https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5202

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC OS CASE NO. 442 OF 2017** **JANE WAHU KOMU …………..………….........………………… 1ST APPLICANT** **NAHASHON MUTURA KOMU ………........………….………. 2ND APPLICANT** **JAMES MUNGAI KOMU ………………........…………….……. 3RD APPLICANT** **HANNAH NJAMBI KOMU** **…………….......………..…..…….. 4TH APPLICANT** **VERSUS** **NANCY WAITHIRA ……..…….......………………………………. RESPONDENT** **JUDGMENT** 1. The Applicants commenced this suit by an Originating Summons dated 30th September 2015. The suit was initially filed in Milimani, Nairobi as ELC Case No. 989 of 2015 before it was transferred to Thika after the ELC court was established in Thika where it was given the number ELC Case No. 442 of 2017. The Applicants seek the determination of the following questions 1. *Whether having been in continuous and uninterrupted possession and occupation of land parcel L.R KIAMBAA/ WAGUTHU/1578 for a period in excess of 12 years the Applicants have now acquired prescriptive rights to the title thereto by adverse possession.* 2. *Whether the Land Registrar Kiambu should be ordered and directed to delete the name of the defendant and register the names of the Applicants in place thereof absolutely;* 3. *Whether the Respondents should meet the costs of this suit.* 2. The Originating Summons is supported by the affidavit of Jane Wahu, the 1st Applicant sworn on her own behalf and on behalf of the other Applicants on 30th September 2015. 3. In the said affidavit she deposes that the Applicants have lived on the suit property for 18 years and their occupation has been without force, interruption or any attempt to evict them. They have carried out developments on the suit property and they seek to be registered as the owners thereof. 4. Upon being served with the Originating Summons, the (Peter Gathigi Gchie who was the 1st Respondent filed a Replying Affidavit sworn on his own behalf and on behalf of his co-Respondent, Nancy Waithira on 29th January 2016. He averred that on 6th September 2007 they filed **Kiambu Succession Cause No.175 of 2007, In the Estate of Peter Njoroge Gachie** in the capacity of being his brother and sister respectively, with a view to administering his estate which included the suit property. 5. On 28th January 2008, the 1st Applicant’s husband and father to the 2nd 3rd and 4th Applicants namely GEOFFREY KOMU MUNGAI filed an objection to making the grant. The case was litigated and a Certificate of Confirmation of Grant was issued to the Applicants on 15th October 2009. 6. He further averred that the 1st Applicant’s husband being aggrieved by the decision of the lower court filed Summons for Revocation of Grant in the High Court claiming ¼ of an acre out of the suit property as a bona fide purchaser. The matter was heard and determined and the court dismissed the application for want of merit. 7. He averred that the said Geoffrey Komu Mungai, the husband to the 1st Applicant and father to the 2nd, 3rd and 4th Applicants had now decided to revive the same matter through his wife and children by filing a claim for adverse possession. 8. It is the Respondent’s contention that the Applicants were aware of the happenings all along and that they know that Geoffrey Komu Mungai lost all the legal disputes over the suit property. 9. He avers that the Applicants have been living on the suit property illegally with a view to acquiring the same by adverse possession and they have developed it without the Respondent’s consent and contrary to the warnings by the Respondents to desist from doing so. 10. He adds that if the orders sought are granted, they will be contrary to the orders issued by the court in HCCC No. 625 of 1999 and Kiambu Succession Cause No. 2206 of 2009. 11. The suit was set down for hearing and each party testified and closed their case. The Applicants’ case was heard by my predecessor Hon. Justice Eboso on 13.8.2023 while I took the evidence of the Respondents on 28.1.26. 12. Thereafter the parties were directed to file their final submissions and both parties field their submissions accordingly. **Plaintiff’s Case** 13. Nahashon Mutura Komu (2nd Applicant) testified as the sole witness for the Plaintiffs (Applicants). He adopted his witness statement dated 9.3.2018 as his evidence in chief. He told the court that he lives on the suit property with his mother (1st Applicant) and the 3rd and 4th Applicants who are his siblings. It was his testimony that nobody had ever attempted to evict them. He stated that he did not know the Respondent. 14. In cross-examination he stated that he was the son of Geoffrey Komu Mungai. He said they entered the suit property on the basis of a sale agreement between his father and one Peter Njoroge Gachie. He said that he was not aware that there was a case between his father and Peter Gachie over the suit property. 15. He said his father had moved out of the suit property in 2004 after he disagreed with his mother. After being shown the documents relating to the Objection proceedings, he admitted that they had sued the Respondent because they wanted to sub-divide the suit property. He admitted that his father’s Objection was dismissed by the High Court in 2014 and therefore this case was filed after his father had lost the objection application in the High Court. 16. Nahashon contradicted himself by claiming that his father did not purchase the suit property from Peter Gachie. He said they were claiming a portion measuring 0.1 Hectares of land parcel number 1578. He told the court that his father was not aware that they had filed the instant suit as he had lost contact with him. 17. He further testified that he was not aware that the suit property had been sub-divided and transferred. **Defence Case** 18. Nancy Waithira Njogu the Respondent (Defendant) who testified a s DW1 relied on her witness statement dated 4.4.23. and produced the exhibits in her List and bundle of documents dated 17.4.23 which were marked as Defendant’s exhibits 1-25. 