https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4639

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA** **ELCLC NO 115 OF 2023** **(formerly Nyahururu ELC NO EOO6 of 2020)** **BERNARD NDIRANGU MAINGI (suing as the legal representative of the Estate of the late Lidia Wanjiru Nderitu (Deceased).................PLAINTIFF.** **VERSUS** **CILIA WANJIRU NDERITU (Suing as the legal representative of the Estate of the late ISAAC NDERITU NYAGA (Deceased).................DEFENDANT.** **JUDGMENT:** The suit before the Court was filed through a Plaint dated 18/11/2020 and then amended on 31/5/2022 and still further amended on 14/11/2025. In the final amendment, the Plaintiff filed the suit as the legal Representative of the Estate of his late mother, Lidya Wanjiru Nderitu which amendments were mainly necessitated by the death of the respective Plaintiffs. He pleaded with the Court to grant him the following orders: - 1. A Declaration that the Defendant herein holds Title to L.R No. NYANDARUA/OL-KALOU (SALIENT)/294 in trust for the late Lidya Wanjiru Nderitu and that the Deceased is entitled to be registered as the absolute owner of all that parcel known as L.R No. NYANDARUA/OL-KALOU (SALIENT)/294 or a portion of it thereof as may be determined by this Honourable Court. 2. An order do issue directing the Land Registrar, Nyandarua County to cancel Title No NYANDARUA/OL-KALOU (SALIENT)/294 registered in the name of Isaac Nderitu Nyaga and registration of the whole or a portion of it thereof into the name of Benard Ndirangu Maingi to hold in trust for the Estate of Lidya Wanjiru Nderitu. IN THE ALTERNATIVE. 1. A Declaration that the Deceased is entitled to be registered as the proprietor of Title No. NYANDARUA/OL-KALOU (SALIENT) /294 by virtue of the doctrine of adverse possession and the suit be registered in the names of Benard Ndirangu Lidya Wanjiru Nderitu. 2. Costs of the suit. 3. Any other or further relief this Honourable Court may deem fit and just to grant. These prayers were grounded on the Plaintiff’s averments that the Deceased mother to the Plaintiff and the initial Plaintiff, the late Lidia Wanjiru Nderitu was a sister-in-law to the late Isaac Nderitu Nyaga (the initial Defendant being a biological brother to the Plaintiff’s father). The late Isaac Nderitu Nyaga was the registered owner of NYANDARUA/OL-KALOU (SALIENT)/294 having been allocated the same by the Settlement Fund Trustees back in the 1970s and was subsequently registered as the proprietor thereof sometime in the year 2020. He further averred that on or about the year 1979, the then Defendant Isaac Nyaga approached the late Lidya together with her late husband while the two were living in Nairobi and told them that he had gifted them the parcel of land absolutely so that they can have somewhere to settle. In the same year 1979, the late Lidya and her husband in reliance of the bequethment of the land absolutely moved from their rental home in Nairobi and took actual possession of the suit parcel of land with the full knowledge and consent of the Defendant. Lidya, her husband and their children including Benard Ndirangu Maingi settled on the suit land and thereafter developed it by constructing permanent residences, fenced off the land, started farming on the land and had exclusive control and use of the land since 1979 and the said family of Lidya has had continuous, open, uninterrupted and exclusive use of the land for over 40 years. The late Lidya has also dug a borehole, grown mature trees and reared livestock on the land. She also buried her husband on the land. She was also buried on the suit land with the full knowledge of the late Nyaga. The late Lidya paid arrears of land rates in respect to the suit land amounting to over Kshs. 9,000/- in 2010 and has since then paid all the subsequent land rates until October, 2020 when the late Nyaga forcefully took over the payments. The Plaintiff further said that Lidya caused the installation of electricity and power on the suit land the use of which she has been paying for many years. The late Nyaga and his Estate are therefore estopped from claiming ownership. In 2020 the late Nyaga, without the Deceased’s ( Lidya’s) knowledge had the land registered in his name as the lawful owner to the exclusion of Lidya and on or about 13/10/2020 Nyaga started interfering with Lidya’s quiet possession by issuing her with a Notice to vacate from the suit property without any lawful basis whatsoever and in clear contravention of Lidya’s rights and interests acquired over the suit land which constituted unconscionable actions with a likelihood of having the Estate of Lidya suffer loss, harm and damage. The Plaintiff averred that the Estate has in its favour a trust created and that the registration of the land in the name of Nyaga as its proprietor did not affect or dissolve the trust. In the Defence of Cicilia Wanjiku Nderitu amended on 28/1/2026 after the death of her husband, Isaac Nderitu Nyaga who died on 27/11/2022, she averred that the late Isaac Nderitu became the registered proprietor of the suit land in 2016. She further admitted that Isaac approached his brother (husband to the late Lidya in 1979 in regard to the suit land but that the late Isaac did not gift the Deceased Plaintiff and/or his late brother. She said that due to the deplorable conditions the family