https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3888

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MILIMANI ELC L CASE NO. E008 OF 2023 (OS) ERNEST LUNGAHI MADENGWA ….…… PLAINTIFF/APPLICANT VERSUS ROSEMARY ATIENO HALA...1ST DEFENDANT/1ST RESPONDENT EQUITY BANK LIMITED .… 2ND DEFENDANT/2ND RESPONDENT JUDGEMENT 1. Through an Originating Summons dated the 19th August, 2023, the Plaintiff/ Applicant prays for judgement against the Defendants/Respondent for: a. A declaration that the title of ROSEMARY ATIENO HALA & EQUITY BANK LIMITED to the land parcel number NAIROBI/BLOCK 112/206 (suit land) has been extinguished by the ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 1 of 21 Plaintiffs Adverse Possession thereof for a period of more than 12 years in terms of the Limitations of Actions Act. b. That the Plaintiff has become entitled to Adverse Possession to the suit land in Runda Nairobi and registered under the Land Act in the name of the Defendant. c. An order that the Land Registrar Nairobi register the Plaintiff as absolute proprietor of land parcel Number NAIROBI/BLOCK 112/206 in place of the Defendants. d. That the Land Registrar Nairobi be directed that the order herein shall be an instrument of transfer of ownership of the whole suit land from the Defendants to the Plaintiff. 2. The Originating Summons (OS) was supported by the affidavit of the Plaintiff where he deposes that he has resided on the suit property together with his family since 2000 and never saw the 1st Defendant on the said suit property. He contends that the 1st Defendant has never lived nor utilized the suit property. He insists that he has been in continuous ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 2 of 21 occupation and possession of the suit property since 2000, a period in excess of the statutory twelve (12) years. He claims that he does not know the whereabouts of the 1st Defendant who owns the said suit property. Response 3. The 1st Defendant opposed the OS where she claims the purported OS lacks compliance of the rules and procedure governing suits of adverse possession and she is heavily prejudiced and unable to put up a proper defence. She makes no admission to the allegations made by the Plaintiff. 4. She avers that the Plaintiff entered the suit property as her employee when she was constructing on the said property. She explains that in the year 2000 when she was planning to move to the United States of America in pursuit of various ventures, the Plaintiff approached her and requested to be allowed to temporarily reside on the said suit property until ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 3 of 21 he secured employment. Further, that the Plaintiff pleaded with her to be allowed to stay as he had no place to go to, and she allowed him to stay on the said suit property on ex gratia basis. 5. She asserts that before relocating to the United States of America, she had started construction on the suit property since it was her home and insists that she had no prospects of relinquishing her possessory and/or ownership rights over the said property. She reiterates that on several occasions she sent her representatives and agents to visit the suit property who requested the Plaintiff to vacate but he always sought for more time, which requests she acceded to on a humane basis. 6. She explains that she vehemently and persistently reached out to the Plaintiff through phone calls and whatsapp messages through his number +254710271546 and demanded that he immediately vacates the suit property to ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 4 of 21 enable her finish construction and renovations. She contends that the Plaintiff is dishonest, guilty of perjury and has approached the court with unclean hands with the aim of stealing a march against her. Further, that he claims he does not know her nor her whereabouts, yet he was her employee and came to reside on the suit property as an employee. 7. The 2nd Defendant did not enter appearance nor defend the suit. 8. The Originating Summons was canvassed by way of viva voce evidence where both parties called witnesses. Evidence of the Plaintiff/Applicant 9. The Plaintiff as PW1 adopted his witness statement and testified that he entered the suit property in the year 1999 and did not know its owner. It was his testimony that he was walking in Runda and saw a property with an open gate and entered and resided therein todate. He testified that he has resided thereon with his family openly, uninterruptedly and ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 5 of 21 without interference from the 1st Defendant from 1999 todate. During cross examination, he denied knowledge of the 1st Defendant nor having met her but admitted that the Cell number 0710271546 belongs to him and that it was on whatsapp. He further admitted that he sent texts to the 1 st Defendant on the 3rd March, 2023 and 21st April, 2023. He further confirmed that the texts which were on page 12 of the 1st Defendant’s bundle were his. He insisted that he had resided on suit property from 1999 upto 2021 when the 1st Defendant sent someone called Phillip to remove him therefrom. 10. He further admitted having been in communication with 1st Defendant. He was aware there was a Charge to the 2nd Defendant over the suit property. He claimed that since people used to come to the suit property to threaten him, he requested the 1st Defendant to allow him to reside thereon. In re examination, he confirmed that between 2015 and 2017, there were representatives from 2nd Defendant who ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 6 of 21 came to the suit property. Further, that from entry into suit property up to 2021, the 1st Defendant was sending people to him. 11. PW2 Laylord Makhola Lungayi. who was a son to the Plaintiff adopted his witness statement. During cross examination, he confirmed that they found the building on the suit property, in which they reside on. Further, that the Plaintiff did not build on the suit property. PW3 Humphrey Madegwa also adopted his witness statement. During cross examination, he confirmed that they found a house on the suit property. The Plaintiff produced various documents as exhibits No. 1 – 7. 