https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4130

Njeru v Njiru (Enviromental and Land Originating Summons E002 of 2020) [2026] KEELC 4130 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 4130 (KLR) Republic of Kenya In the Environment and Land Court at Embu Enviromental and Land Originating Summons E002 of 2020 A Kaniaru, J June 30, 2026 Between Lydia Kina Njeru Plaintiff and Misheck Ireri Njiru Defendant Judgment 1.The dispute herein relates to ownership of what was initially land parcel No. Kyeni/Kigumo/2097 which is now sub-divided into land parcels Kyeni/Kigumo/7846, 7847, and 7848. The plaintiff – Lydia Kina Njeru – is claiming ownership as a disseissor. For that reason, she impleaded the defendant – Misheck Ireri Njiru – before the court via an originating summons dated 9/9/2020 and filed on 10/9/2020. That originating summons was later amended, re-dated 14/4/2021 and re-filed on 16/9/2022. The defendant is the registered owner of the land. The plaintiff seeks a declaration that the defendant’s title to land parcels No’s Kyeni/Kigumo/7846, 7847 and 7848 has been extinguished as she has acquired the land by way of adverse possession. She wants the land to be registered in her name. She would like the court to direct the Land Registrar, Embu, to cause such registration without requiring production of the original title deeds. 2.It is said that the Plaintiff has openly, peacefully and as of right been in occupation of land parcel No. 2097 now subdivided into Kyeni/Kigumo/7846, 7847 and 7848 since 1975 and therefore she has become entitled to the same by way of adverse possession. She avers that the original land parcel No. 2097 was registered in the name of her late husband and that she does not know how the Defendant became the current registered owner. 3.The Defendant filed a replying affidavit dated 16.10.2020 and averred that the crucial issue for determination was who was the legal owner of land parcel No. 2097 and whether the transfer of the land to him was legal. He stated that the proper legal process was followed in the transfer of the land to him. He averred that the Plaintiff had failed to disclose that the land had been the subject of various litigation in different courts thus making this suit res judicata. 4.The suit proceeded for hearing on 22.11.2023 and the Plaintiff testified as PW1. She adopted her witness statement as her evidence in chief. She produced in evidence certificates of official searches for land parcels No. 7846-7848, the green card for land parcel No. 2097, and a bundle of photographs. 5.She stated that in 1975, she settled on land parcel No. 2097 and at the time, the land was registered in the name of her late husband Njeru Njoka. She contended that she did not know how the Defendant came to be registered as the owner of the suit land which has now been subdivided. She averred that she lives on the suit land with her whole family and that the Defendant is not in occupation of any portion thereof. She further said she has extensively developed the land by planting indigenous trees, mango trees, bananas and that she cultivates other food crops. She averred that the Defendant has never interfered with her occupation of the said parcels of land since the year 1975. 6.On cross examination, she stated that she did not bury her late husband on the land because when they went to the mortuary to collect his body, it was not released to them as certain people including the Defendant objected to him being buried. She denied having any knowledge of a case filed in Nyeri between the late Njeru Njoka and one Evaline or that the court issued a prohibitory order to be placed on the suit land. She stated that she was not aware that the land was to be auctioned or that there was a caution placed on the suit land in 1993 by one Paul Nyaga Munyi. 7.On re-examination, she stated that she had never had a case with the Defendant over the suit land. 8.PW2 was Margaret Mbeere Njiru. She adopted her written statement as her evidence in chief. She stated that she has known the Plaintiff for over 50 years and that the Plaintiff has occupied the suit land parcels with her family for those years without interruption. She stated that the Plaintiff’s husband was the original registered owner of the land and that he died in May 2019. She further stated that when he was about to be buried, the Defendant rushed to Court in Runyenjes and filed a suit seeking orders to restrain the Plaintiff from burying him on the suit land and therefore the Plaintiff was restrained from burying her husband’s remains. She stated that the Defendant has never occupied or utilized the suit lands. 9.PW3 was Beatrice Wanja Kaveti. She adopted her written statement as her evidence in chief. She stated that she has known the Plaintiff for close to 25 years as they are neighbors and that the Plaintiff and her family have lived on the suit land since she knew her without interruption from the Defendant. She stated that the Defendant filed a case and obtained orders restraining the Plaintiff from burying her husband who died in 2019 on the suit land. She stated that the Plaintiff has constructed a home on the suit land, planted indigenous trees, mango trees, avocado trees, bananas and other food crops. 