of Lidya and her husband were living in Kiandutu slums in Thika, the late Isaac gave them express permission to live on the suit property until they were able to live fully independently at which time he would expect them to vacate the suit land. Accordingly, Lidya and her family moved into the suit property with Isaac’s express permission but not on bequethment of the same. But that motivated by greed, the latter family abused Isaac’s kind gesture in a blatant and obnoxious attempt to deprive him of his property and also an insult to Isaac’s benevolence after the family settled on the suit land. She further averred that the suit land was fenced before Lidya’s family settled thereon save the one around the home that was fenced by Lidya’s family. Further, he gave them authority to put up a house on the suit land. He said he is the one who planted the trees on the land in 2004 and 2012 and that the permission to Lidia to live on the property was temporary made out of love for his brother which ended on 13/10/2020 when he gave them Notice to vacate from the suit land. He further contended that the claim of adverse possession made by the Plaintiff is baseless, misguided and a misconceived claim which makes him a ghost. He further avers that his brother (husband to the late Plaintiff) was buried on the suit land with the express permission and knowledge of Isaac. Since at the time of the latter’s’ death the family did not have anywhere else to bury his brother and also for the love he had for his brother and did not want to face the shame of him being buried in a public cemetery. But as for the burial of Lidia on the suit land, the same was challenged in Court since at that time the family had acquired land elsewhere. He further said he is the one who paid land rate arrears while acquiring the Title Deed in 2016 and that as for electricity the late Isaac gave authority for the same to be connected to the property and that the late Lidia’s family has always sought Isaac’s authority and consent when undertaking any major development on the land and that her assertion of ownership of the property is therefore dishonest and baseless. The Plaintiff/ Estate of his late mother therefore has no equitable interest over the suit land since their occupation of the suit land was based on express permission by the late Isaac Nderitu Nyaga. He averred that Lidia was living on the suit land as a tenant at will and as a licensee which license was extinguished by his Notice to vacate dated 13/10/2020 and she and her family thereby became trespassers on the suit land. He also said that his brother’s children were all grown up and gainfully employed and should now vacate his land and that even if the Deceased Plaintiff and her family have lived on the suit land for over 40 years, he was never dispossessed from the land nor was his possession discontinued since Lidia and her family were living on the land at her request and with his express permission. He therefore prayed for the dismissal of the suit and an order of eviction of the Deceased’s Plaintiffs’ family together with any other person laying claim over it through the Deceased Plaintiff. The Deceased Defendant also asked the Court to compel the family of the Deceased Plaintiff to remove any illegal structures erected on the suit property as well as costs and interest together with any other or further order the Court may deem fit and just to grant in the circumstances. The hearing of the case commenced on 26/2/2026 when the Plaintiff Benard Wahinga Maingi testified and said that the Deceased Plaintiff - Lidia Wanjiru was his mother and that he had already taken out letters of administration Ad Litem in order to prosecute the suit. He adopted his Statement recorded on 28/1/2026 as his evidence in chief. The said Statement adopting his mother’s dated 18/11/2020 resonates with the averments in the Plaint already stated above which I don’t have to repeat. He said that his father was called Jessee Maingi, a brother to Isaac Nderitu Nyaga (deceased). He testified that his paternal uncle Isaac gave the suit land to his late father in 1979. He said that the suit land measures 15 Acres or thereabout and that they had stayed on the land for over 45 years. In his mother’s statement which he adopted, his mother had said that she and her late husband never bothered to apply to the Settlement Fund Trustees for their own land because of the assurance they had that the suit land had been given to them permanently and that therefore they were not eligible to be given their own land. His mother said that the Deceased Defendant gave them the land because he had plenty of land all over. She further said that by his conduct, the late Isaac caused them to believe that the land belonged to her and her husband absolutely and that he would never claim ownership of the same. The Plaintiff’s Estate was therefore seeking ownership by virtue of the doctrine of constructive trust. He then produced the following documents to support the Plaintiff’s claim. 1. KPLC Billing Statement in Lidia’s name. 2. KPLC Electricity Bill query in Lidia’s name. 3. Property rates payment request dated 11/6/2019 in Isaac’s name. 4. Notice to vacate dated 13/10/2012 from Isaac. 5. Photographs of development on the land. 6. Certificate of death of the late Lidia Wanjiru Nderitu indicating that she died on 10/9/2021. 