12. The 1st Defendant called two witnesses. DW1 Rosemary Atieno Hala adopted her witness statement and produced various documents as exhibits No. 1 - 5. During cross examination, she claimed to have employed the Plaintiff in 1998 to work for her in another property in Gigiri and paid him. She explained that when she commenced construction ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 7 of 21 on the suit property, the Plaintiff requested her to allow him reside thereon, and she allowed him. She insisted that she had granted the Plaintiff accommodation on the suit property, at his request. She further testified that when the Plaintiff requested her, to live on the suit property, he even gave her his identity card. 13. She reiterated that the Plaintiff had resided on the suit property with her permission and even confirmed this in writing. She insisted that there were call records and communication to confirm she had been in touch with Plaintiff to move from the suit property. Further, that she sent various agents to that effect. 14. DW2 Geoffrey Mwinamo Lumiti adopted his witness statement as evidence in chief. During cross examination he confirmed that he had been sent by the 1st Defendant to the suit property and he took photographs of the house. He ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 8 of 21 explained that 1st Defendant sent him to the suit property to do gardening. He explained that the Plaintiff told him it is the 1st Defendant who brought him to the suit property. 15. Parties thereafter filed written submission. Submissions Plaintiff’s/Applicant’s Submissions 16. The Plaintiff in his submissions provided highlights of the evidence tendered and reiterated that he entered the suit property in 1999. He submitted that he had met the statutory and legal requirements for adverse possession. Further, that the twelve (12) years statutory clock therefore lapsed in 2011. He stated that his evidence is supported by that of his witnesses where it is demonstrated that he has resided on the suit property, actively farmed it for the last twenty-four (24) years, for his family’s sustenance and demonstrated intention to possess. He insisted that the 1st Defendant never provided any contract of employment or license agreement to ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 9 of 21 rebut his assertion of adverse entry. Further, that from the evidence shown there is lack of interruption in occupation and acknowledgment of possession. He further submitted that he has never acknowledged the 1st Defendant’s title. Further, that the alleged conversations annexed by the 1st Defendant are anonymous, unverified and does not meet the threshold of an acknowledgement of title under section 23 and 25 of the Limitation of Actions Act. He also submitted that the 1st Defendant’s title to the suit property has been extinguished by operation of law. It was his submissions that his rights/interests over the suit property as an adverse possessor are superior to that the 2nd Defendant that is a Chargee. To buttress his averments, he relied on the following decisions: Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR; Kasuve v Mwaani Investments Ltd & 4 Others (2004) 1KLR 184; Samuel Miki Waweru v Jane Wangui Waweru & 2 Others (2015) eKLR and Mwalimu & 6 Others v Halal & Another (2025) KECA 1186 (KLR). ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 10 of 21 1st Defendant/1st Respondent Submissions 17. The 1st Defendant in her submissions confirmed she is the registered proprietor of the suit property and that the relationship between the Plaintiff and herself commenced in the 1990s when she engaged him as a gardener. She submitted that she allowed the Plaintiff to occupy the suit property out of humane compassion and he has remained thereon from the year 2000 todate. She insisted that she sent various agents to the Plaintiff to move out of the suit property but he sought for more time vide whatsapp messages, which she allowed. Further, that the Plaintiff misled the Court when he claimed he found the suit property in 1999. She made reference to the evidence tendered including the audio recording where the Plaintiff admitted that she left him with seven children. She reiterated that the Plaintiff’s possession of the suit property was not adverse to her title since there was an element of permission as from the year 2000. She argued that the Plaintiff’s reliance on the ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 11 of 21 absence of a written employment contract, license or formal permission is both legally and factually misplaced as permission for purposes of adverse possession, need not be in writing; it may be oral, implied or inferred from the conduct of the parties. Further, that the arrangement between the Plaintiff and herself is corroborated by the Plaintiff’s own conduct including his repeated requests for time to vacate and his continued communication with her, which clearly demonstrates her authority over the suit property. She further reiterates that the Plaintiff has approached the Court with unclean hands. To buttress her averments, she relied on the following decisions: Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR and Aloys Kaveen Chepkwony v Alice Hottensiah Githu (2012) eKLR. Analysis and Determination 18. Upon consideration of the Originating Summons, respective affidavits, annexures, testimonies of witnesses and ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 12 of 21 submissions, the only issue for determination is whether the Plaintiff is entitled to ownership of land parcel number NAIROBI/BLOCK 112/206 through adverse possession. 19. Adverse possession is governed by the provisions of section 38 (1) of the Limitation of the Actions Act that provides thus: ‘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.’ 20. The Plaintiff in his Originating Summons and supporting affidavit claimed that he did not know the 1st Defendant and had never met her. However, as PW1, during cross examination, he admitted that he knew the 1st Defendant. ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 13 of 21 The Plaintiff in his OS claimed that he entered the suit property in 2000 but during his oral testimony he stated that he entered the said land in 1999 and has used it until todate. PW1 in his testimony why explaining how he entered the suit property, stated that in 1999 he was walking around Runda Estate, saw a home with no gate, entered therein and has resided in it, todate with his family. The 1st Defendant as DW1 however disputed this and insisted that she granted the Plaintiff permission to utilize the suit property on humanitarian basis. 