19. In cross-examination, she stated that the suit property was occupied by Geoffrey Komu who is the husband of the 1st Applicant. She said she had the title to the suit property although she was aware that it had been sub-divided. 20. She testified that the land initially belonged to her father. She said that Geoffrey Komu had been ordered to vacate the suit property after sub-division but he refused to do so. She confirmed that the Plaintiff has a permanent house on the suit property which he lives in. He uses part of th suit property for farming. She told the court hat Peter Njoroge Gachie was her brother but he passed away. 21. Upon cross-examination, DW1 confirmed that there had been previous cases over the suit property in Nyeri, Nairobi and Kiambu courts. She confirmed that her father was ordered to vacate the suit property. She informed the court that they sued Geoffrey Komu because they wanted him to vacate the suit property. She confirmed that Jane Wahu Komu (1st Plaintiff) is the wife of Geoffrey Komu and that she is claiming he same parcel of land which they were ordered to vacate. 22. Harrison Mbugua Gathigi testified a DW2. He told the court that Peter Gathigi Gachie was his late father. He explained that the suit property was initially registered as land parcel no. Kiambaa/Waguthu/1578 but it was subsequently sub-divided into 4 portions. He testified that the suit property is currently registered in the name of Nancy Waithira Njogu , Jacinta Wanjiku Kariuki, Hannah Mirigo Gachie and Teresa Nyakio Kariuku. The suit property which the Plaintiff is claiming is now known as Kiambaa/Waguthu/3133 and it was registered in the Defendant’s name on15.2. 2010. 23. DW2 testified that there had been several cases between the family of Geoffrey Komu and his late wife Jane Wahu Komu and the Plaintiffs but Geoffrey Komu lost all the cases. 24. It was his evidence that the Defendant could not evict Geoffrey Komu from the suit property as this case was still pending in court. He confirmed that Geoffrey Komu has constructed permanent houses on the suit property despite the Defendant’s letters to him to stop using their land. 25. He stated that Nahashon, James and Hannah do not reside on the suit property. He told the court that Jane Wahu Komu who was one of Geoffrey Komu’s wives was not buried on the suit property. 26. Upon cross-examination, DW2 stated that he was not party to the previous suits between the Defendants, Geoffrey Komu and Jane Wahu Komu. He stated that he did not have an interest in the suit property and he merely wanted the 1st Defendant who was his aunt to get here land back. He confirmed that Geoffrey Komu was alive and stated that in his witness statement he had erroneously referred to him as deceased. He concluded his evidence by stating that he attended the previous cases between the plaintiffs and Defendants as he was keen to find out what would happen. 27. The parties both filed their final submissions in compliance with the court’s directions. I will refer to the said submissions in my analysis. **ANALYSIS AND DETERMINATION** 28**.** Having considered the pleadings evidence on record and he parties submissions, the following issues arise for determination: 1. *Whether having been in continuous and uninterrupted possession and occupation of land parcel L.R KIAMBAA/WAGUTHU/1578 for a period in excess of 12 years the Applicants have now acquired prescriptive rights to the title thereto by adverse possession;* 2. *Whether the Land Registrar Kiambu should be ordered and directed to delete the name of the defendant and register the names of the Applicants in place thereof absolutely;* 3. *Whether the Respondents should meet the costs of this suit.* 29. It is not in dispute that the plaintiffs, particularly the 1st Plaintiff, have been in occupation of the suit property for a period in excess of 12 years. The Defendant and her witness confirmed that the 1st Plaintiff’s husband has constructed a permanent house on the suit property and that he has been living therein with his family. 30. What is in contention is whether the long period of occupation qualifies the plaintiffs to acquire prescriptive rights over the suit property. Although the Plaintiffs’ evidence is that they have been living on the suit property peacefully and openly without coercion for an uninterrupted period of more than 12 years, the Defendants vehemently dispute the peaceful nature of the said occupation. 31. In particular, both the Defendant and her witness categorically stated that there have been various cases in court between the Defendants and the 1st Plaintiff’s husband, one Geoffrey Komu. These include Kiamubu Land Tribunal Case No. 13 of 1999 between Geoffrey Komu Mungai and the late Peter Njoroge Gachie. The said case was in respect of land parcel no. Kiambaa/waguthu /1578. This is mentioned in Plaintiff’s Exhibit 1 which was annexed to the Supporting Affidavit as annexure PG 1. The said case was filed 2 years after the plaintiffs started staying on the suit property, a clear sign that their stay was not peaceful. 32. Other notable cases over the suit property include, Nairobi HC Civil Appeal No. 13 of 2002 Peter Njoroge Gachie v Geoffrey Komu Mungai which was dismissed on 20th November 2003; Kiambu Succession Cause No. 175 of 2007; High Court Succession Cause No. 2206 of 2009 where Geoffrey Komu Munga’s objection for revocation of grant and claim for ¼ of an acre was dismissed. 