7. Grant of Letters of Administration Ad Litem issued by the Chief Magistrates’ Court at Nyahururu on 17/1/2022. 8. Chief’s letter introducing the family of the late Lidia same dated 13/10/2021. On cross-examination by Ms. Maina for the Defendant, the Plaintiff said that he was not there when Isaac gave the land to his late father because he was a child. He said that Isaac lived in his (Deceased’s) grandfather’s land in Othaya which is about 2 Acres which he did not know in whose name it was. He said the same had never been sub-divided or distributed. He said they did not want the Othaya land since they were contented with the suit land which they all along knew was theirs and that is why they planted trees thereon and which his uncle gave them willingly. He said that the land was solely bought by the late Isaac who he said died in 2022 and his parents never contributed to its purchase and that there was nothing put in writing when the land was given to his father. They paid the electricity bills because they are the ones who were utilizing it and that it was not fair for Isaac who was not using it to pay the bill. He also testified that his uncle pitied his father and that is why he (Isaac) gave him the land and that he was aware that Isaac allowed them to dig a borehole on the land. On questions from the Court, the witness said they entered the land with Isaac’s permission and with the latter’s full knowledge and also that they had a right over the Othaya land which they had not offered in exchange with Isaac. On re-examination by Mr. Ojare, his Advocate, he said he was only 6 years old when the land was given to his father by his uncle since he was born in 1973 and that all this time Isaac was living in Othaya whose number of parcel of land he could not tell. PW2 George Gichuki Nyaga, a brother to Isaac and Jesse Maingi (late husband to Lidia) adopted his statement of 18/11/2020. He said that it was Isaac who approached the Deceased Plaintiff in 1979 and gave her and her family the suit land to live on and whatever development that was put up thereon was with Isaac’s consent and authority, such as borehole, a permanent home, trees and livestock. He further said that everybody in the family believed the land had been gifted to the Deceased Plaintiff. He further said that none of the developments was ever erected by the late Isaac. He was of the view that if Isaac had told the late Lidia that the land was not his permanently, then Lidia would have bought her land but that now she was very old (by the time of the hearing of the case she had not bought one or even applied for her own land from the Settlement Fund Trustees as a landless person and finally that the Plaintiff should be the rightful owner of the suit parcel. On cross-examination from Ms. Maina, Gichuhi said that the land belonged to his brother, Jesse, Lidia’s husband and that Isaac permitted Jesse to put up a home on the suit land and that the entire family of Nyaga was so friendly and would visit one another with their children until his brother Jesse died. He said they were 5 siblings. Gichuki said the gift was never reduced in writing and that Maingi did not exchange his Othaya share with the Nyandarua one, owned by Isaac which is 7 Acres. Finally, he said that the Maingi’s went to the suit land with Isaac’s permission and developed it. On re-examination, Gichuki told the Court that Isaac allowed Jesse Maingi and his family to occupy the land and develop it because the latter’s children were loitering in the streets of Nairobi and that Isaac was moved to the extent he gave them the land and that Isaac was a very good friend to them all. After the close of the Plaintiff’s case, Cecilia Wanjiru Nderitu took to the witness box and adopted her statement recorded on 21/12/2025. She said Lidia was her sister-in-law and that Bernard was her (Lidia ’s) son. She introduced herself as the wife of the late Isaac Nderitu Nyaga in the said statement. She also gave an account of her case just as had been pleaded in the Defence by her late husband. She added that her husband applied for the land in the late 1970’s which Application was successful and they paid the consideration to the Settlement Fund Trustees. They constructed a modest temporary 2 bedroomed house and planted trees to mark the boundaries of the land, fenced it and took possession. She said that upon being given the land to occupy the second Plaintiff and her husband promised that as and when the Deceased Defendant wanted the land they (the Deceased Plaintiff and her family) would have no problem nor resist vacating the land. The land was not a gift nor was it bequeathed to them. She said that the 2 families used the land together and that it was her late husband who saw it fit to allow the late Jesse to be given a final resting and dignified funeral on the suit land. She said that why her late husband decided to apply for the Title Deed for the land is because he discovered some unscrupulous maneuvers at the land Registry pertaining to the suit land. When told to vacate the land, the Plaintiffs pleaded for 2 more years only to change their mind and file this suit. Her husband was the sole proprietor of the land which was not clan nor ancestral land. she said that her husband’s wish was to have the land sub-divided and divided among his children and that her husband’s good deeds were being taken advantage of by his late sister-in-law and her children which made him die very heartbroken. She said she was ready to defend her children’s inheritance. She further said that they also had livestock on the suit land. She then produced the following documents. 