https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4492

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURTS, NAIROBI** **ELCLC E097 OF 2025** **STEPHEN GITHA MBUGUA….…………………………………PLAINTIFF/APPLICANT** **-VERSUS-** **AMBOSELI COURT LIMITED………………………………DEFENDANT/REPONDENT** **JUDGEMENT** **Background** 1. The Applicant has brought this suit by way of originating summons application dated 28th February 2025 seeking the following orders 2. **THAT** the Honourable court do declare and hold that the parcel of land known as LR NO, 15400/67 (IR 115919) has vested to the Plaintiff and that the Plaintiff is entitled to the registration and issuance of a title over the same on adverse possession basis. 3. **THAT** a mandatory order do issue directing the Defendant to avail and/or Surrender to the Plaintiff within a period of thirty (30) days or such other reasonable period that the Honourable court may deem just and expedient all relevant ownership and transfer documents relating to land parcel LR, No.15400/67 (IR 115919) to facilitate the transfer of the said property from the Defendant to the Plaintiff. 4. **THAT** in default of the Defendant availing the said documents as per prayer (2) hereinabove within such period as shall be set by the Honourable court, the title held by the Defendant (if any) in respect of the suit property LR NO.15400/67 (IR 115919) be marked as cancelled/revoked and the Chief Land Registrar, Nairobi be mandated to issue a fresh title in the Plaintiff's favour in respect of the said land parcel LR NO.15400/67 (IR 115919). 5. **THAT** the Plaintiff be awarded damages against the Defendant for breach of contract. 6. **THAT** the costs of this originating summons be provided for. 7. Any other orders the court may deem fit to issue. 8. In his supporting affidavit the Plaintiff/Applicant stated as follows: That he entered into a sale agreement dated 7th September 2010 with the Defendant company over suit property known as LR No.15400/67 (IR 115519) situate in Eastland’s area, Nairobi. That he paid the full purchase price and took occupation of the same as per the agreement, but the Defendant to date has failed to surrender the completion documents for the Applicant to transfer title in his name despite several demands to do the same which has occasioned him loss as he is unable to fully utilize the property as it is not registered in his name. 9. He deponed having been on the suit property for more than 12 years he is entitled to the property by doctrine of adverse possession notwithstanding his proprietary claims based off the sale agreement that the Defendant has breached 10. The Applicant served the Defendant through its director the application as well as the mention notice for the 28th May 2025 evidenced with the affidavit of service of Kennedy Luseno who indicated the Defendant refused to acknowledge receipt. There is further evidence of service of the hearing notice to the Defendant’s director via his registered WhatsApp phone number but the Defendant failed to enter appearance hence the application is uncontroverted. 11. The matter proceeded for hearing as an undefended matter, and the Plaintiff testified on the 13th April 2025 relying on his supporting affidavit. He indicated to have been in possession of the suit property for 16 years and asked the court to allow the orders sought after. The Plaintiff closed his case and the court also marked the defense case as closed. 12. The Plaintiff was ordered to file submissions which he filed on the 5th June 2026 the submitting on the following *Whether the* Applicant is entitled to the reliefs sought after for claim of adverse possession. 1. Counsel submitted whereas the entry of the Applicant into the property was lawful through the sale agreement dated 7th September 2010, the doctrine of adverse possession had been invoked, the Defendant failing to effect transfer in the Plaintiff’s name and hence defaulting in the contract. The Applicant submitted that the stay therefore ceased to be permissive but adverse to th registered owners title relying on several case laws including the case of **Public trustee Vs Wanduru (1984) eKLR and Mbira Vs Gachuhi 2022 1 EARL 137**. Counsel submitted that under **Section 38(1) of the Limitations of Actions Act** the court was vested with the jurisdiction to grant the reliefs sought. On the issue of damages counsel argued having proved failure of the Defendant to honour his part of the agreement, then the Plaintiff was entitled to general damages. In conclusion, the Plaintiff submitted that through his evidence and he had have demonstrated that the suit propertyy is registered in the name of the Respondent and he has been in open, continuous and uninterrupted occupation for over 16 years, and that occupation has been non-consensual and adverse; and the Respondent has been dispossessed for a period exceeding 12years. The Plaintiff urged the court to allow the Originating Summons as filed, with costs. **Analysis and Determination** 1. I have considered the pleadings as filed the available evidence as adduced by the Plaintiffs exhibits produced, the written submissions, cited authorities and the relevant provisions of law and finds the single issue for determination is whether the Plaintiff has proved his case on the required standard of balance of probabilities. 