33. On realizing that his claim over the suit property had failed through the previous suits. Geoffrey Komu Mungai now advised his wife Jane Wahu Komu and his children Nahashon, James and Hannah to institute the instant suit. 34. I note from PW1 s evidence that he initially lied that his father had moved out of the suit property in 2004 after he disagreed with his mother. This evidence was contradicted by DW1 and DW2 who confirmed that Geoffrey Komu is the husband of the 1st Plaintiff and father to the 2nd, 3rd and 4th Plaintiffs and that he stays on the suit property. 35. Even though he started by stating that they had been staying peacefully on the suit property after being shown the documents relating to the Objection proceedings, PW1 admitted that they had sued the Respondent because they wanted to sub-divide the suit property. He admitted that his father’s Objection was dismissed by the High Court in 2014 and therefore this case was filed after his father had lost the objection application in the High Court. 36. The defendant expressly stated at paragraph 6 of her Replying affidavit that she instructed her advocates to write letters and notices to Geoffrey Komu Mungai warning him to desist from developing the suit property before the succession case was heard and determined. 37. In Kenya, the doctrine of adverse possession is rooted in Section 7 of the [Limitation of Actions Act](https://new.kenyalaw.org/akn/ke/act/1968/21), which prohibits the recovery of land after twelve years from the date the right of action accrued as follows: *“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.”* 38. In the case of I**brahim Wachira Karaguri v Mary Mwihaki Simon & Another ((2020)eKLR** the court while citing the Court of Appeal case of **Benjamin Kamau Murma & Others v Gladys Njeri C.A No213 of 1996** stated as follows: “*The combined effect of the relevant provisions of sections 7,13 and 17 of the Limitation of Actions Act , Chapter 22 of the Laws of Kenya is to extinguish the title of the proprietor of land in favour of an adverse possessor of the same at the expiry of 12 years of adverse possession of that land. The onus is on the person or persons claiming adverse possession…they have used this land which they claim as of right, nec vi, nec clam, nec precario (no force, no secrecy, no evasion)…. The possession must be continuous. It must not be broken for any temporary purpose or by any endeavors to interrupt it or by any recurrent consideration.”* 39. The main elements of adverse possession that a claimant has to prove include: *Actual, open exclusive and hostile possession of the land claimed. The statute proceeds on the premise that rights in land, though protected by registration, are not immune from the consequences of prolonged inaction. Where a proprietor fails, for the statutory period, to assert his or her right to recover land from a person in possession, the law intervenes not to reward occupation simpliciter, but to attach legal consequences to the neglect of the right of action.* 40. The statutory foundation of the doctrine of adverse possession is further found in sections 13, 17 and 38 of the [Limitation of Actions Act](https://new.kenyalaw.org/akn/ke/act/1968/21), which prescribe the legal consequences that follow upon the lapse of that period. Read together, those provisions establish a coherent scheme. Time begins to run when a right of action accrues, the proprietor's right to recover the land is extinguished upon the expiry of the limitation period, and the person in possession may thereafter seek an order vesting title in himself. 41. The consequence is that a claim for adverse possession does not arise merely from long occupation. The claimant must demonstrate possession that is actual, open, exclusive, continuous and adverse to the title of the registered proprietor for the statutory period. The burden of establishing those elements rests upon the person asserting prescriptive rights. 42. Over time, the courts have given content to those statutory requirements, identifying the characteristics of possession capable of maturing into title by operation of law. 43. In the instant case learned counsel for the Plaintiff relied on the case of **Wambugu v Mugi ( Environment and Land Case No.36 of 2015) (2022 KEELC4930 (KLR)** for the proposition that in order to acquire a title by way of adverse possession, the owner must have lost his rights to the land either by being disposed of it or by having discontinued his possession. Dispossession of the proprietor that defeats his title are acts which are inconsistent with the enjoyment of the soil for the purpose for which he intended to use it. 44. Additionally, Counsel relied on the case of **Mtana Lewa v Kahindi Ngala Mwangandi (2015) eKLR** where the court defined adverse possession 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 it is 12 years. The process springs into action essentially by default or inaction of eh owner. The essential prerequisites being that the possession of the adverse possessor is neither by force, or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”* 45. The totality of the evidence on record demonstrates that the plaintiffs’ occupation of the suit property does not meet the requirements of adverse possession. Whereas the Plaintiffs have occupied the suit property openly for a period of more than 12 years, their stay has been fraught with litigation over the same and it was by no means peaceful. 46. In the circumstances, the Plaintiffs have failed to prove that they are entitled to the suit property by way of adverse possession. The upshot is that the suit is dismissed with costs to the Defendants. **Dated, signed and delivered virtually this 21st day of July 2026.** **............................** **J. M ONYANGO** **JUDGE** **In the presence of :** 1. Mr. Njoroge for eh Plaintiffs 2. Mr. Gachoka for the Defendants