12 years.” 1. As stated earlier, the Plaintiffs claim ownership of the suit property by adverse possession. Their case is that the deceased Johnson Kinyanjui took open, peaceful, and notorious possession of the suit properties in 2003 without the consent of the late registered owner, and that such possession has continued uninterrupted to date. It is further alleged that Johnson permitted the Kenya Assemblies of God Church (KAG), Uthiru, to use the suit properties from 2007. That the church fenced off the suit properties and erected a structure thereon. That whereas the church continued with the said occupation, they continue to pay land rates for the suit properties. Subsequently, the deceased Johnson executed a Sale Agreement on 5/5/2020 with the church. 2. In Gabriel Mbui –vs- Mukindia Maranya (1993) eKLR, Kuloba J quoted Gicheru, JA, in Kweyu v Omuto (Civil Appeal 8 of 1990) [1990] KECA 63 (KLR) case, that in deciding the issue of adverse possession, the primary function of a Court is to draw legal inferences from proved facts, and those inferences are matters of law. Accordingly, while possession is a matter of fact, any proposition reached from that fact as to whether the possession is or is not adverse is a legal conclusion drawn from the findings on the facts. The adverse character of the possession must be established as a fact. It cannot be assumed as a matter of law from mere exclusive possession, even if that possession has been for twelve or more years. In addition, there must be facts showing a clear intention to hold adversely, and under a claim of right. De facto use and de facto occupation must be shown. 3. For adverse possession to succeed, the entry and occupation must be with, or maintained under, some claim or colour of right or title, made in good faith by the stranger seeking to invoke the doctrine of adverse possession as against everyone else. In other words, the intruder must have some apparent title, the appearance or semblance of title but not the reality of it, for the expression “colour of title” in law means that which is title in appearance but not in reality. He must have with him his own apparent right, which affords him some semblance of title under which he claims to found his occupation of the land independently of anyone else’s power. If he has no semblance or shadow of right to be on the land, he cannot rely on adverse possession. 4. It is apparent that the late Johnson Kinyanjui and the late Dedan Thiongo executed a Memorandum of Understanding dated 24/3/1998 for the sale of parcels 1248 and 1249. These two parcels were to be excised from the mother title known as LR Dagoretti/Uthiru/897, where, as noted in Paragraph F, the late Dedan had earlier purchased a portion from the original proprietor, Wanjiru Jackson. As noted by the Learned Magistrate, it is surprising that Dedan, who was already an owner, was purchasing it from the late Johnson. The Plaintiffs have not stated what became of the said agreement. 5. The Plaintiffs have neither explained nor adduced evidence as to how the late Johnson, after selling the half-acre portion from the mother title to Dedan, entered the very land adversely in 2003. It is unclear whether the late Dedan ever took actual possession of his purchased share before the subdivision. Further, in cross-examination, PW1 averred that her deceased husband took possession of the land in 2003 and gave it to KAG Church in 2007. She also stated that when she visited the land in 2003, it was vacant, with no developments thereon. There was no re-examination of this witness, so her cross-examination testimony was not controverted. 6. The burden of proof lay with the Plaintiffs to show how Johnson entered the land. No evidence has been adduced to show that Johnson’s entry was peaceful, open and continuous. If there was any development at all, it was not shown as of 2003, and the land was vacant at that time. Johnson’s possession can only be said to have been secret. It has not been shown that Dedan, who died a year later after Johnson’s alleged possession, had knowledge of it and did nothing about it. 7. Turning to the issue of whether Johnson’s possession of the parcels of land was peaceful for a statutory period of twelve (12) years. The Plaintiffs averred that, despite Johnson having acquired ownership of the suit property by adverse possession, the Defendant lodged a suit 19 years later, being MCELC No. E092 of 2022, against him. That the said suit was, however, struck out for being instituted against a deceased person. Unrelenting, the Defendant filed another suit, being MCELC No. E479 of 2023, seeking declaratory orders of title, cancellation of the title in the name of her deceased husband, and registration of the same in their favour. 8. The record shows that the Plaintiffs herein opposed the claim and, in their defence, adduced a title deed in the name of Johnson. The title deed, which has also been adduced herein, shows that Johnson became the registered owner of LR No. Dagoretti/Uthiru/ 1249 on 2/11/2004. As for LR No. Dagoretti/Uthiru/ 1248, the Plaintiffs herein adduced a transfer document dated 3/11/2004 in the name of Johnson. In their Counterclaim, the Plaintiffs herein sought to be registered as the proprietors of the said parcels. 9. The trial Court, by a Judgment delivered on 11/10/2024, determined the suit in favour of the Defendant. It held that the late Dedan Thiongo Kingangi was the legal owner of the suit properties during his lifetime and that, at no point, did he sell them to the late Johnson Joshua Kinyanjui. Further, the transfer of LR No. Dagoretti/Uthiru/1249 to the late Johnson Joshua Kinyanjui on 2/11/2004, after the demise of Dedan Thiongo Kingangi, was unprocedural and unlawful, as a transfer cannot be effected posthumously. The trial Court also dismissed the Counterclaim for adverse possession for want of jurisdiction. 10. In our laws, the mere fact that for twelve years or more no suit has been brought against the squatter, or that for twelve years the squatter has been in actual possession of the land, is not enough to make the Limitation of Actions Act operative; possession for twelve years cannot, in itself, make the Act come into operation against an owner of land. The Act is operative only where there has been exclusive possession for the statutory period by the person to be protected by the statute; it must be shown that the title holder has been dispossessed or has discontinued his possession of the land for the statutory period. The person relying on the statute must prove that he was in exclusive possession and that the true owner was out of possession. It is not sufficient to prove that he enjoyed the use of the land in common with the true owner. See Gabriel Mbui v Mukindia Maranya [1993] eKLR. 11. Because the Plaintiffs have not proved how Johnson entered the subject parcels, time cannot be said to be running for the purposes of calculating adverse possession. 