10.She averred that she has never seen the Defendant’s family utilizing the suit lands and that the Defendant started claiming he owns the suit lands in 2019 when the Plaintiff’s husband died. 11.The Defendant, Misheck Ireri Njiru, testified as DW1. He also adopted his written statement as his evidence in chief. He testified that the disputed land was his, having bought it from the late Njeru Njoka and that he had all the documents to confirm it. He stated that the land measured 0.55Ha and that whereas he started the purchase process in 1995, he only got the title deed in 2015 as there was a prohibitory order registered on the land as well as a caution. He averred that the land had also been sold to another party, one Paul Nyagah Munyi who had placed the caution and that he had to refund him the purchase price. 12.He further stated that he was using a portion of the land whereas the Plaintiff was using the other portion and that he had tried in vain to evict the Plaintiff from the suit land. He produced in evidence a sale agreement and acknowledgements for payment, a letter dated 09.09.1981, transfer documents, a judgement and a ruling, and a letter of transfer of shares. 13.On cross examination, he stated that the Plaintiff was aware that he was buying the suit land at the time as she was receiving the money. That the Plaintiff was living on the land with her children at the time he was purchasing the land. He stated that he has used a portion of the land since 1995 and grown avocado trees and mangoes, among other things. He stated that he had never sued the Plaintiff for eviction. On re-examination, he stated that the Plaintiff accompanied them to the Land Control Board and never objected to the land being sold to him. 14.DW2 was Peter N. Kariti who also adopted his written statement as his evidence in chief. He stated that he is the secretary of Kariru Irrigation Self Help Group since 1996 and that he comes from Runyenjes Sub County. He recalled that on 23.03.1996, the late Njeru Njoka in the company of the Defendant visited his office, where he was in the company of other officials, and informed him that he had sold land parcel 2097 to the Defendant and therefore his shares for the said land be transferred to the Defendant having been fully paid. 15.He stated that the late Njeru Njoka confirmed that position in a letter dated 23.03.1996 which he duly signed. He stated that from then, they transferred the shares as directed and that since 2008 the Defendant was elected as the Chairperson of the group and is duly registered as the shareholder of land parcel 2097. He produced in evidence the letter dated 23.03.1996. 16.On cross examination, he stated that the Plaintiff lives on the suit land with her family. 17.The Court directed the parties to file written submissions. The Plaintiff filed submissions dated 28.10.2024. She submitted that the principles to be considered in determining a claim for adverse possession were set out in the case of Wambugu -vs- Njuguna (1983) KLR and that on possession, she had demonstrated that she has been in actual possession of the suit land for nearly five decades and even after the alleged sale took place. That since then, she had made improvements on the land which demonstrate clear physical control over the property. She submitted that she has been in exclusive possession as the Defendant paid the full purchase price over the land but failed to occupy or assert any control over the land for the period between 1995 and 2015. 18.She further submitted that her occupation has been open, obvious and notorious such that any diligent landowner or observer could see that the Plaintiff was treating the land as her own. She averred that the Defendant has taken no steps to interfere with or challenge her possession for at least 20 years until 2015. She stated that by the time the Defendant sought to effect the transfer in 2015, their rights had already been extinguished by the Plaintiff’s adverse possession. She maintained that she had proved all the elements of adverse possession and therefore she should be declared as the owner of the suit land. She proffered the cases of Chevron (K) Ltd -vs- Harrison Charo Wa Shutu (2016) eKLR, Hosea -vs- Njiru & Others (1974) EA 526. 19.The Defendant filed submissions dated 23.10.2024 and submitted that the 12 year statutory period for claims of adverse possession had not lapsed since the Defendant was registered as the proprietor of the suit land. He submitted that despite the whole transaction starting in the year 1994 when the first agreement was made, he did not take possession of the suit land as it was encumbered as shown in the green card of the land. He averred that having obtained registration on 27.08.2015 it was clear that time for purposes of adverse possession could only start running at that time. He proffered the case of Sophie Wanjiku John -vs- Jane Mwihaki Kimani (Nairobi ELC Case No. 490 of 2010) to support that position. 20.He submitted further that the Plaintiff could not claim that she had acquired the suit land by way of adverse possession and at the same time claim that the Defendant holds the suit land in trust. He submitted that the suit herein is res judicata as the matter had been heard and determined by a court of competent jurisdiction in ELC Case No. 15 of 2019 at Runyenjes when the Plaintiff’s husband died and they wanted to bury him on the suit land. 21.He maintained that the Plaintiff had not satisfied the requirements to be declared to have become entitled to the suit land by way of adverse possession. He urged that the suit be struck out with costs. Among other cases that he cited in support of his submissions were the authorities of Mbeyu Wa Ngome & Another -vs- Patani Virpal & 2 others (2015) eKLR, Mary Igandu Kigotho -vs- Michael Wang’ombe Gatitu (2018) eKLR and Mtana Lewa -vs- Kahindi Ngala Mwangandi (2015) eKLR. 22.Having considered the Originating Summons, the response made to it and the parties submissions, I find that the issue for determination is whether the Plaintiff has become entitled to land parcel Kyeni/Kigumo/2097 now subdivided into Kyeni/Kigumo/7846-7848 by way of adverse possession. 