21. The Court of Appeal in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR provided tenets on adverse possession and stated thus: “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 ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 14 of 21 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. 22. Further, the Court of Appeal also restated what a party making a claim for adverse possession ought to prove in Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] KECA 161 (KLR) as follows: “And in order to be entitled to the land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of 12 years either after dispossessing the owner or by the discontinuation of possession by the owner on his own volition…..” 23. Further, in Mate Gitabi vs Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others [2017] KECA 596 (KLR), the Court of Appeal stated inter alia: ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 15 of 21 “For one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is without secrecy, without force, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin maxim nec vi, nec clam, nec precario…” 24. PW1 in his testimony claims he entered the suit property in 1999 when he found the gate open and has been thereon todate. DW1 testified that PW1 entered the suit property with her permission. PW2 and PW3 confirmed that they have always resided on the suit property. 25. From the testimony of the PW1, he did not confirm the exact month he entered the suit property. Further, there was some contradictories as to the year of entry in the pleadings and in his testimony. It emerged in evidence that the Plaintiff ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 16 of 21 continued to reside in the house he found on the suit property and never constructed one. 26. The Plaintiff has tried to make an argument in his submissions that he cultivated the suit property for his sustenance and that of his family but failed to tender evidence to that effect, as the photographs produced only show a few banana plants, sugar cane and bushy grounds. It was DW1’s testimony that the Plaintiff worked for her in another property in Gigiri and when she wanted to relocate to the USA, he requested for accommodation and she allowed him to reside on the suit property as it was still being developed. Further, that she severally sought for him to move therefrom but he requested for more time. DW1 even produced Whatsapp messages of her communication with the Plaintiff, where he sought for time to move out. 27. On perusal of the whatsapp messages, I note it indicates cell number +254710271546 saved as Ernest Runda. Further, on ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 17 of 21 3rd March, 2023, the said Ernest requested for time until 5th April, to move from suit property. On 21st April, 2023, the said Ernest requested for Kshs. 50,000/= as transport to move from suit property. On 25th June, 2023, the said Ernest Runda, thanked the 1st Defendant for granting him and his family accommodation and intimated that he was looking for a school to transfer his children and sought for extension of time to stay until the end of the year. The said Ernest Runda sent a message again on the 19th July, 2023 requesting to stay until the end of the year. 28. I note the Plaintiff as PW1 actually admitted that his phone number was 0710271546. From the audio video recording which was also produced as an exhibit, he also admitted that he was the one recorded and he could be heard thereon saying that the 1st Defendant left him with seven children. 29. The question we hence need to ponder is that if indeed there was no relationship between the Plaintiff and 1st Defendant, ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 18 of 21 why would he seek for more time to move out of the suit property and even ask for money to do so. Further, why would he admit that the 1st Defendant left him with seven children, thank her for granting him accommodation, if indeed he did not know her. The Plaintiff has further argued in submissions that there was no contract of employment to demonstrate that he was ever employed by the 1st Defendant. I note at the end of the cross examination, he actually admitted that he requested the 1st Defendant to allow him reside on the suit property. 30. From the evidence before Court, it is my considered view that the Plaintiff was not being candid but he indeed entered the suit property with permission of the 1st Defendant, but he has now turned around to claim the said property through adverse possession by filing this suit in August, 2023, when he had sought for time until the end of the year to move out. No wonder there are glaring inconsistencies in the evidence and pleadings. ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 19 of 21 31. Even though the Plaintiff sought to shift the burden of proof upon the 1st Defendant to prove that he was indeed an employee, I opine that he is the one who was expected to prove that he indeed entered the suit property without permission of its owner. Further, it was incumbent upon him to confirm the exact date of entry into the said land, without permission of the 1st Defendant, but he has failed to discharge it, to the required standard in a claim for adverse possession. 32. Based on the pleadings and evidence presented in Court while associating myself with the decisions cited above, I find that even if the Plaintiff had cultivated the suit property as claimed, he continued to openly reside on the house he found thereon, with permission of the 1st Defendant, hence his claim for adverse possession over the said property has failed. ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 20 of 21 33. It is against the foregoing that I find the Plaintiff has not proved his case on a balance of probability and will proceed to dismiss the originating summons dated 19th August 2023 with costs to the 1st Defendant. DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JUNE, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ms Nyamwaro for Macharia for Plaintiff/Applicant Ms Njeri for Solonka for 1st Defendant Court Assistant: Vena ELC L CASE NO. E008 OF 2023 (OS) Judgement Page 21 of 21