12. In addition, even if for argument's sake, Johnson took possession in 2003, from 2004 to 2022, he occupied the subject plots as a registered owner, at the lower Court, the Plaintiffs adduced a title in respect of parcel 1249, registered in Johnson’s name on 2/11/2004. As for parcel 1248, the Plaintiffs adduced a Transfer Form dated 3/11/2024. If, in fact, Johnson took possession in 2003, as alleged, the time could only start running from 11/10/2024, after the Lower Court cancelled Johnson’s title. This suit was filed on 16/11/2024. Clearly, the statutory period of 12 years had not lapsed. 13. The doctrine of adverse possession is premised on the idea that a person occupies land openly, exclusively, and continuously for the prescribed statutory period, without the legal owner’s permission, and in a manner hostile to the owner’s rights. By contrast, a claim as a beneficiary is a claim to legitimate ownership of the property. The two positions are at variance. 14. In the case of Saju vs Baker & 2 Others (Environment and Land Case Civil Suit E008 of 2023) [2023] KEELC 21837 (KLR) (23 November 2023) persuasively stated: “Suffice it to state that one cannot purport to hold and/or lay a claim as an heir, beneficiary and/or administrator on one hand; and on the other hand, purport to stake a claim founded on adverse possession. Notably, the claim of beneficial interests and/or ownership, cannot co-exist with one based on adverse possession. To be precise, a claim for adverse possession is antithetical to one based on administration [based on a Grant of Probate].” 1. In the case of Richard Wefwafwa Songoi vs Ben Munyifwa Songoi [2020]eKLR, the Court of Appeal held as follows: “The appellant testified that he started using the suit property when he was given by his father. In the same vein, the appellant claims title to the parcel by way of adverse possession. The appellant’s claim is founded on title by way of gift from his father. He prevaricates and lays claim to the land parcel by way of adverse possession against the respondent. The pleas of title and a claim for adverse possession are mutually inconsistent and exclusive.” 1. From the above decisions, a claim for adverse possession cannot co-exist with ownership. One cannot adversely occupy that which one owns. 2. It is also trite that, in claims of adverse possession, a claimant must first concede the legality of the title held by the registered owner, as otherwise the claim of adverse possession would be legally unsustainable. In reaching this position, the Court adopts the holding of the Court of Appeal decision in Catherine Koriko & 3 Others vs Evaline Rosa [2020] eKLR, where the Court stated as follows: “In Haro Yonda Juaje vs Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR it was stated: (29) One cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. 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.” 1. In opposing the suit before the lower Court, the Plaintiffs sought registration as owners of the suit properties in their Counterclaim. They challenged the Defendant’s title, arguing that the deceased Johnson was the registered owner of the suit properties. The dispute was therefore about ownership of the suit properties. 2. As noted earlier, the Lower Court, in its Judgment delivered on 11/10/2024, determined the suit in favour of the Defendant herein and held that the late Dedan Thiongo Kingangi was the legal owner of the suit properties during his lifetime and that, at no point, did he sell them to the late Johnson Joshua Kinyanjui. In the absence of a pending appeal against that decision, the dispute over ownership of the suit properties was settled. The Plaintiffs cannot now claim adverse possession of what they owned all along. The Plaintiffs ought to have chosen one cause of action; either dispute the ownership of the properties by appealing the Lower Court’s decision or claim adverse possession. 3. I also note a prior suit, namely ELC 1187 of 2015. The suit was filed by the Defendant against Peter Ndungu Gicheru, Serah N. Muchene and Joseph Mungai Gicheru. The Defendant’s cause of action was trespass by the said Defendants in relation to parcels of land known as Dagoretti/Uthiru LR Nos. 1245, 1246, 1248, 1249 and 1250. The Defendants, in rebuttal, claimed adverse possession over the said properties. Judgment was entered on 15/6/2023 by Justice Lucy Mbugua. The Honourable Judge disallowed the Plaintiff’s case and allowed the Defendants’ counter-claim in respect of 1247 and 1248. The Court further directed that parcels Dagoretti/Uthiru 1247 and 1248 be registered in the names of the Defendants, who had meritoriously proved a claim of adverse possession. 4. It is clear that the impugned Judgment was never varied by the Court of Appeal. This means that ownership of LR No. Dagoretti/ Uthiru/1248 was already determined by the Environment and Land Court. The Plaintiffs are therefore inviting the Court to review the decision of a Court of concurrent jurisdiction in relation to Plot No. 1248, an action to which the law frowns. In any case, despite being aware of the decision in ELC 1187 of 2015, the Plaintiffs chose not to join the Defendants therein to the instant proceedings. It is against the principles of natural justice for a registered proprietor of the suit property to be condemned unheard. 5. It follows, then, that the Plaintiffs, despite knowing that ownership of parcel 1248 had already been determined, decided to institute the instant proceedings. The Defendants in ELC 1187 of 2015 are the rightful owners and not the Defendants herein. It is therefore my finding that the Defendant herein has been wrongly sued in respect of parcel 1248, as the issue of ownership had already been determined by a Court of competent jurisdiction. 6. **Final orders for disposal** In the circumstances, I ultimately make the following final disposal orders: * 1. The Originating Summons dated 16/11/2025 be and is hereby dismissed. 2. The Defendant shall have costs of the suit. 1. It is so ordered. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Mr. Mohammed H/B for Mr. Otieno for the Plaintiffs 2. Ms. Maina for the Defendant 3. C/A – Ms Kendi/Ms Yvette Njoroge