1. Copy of Certificate of Official search. 2. Copy of Title Deed. 3. Copy of receipt. 4. Copy of Application for registration form. When cross-examined by Mr. Ndegwa Wahome for the Plaintiff, the Defendant said there is no way she could refuse the Deceased Plaintiff to use the land to feed her children and that the family of Lidia has never abandoned their rights over the Othaya land in order to take the suit land. On the suit land the family of Lidia only put up a shelter. She said she used to grow maize and beans on L.R No. NYANDARUA/OL-KALOU (SALIENT)/294 and that they never barred Lidia to put up a permanent house. She further responded that she did not need to be a member of a co-operative society to grow and market her maize and beans produce. She finally said that her husband planted trees on the land. On re-examination by her Advocate, Ms. Njeri Maina, the Defendant said she grew maize and beans for subsistence for which she did not need to join a co-operative society. DW2 – Stanley Maina Nderitu, son to DW1 and a nephew of the late Lidia Wanjiru and a cousin of Bernard adopted his statement of 21/12/2025. He said he was aware his late father gave the suit land to the late Lidia to cultivate. He visited the land in the 1980’s in the company of his late father and observed the land had a temporary 2 bed-roomed house. He also said they used to cultivate the land yearly with seasonal crops including maize and beans and that when he and his siblings went to cultivate the land they would sleep at the Plaintiff’s house. They could even prune the trees on the land and do general upkeep of the land. The rest of the evidence was synonymous to his mother’s. He equally associated himself with the documents produced by his mother earlier. He said he was taken to the land by his father in 1979 when he was in Nyandarua High School. While answering questions from Mr. Wahome for the Plaintiff, the son of the late Isaac said he was born in 1964 and that he went to Nyandarua High School in 1974. He said there was an incomplete home on the land put up by the person who sold the land to his father. He gave the names of their neighbours as Gathogo, Ng’ang’a and Samuel and the chief of the area as Wahome. He also said that when they visited the land they would put up at the Plaintiff’s home and that the permanent house on the land was put up when his father was sick and hospitalized and without his permission nor that of his mother. He said the family allowed Jesse to be buried on the suit land because transporting his body to Othaya would have been very expensive and that when the late Lidia died they were unable to prevent her being buried therein because his father was sick. On re-examination by Ms. Maina, the witness said he lived on the land and knew it too well. Lucy Waruguru Nderitu born in 1966, a daughter of Cecilia and Isaac Nderitu and cousin to Bernard the Plaintiff, adopted her statement of 21/12/2025 and repeated her siblings’ and mothers’ evidence which I need not reproduce. She said she as well used to cultivate the suit land until she got married. Further, the Plaintiff Lidia and her family would always tell them that they were only taking care of the land and that her father continued cultivating the land alongside the Deceased until he fell sick and weak in 2000. At this stage her brother started taking care of the land as she herself took care of their sick father’s health. On cross-examination Lucy said that Lidia and her family started cultivating the land which her father had bought in 1975 in the 1970’s. She could name some of her neighbours such as Mr Githongo, councilor Macharia, the Ng’ang’a’s. The last time she went to work on the land was in 1993 before she got married in 1995. But she visited the land in 2020 and that she could not tell why Jesse was not buried in the ancestral land in Othaya but that Lidia was buried on the land despite the family’s (Isaac’s) protest. She finally said her father never lost his memory or mind even as he approached his death and with full control of his faculties he kept telling them the plans he had over the land. He fell sick in 2005. On re-examination by Ms. Maina the witness said she was now 60 years old and could not easily forget dates. She said she could not have any say as to where her uncle would be buried as she was their “child” and also sick and in hospital and and was not even able to attend the burial. With the re-examination, the Defence closed its case. The issues that call for determination in favour of the Plaintiff in this suit are:- 1. Existence of adverse possession in favour of the Plaintiff. 2. Whether there was constructive trust in favour of the Plaintiff. 3. Whether there was a gift of the suit land to the Deceased Plaintiff by the Deceased Defendant. 