23.But first, the Court must determine the issue of whether the suit is res judicata as raised by the Defendant. The Defendant contends that the matter was previously determined in Runyenjes SPM Case No. 15 of 2019 between Misheck Ireri Njiru and Ndwiga Njoka (the deceased’s brother). A careful consideration of the record shows that the suit in Runyenjes concerned an application for a permanent injunction to restrain the burial of the late Njeru Njoka on the suit land. In contrast, the present suit is an Originating Summons seeking orders of adverse possession over land parcel Kyeni/Kigumo/7846, 7847 and 7848 (formerly Kyeni/Kigumo/2097). The issues now before this Court concern ownership and acquisition of title through adverse possession, which is a distinct and different cause of action. 24.For a matter to be res judicata under Section 7 of the Civil Procedure Act, the former suit must involve the same parties or parties claiming under them, the same subject matter, and the same issue directly and substantially in issue, and must have been finally determined by a court of competent jurisdiction. In the present case, although the subject matter relates to the same parcel of land, the parties are not the same and the cause of action is different from that in the Runyenjes case. Accordingly, the issue of this suit being res judicata is not established. 25.On the issue of adverse possession, the law under Section 13 (1&2) of the Limitation of Actions Act provides:“1)A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of Limitation can run (which possession is this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act 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 cease to be in adverse possession, the right of action is no longer taken to have accrued and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.” 26.In the case of Mtana Lewa -vs- Kahindi Ngala Mwagandi [2015] eKLR as cited in Otwoma -vs- Ombele (Environment & Land Case 13 of 2021) [2022] KEELC 2522 (KLR) (10 May 2022) (Judgment) the court of Appeal defined adverse possession as:“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action of the owner. The essential prerequisites being that 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.” 27.It follows that in order for a person to succeed in a claim for adverse possession, he must prove use and occupation or in other words possession of the land, with the knowledge of the owner and such use and occupation must not be broken or interrupted for a period of at least twelve years. The possession must also be open and notorious with the intention to defeat the registered owner’s title. 28.In this case, it is not disputed that the Plaintiff has been on the suit land since about 1975. She averred that she entered and remained on the land as the wife of the original registered owner, the late Njeru Njoka. Her occupation was therefore derived from her husband’s proprietary rights. The record further shows that the land was registered in the name of Njeru Njoka on 21.12.1978. 29.The Defendant’s position is that although there was a sale arrangement in respect of the suit land entered into with the late Njeru Njoka in 17.10.1994, transfer to him was not effected until 2015. He stated that the transaction remained ongoing, as payments towards the purchase price were continuing up to as late as 2014. He produced acknowledgements of payment of Kshs. 45,000/= on 27.01.1995, Kshs. 300,000/= dated 12.02.2014 and Kshs. 274,000/= dated 05.05.2014, which confirm that the transaction was still in progress and was only completed on 27.08.2015, which is when he was registered as proprietor of the suit land. He further produced duly executed transfer forms by the late Njeru Njoka, a Land Control Board consent, and evidence of payment of stamp duty, all pointing to compliance with the legal requirements for transfer. There is no evidence on record from the Plaintiff which challenged the authenticity of these documents. 30.In my view, the Plaintiff’s occupation of the suit land, as demonstrated, cannot be said to amount to adverse possession for the relevant period between 1975 and 2015. This is because, during the period that she was occupying the suit land, the land was still registered in the name of her late husband. Her occupation could therefore not in law have been adverse to the Defendant’s title as the Defendant had no registered interest in the land at that time. Time for purposes of adverse possession could therefore only begin to run from 27.08.2015 when the Defendant was registered as proprietor. And for the period before the defendant became the registered owner, the plaintiff was obviously not an adverse possessor against her own husband. 31.From 27.08.2015 to the date of filing of this suit on 10.09.2020, the statutory period of twelve (12) years had not lapsed. The defendant became the registered owner in the year 2015. This suit was filed in the year 2020. Obviously, it is less than twelve (12) years counting from the year 2015 to 2020. My finding therefore is that the plaintiff has not proved adverse possession and I hereby dismiss her case with costs to the defendant. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KITUI THIS 30TH DAY OF JUNE, 2026 PURSUANT TO NOTICE DATED 17/6/2026.A. KANIARUJUDGE- ENVIRONMENT & LAND COURT, KITUIIn the presence of,Court Assistant – MusyokiPlaintiff – AbsentDefendant – AbsentMogaka for DefendantM/s Kamotu for M/s Muthoni Ndeke for Plaintiff