4. Whether the conduct of the late Defendant created a legitimate expectation and/or an equitable interest in favour of the Plaintiff over the suit property. As to adverse possession, the Plaintiffs have left no doubt in their evidence that they got into the land with the permission of the late Isaac Nderitu, the registered Proprietor of the suit land. This is another case of a person given land out of sympathy but becomes as President Kibaki would have it “very clever”. In the case of Mbira vs Gachuhi Nairobi HCCC No. 2826 of 1997 Kuloba J. held: - *“The fact that a person whom I permit to use a part of my land cultivates it or builds on it during the time I have no need for that particular site does not mean dispossession or discontinuance. An owner of land may at one time leave one side to lie fallow or to be temporarily used by someone else. When the need arises, he may then put the other portion to use. But it would be dangerous to suggest that any part which he does not presently use becomes someone else’s land. Here the Plaintiff used a portion of the Defendant’s land with his permission for as long as he did not need that portion. She did not dispossess him of it, and he did not discontinue his possession of it. There has been no absence of possession by the Defendant………………* ***As I said earlier in this judgment ,if there are two persons in the piece of land (as it is being asserted in relation to the portion of the suit land in this case),and each doing some act in the assertion of the right of possession ,and the question arises as to which of those two rival claimants is in actual possession ,the person who has the title is in actual possession , and the other person is a trespasser or a possessor with permission of the title holder****.. …...... That way, the doctrine of adverse possession did not come into play. Kinship, more than anything else, is what arises here. There was never a repudiation of the Defendant true owner’s title…………...A suit founded on adverse possession is inappropriate in the circumstances and on the fact of this case. All that has been proved is long permissive or consensual possession by kindred. That alone is not sufficient.”* In **Benjamin Kamau Murima and others v/s Gladys Njeri (Nrb) C.A. No. 213 of 1996 (unreported)**the Honourable judges of appeal stated: ***“One needs only to look at the position of the occupier and if it is found that his occupation is derived from the proprietor of the said land in the form of permission or agreement or grant, then such occupation is not adverse, but if it is not so derived then it is adverse.”*** In yet another case, Mbui vs Maranya Meru HCCC No. 283 of 1990, Justice Kuloba went to great heights to explain the circumstances and conditions that found a claim for adverse possession by stating as follows: - *“It is possible to define “adverse possession “more fully, as the non-permissive physical control over land coupled with the intention of doing so , by a stranger having actual occupation solely on his own behalf or some other person , in opposition to, and to the exclusion of all others including the true owner out of possession and that land , the true owner having a right to immediate possession and having clear knowledge of the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owners enjoyment of the land for the purposes of which the owner intended to use it.* *………………………... If possession has commenced and continued in accordance with any contract, express or implied, between the parties in and out of possession, it cannot be presumed adverse…………………. The non-permissive actual possession hostile to the current owner must be* ***unequivocally exclusive****, and with an evidence unmistakable animus possidendi , that is to say, occupation with the clear intention of excluding the owners as well as the other people. Exclusive possession means that the exercise of dominion over the land must not be shared with the disseised owner, the land being in actual possession with intent to hold solely for the possessor to the exclusion of others. A person in possession of land is not entitled to the protection of the statute of limitations as against* ***the owner of the paper title where the latter and his predecessors in title have not been kept dispossessed or have not abandoned possession of the land for the statutory period and the person claiming the protection of the statute has been in possession with an animus possidendi for the requisite time.*** *…………. An owner ceases to be in occupation of land by reason of dispossession or discontinuance of possession. ……….The person relying on the statute must prove that he was in exclusive possession and that the true owner was out of possession……... ….****The adverse possession must make out a case of an unequivocal excusive possession,*** *sufficient to deprive the owner of the soil………………. ……………****Where it cannot be said that the possession was exclusive, where the true owner and others were free to use the ground in question, and there was no assertion of title, a case of adverse possession is not made out.******It is not sufficient that there should be an actual possession by the person claiming title by adverse possession; there must be a discontinuance of possession by the owner, or he must have been eliminated from the land****, followed by clear actual possession by incoming person. A case of unequivocal exclusive possession sufficient to deprive the owner of the soil must be made out on a balance of probability.* ***It is incumbent on the part of the claimant satisfactorily to establish an exclusive possession by himself or through his predecessors in title against the past twelve or more years****. It is not enough to show a mere going out of the possession by the owner. There must also be exclusive possession for the statutory period by the person to be protected……………………………It is incumbent on the person alleging a right by adverse possession to show, not only that his possession has lasted twelve or more years,* ***but also that it has all the time been in open conflict with the title on which the owner relies.*** *He must show that his possession was of such a nature, and involved the exercise of rights so irreconcilable with those claimable by the owner of the land, as to give the owner occasion to dispute that possession. ……………………****And it has been held many times that acts done under license or permitted by the owner do not give a licensee a title under the limitation*** *…………………………………….. Time therefore, does not run against a true owner whose purpose are not prejudiced by the intruder’s acts possession may be interrupted ….………………. . Throughout the decided cases, the recurrent theme is that possession to be adverse must be actual, open, notorious regular, continuously uninterrupted, hostile, exclusive occupancy held with a cherished animus possidendi under a claim or right held in good faith, without any form of permission from a knowing rightful owner entitled to immediate possession, for the statutory period. Out of these cases, the typical formulation of rules as to the nature of the interest conferred by adverse possession have also been judicially stated. …………………..****The process takes place by operation of law, as a general rule, time does not run against a person who is under some legal disability.******The land, or portion of land, adversely possessed must be a definitely defined or at least an identifiable portion, with a clear boundary or identification.*** *For this purpose, that which can be ascertained is certain; that which is definitive is positive. It must at least be so plotted that if not certain it can be made certain……………………………….This proposition means that the plea of adverse possession is always based on facts, and the facts must be asserted, pleaded and proved. The factual proof requires the person who claims adverse possession to show on what date he took occupation of the premises, the nature of his possession or the possessory acts, whether the factum of his possession was known to the owner of the land, how long the possession went on, whether his possession was open and undisturbed. All theses are questions of fact and unless they are asserted and proved a plea of adverse possession must fail. …………………. . a cause of action accrues when there is, in existence, a person who can sue and another who can be sued. The question always is this: when could the owner have first maintained an action to a successful result to repel the actual possession with a notorious hostile claim of exclusive title?* Secondly, the land was not used exclusively by the Plaintiff (Lidia) and her family. The Defendant (Isaac) also used to grow maize and beans alongside the family of Lidia. He also kept livestock, cows and goats and his family used to go and cultivate the land while putting up at their aunts’ (Lidia’s) house. Thirdly, to defeat a Title under adverse possession, time starts running upon the owner being registered the owner of the suit land. The Title Deed in favour of the late Isaac Nderitu Nyaga was issued to him on 21/9/2016. This suit was filed in Court vide a Plaint dated 18/9/2020, slightly over 4 years. Furthermore, the family of Lidia can also not be a beneficiary of the doctrine because she cannot say with exactness the definite portion he occupies. **The land, or portion of land, adversely possessed must be a definitely defined or at least an identifiable portion, with a clear boundary or identification.** The portion given to her was by description but its acreage was not even defined.From the evidence adduced in Court, it is not possible to ascertain where or what portion the Applicant occupies. On this the Court of Appeal in the case of Kasuve –vs- Mwaani Investment Ltd & Others (C.A.No 35 of 2002) held at page 87:- “*Moreover, the Appellant did not prove the location of the distinct portion of land he is claiming or its acreage ……..In the circumstances ,there was no concrete evidence that the Appellant was in exclusive adverse possession of any definite and distinct land ascertained to be 40 acres …………..”* Therefore, the requirements for adverse possession of open, quiet uninterrupted, continuous and exclusive possession, control for a period of at least 12 years from the time the suit land was registered in the name of the Defendant are not met. Further, by the time the Deceased Plaintiff came to Court, she and her family had already been evicted from the land and therefore the continuous possession and occupation has not been met. As for trust, the land belonged to the Deceased Defendant and was only given to the Deceased Plaintiff not as a gift but on humanitarian grounds because the latter did not own land and the late Isaac feared that his brother’s children would remain despondently and without a future if they remained loitering in Thika. Constructive trust therefore does not arise in these circumstances and has not been met. As to whether the conduct of the Defendant created any legitimate expectation on the part of the Plaintiff the late Isaac Nderitu, it has been testified, was all along going to the land to prune his trees and also kept reminding his brother and the latter’s wife that the land belonged to him. PW2 even told the Court that for any development to take place on the land, the late Lidia had to get consent and authority from the late Isaac Nderitu. Therefore, it was clear to Lidia and her husband Jesse and their children that the suit land NYANDARUA/OL-KALOU (SALIENT)/294 was not theirs but they were licensees or tenants at will and would one day vacate the land. Therefore, if there was any legitimate expectation then the same was misguided and remained a baseless hope and expectation that is contrary to what the constitution of Kenya, 2010 anticipated. Even equity would not aid the Plaintiff. As for the Deceased Plaintiff and her husband not applying for a piece of land from the Settlement Schemes as at the time the Plaintiff’s witnesses said that the family of Jesse Maingi could not apply to be given land because they were taken to already own land there was no land left for allocation and the Court believes that this is the reason Lidia and Jesse did not apply for the same. Otherwise they should have applied and see whether the Settlement Fund Trustees would allocate them one. PW2 – George Gichuhi Nyaga, a brother to the 2 brothers whose families are in dispute over L.R No NYANDARUA/OL-KALOU (SALIENT)/294 told the Court that the suit land was given to Jesse by Isaac. It is Lidia who was claiming it. Did she have any letters of administration in respect of the late Jesse Maingi to enable her pursue Maingi’s Estate. She all along told the Court that the land was hers and not through succession. This witness also told the Court that Isaac “allowed” Jesse Maingi and his family to occupy the land and develop it. Before I pen off I must say as I did in **Nyamira ELC No. 42 of 2021, Seventh Day Adventist Church East Africa -VS- Isoge F.C.S. Ltd:** *“…………………In the instant case it is unfortunate that the Applicant wanted a place to prepare a camp meeting centre for prayer and worship and the Respondent gave the same to her. The Applicant must have reaped enormous benefits* ***(some of which are invaluable and of everlasting nature)*** *for all that period she was in possession. What was initially not made clear was that the latter would turn around and move the court to apply the doctrine of adverse possession in her favour. This is a case of a person being shown kindness but later turns around to want to benefit from the common law doctrine of adverse possession when in actual fact she never put in motion any circumstances that were adverse to the actual owner. A case of a person who bites the hand that has fed her for the last 30 years….* *………….It is important to state here that the doctrine of adverse possession was not meant to be an instrument of fraud and ingratitude. In Kenya, it is not uncommon for landless people to approach good hearted landowners and ask the latter to allow them cultivate their land for their upkeep or even to earn a living. The person pleading for such a favour does so with the clear understanding that the favour is not meant to be permanent or to dispossess the rightful owner. But with time he thinks he can dislodge his benefactor. The benefactor may have given the needy person not because he didn’t need the land at the moment or because he had plenty but because he wanted to share the little he had. There are also those who for some reason are not in immediate need of the land e.g. someone leaving the country for further studies or for some temporary engagements and then comes back after 12 years only for the yester-needy person to tell him that he is now dispossessed. In the instant case it is unfortunate that the Applicant wanted a place to prepare a camp meeting centre for prayer and worship and the Respondent gave the same to her. The Applicant must have reaped enormous benefits (in whatever form) for all that period she was in possession. What was initially not made clear was that the latter would turn around and move the court to apply the doctrine of adverse possession in her favour. A holding such as is prayed for by the Applicant would be of calamitous practical consequence on cherished positive cultural practices and traditions amongst our people, meant to provide social and economic security in the event of misfortune befalling a member of society. The law would be very inauspicious to allow this sort of ungrateful, immoral, horrifying and unconscionable behavior. I refuse to be part of such retrogressive expansion of the law……”* In as far as the Plaintiff’s argument that the late Isaac Maingi was buried on the suit land as evidence that the land belonged to him, legally this is not a sound argument or explanation. However, DW2, son to the Defendant, gave a suitable and more convincing explanation that the family found it to be unnecessarily expensive to transport the body of his paternal uncle from Ol-kalou to Othaya. Accordingly, this suit is dismissed with costs to the Defendant. Court. **Judgment dated and signed at Nyandarua this 8th day of July, 2026.** **MUGO KAMAU** **JUDGE** In the presence of:Q Samson……. C/A Mr. Ojare for the Plaintiff. Mr. Mugi for the Defendant.