2. It is not in doubt that the suit herein is not opposed, since the Respondent did not enter appearance nor file their defence. However, it trite that ‘‘he who alleges must proof’’, and it is not automatic that undefended suit will carry theday. Sufficient evidence must be availed to prove the case, because as always, the burden of proof is upon the person alleging as required by sections 107 and 109 of the Evidence Act. Section 107(1)(2) of the Evidence Act, provides as follows; 3. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 4. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 5. The legal test for adverse possession in Kenyan jurisprudence is found in the **Limitation of Actions Act (Cap 22),** the relevant provisions are **Sections 7, 13, and 17,** which together provide the legal mechanism for a claim of adverse possession. In John **Kimini Kamutu v Joseph Macharia Ngunjiri & 3 others [2020] KEELC 2763,** the court observed that; “*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 … at the expiry of 12 years of Adverse Possession of that land.”* 1. In addition, the Court is guided by the definition and essential ingredients of adverse possession as articulated by the Kenyan courts. In Ibrahim Wachira **Karaguri v Mary Mwihaki Simon & another [2020] KEELC 111,** the Court of Appeal held that the burden lies on the person seeking adverse possession to prove that they have used the land; “*as of right” and that “nec vi, nec clam, nec precario (No force, no secrecy, no evasion) … The possession must be continuous. It must not be broken …”* 2. The maxim nec vi, nec clam, nec precario (not by force, not in secrecy, not by permission) is a recurrent standard in our law. In **Samuel Kihamba v Mary Mbaisi [2015] eKLR,** the court stated that: *“Strictly, for one to succeed in a claim for adverse possession, one must … occupy the land openly, that is, without force, without secrecy, and without license or permission … These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi…* 3. Turning to the facts in this case, the Plaintiff’s unchallenged evidence overwhelmingly meets these legal requirements. He swore an affidavit, and testified that he has lived on the suit land continuously for 16 years; that his occupation has been actual, open and notorious, peaceful (no force or violence); and without any implied or express permission from the registered proprietor. These facts strongly support a finding of non-permissive occupation (animus possidendi), which further satisfies the standard set out above. 4. Given the Plaintiff’s uninterrupted occupation that satisfies all the required elements, the Court is persuaded that he has proven adverse possession. As a result, by operation of **Sections 7, 13 and 17 of the Limitation of Actions Act,** the court declares that the registered proprietor’s title is extinguished in his favour. 5. Having established that the Plaintiff has satisfied the test for adverse possession, the Court must consider the appropriate remedy. The extinguishment of the Defendant’s title by operation of the **Limitation of Actions Act** entitles the Plaintiff to a judicial declaration of ownership. **Section 38 of the Limitation of Actions Act**, together with **Order 37 of the Civil Procedure Rules**, provides the procedural mechanism for applying to court to be registered as proprietor once adverse possession is established. The court noted that adverse possession is an “overriding interest” under **Section 28(h) of the Land Registration Act**. 6. In the instant case, given that the Plaintiff has proved his case, and given that he has clearly manifested the requisite animus possidendi (his acts on the land plainly reflect an intention to exclude the registered owner and treat the land as his own), it is proper for this Court to issue a vesting order in his favour. **Final disposition** Having found that the Plaintiff has satisfied all legal requirements for adverse possession, it is hereby ordered as follows: 1. That the Respondent’s title and interest in the land comprised Land Title No LR NO 15400/67(IR 115919) stands extinguished by operation of law. 2. That the Plaintiff, Stephen Gitiha Mbugua has acquired title to the Suit Land Title No. No LR NO 15400/67(IR 115919) by way of adverse possession and is therefore the lawful owner thereof. 3. That the Defendant to Surrender to the Plaintiff within a period of thirty (30) days all relevant ownership and transfer documents relating to land parcel LR, No.15400/67 (IR 115919) to facilitate the transfer of the said property from the Defendant to the Plaintiff. 4. That in default of order (3) above the Deputy Registrar of the Environment and Land Court at Nairobi is directed to execute all requisite conveyancing documents and obtain all necessary consents to effect transfer of the Suit Land Title No. LR NO 15400/67(IR 115919) to the Plaintiff’s name without any further delay. 5. That the Land Registrar, Nairobi County, is directed to issue a title deed in the name of the Plaintiff for the Suit Land LR NO 15400/67(IR 115919) without requiring production of the original title deed for cancellation or surrender. 6. There shall be no orders as to costs. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** via e-mail at **NAIROBI** on this **15th** day of **July ,2026.** **MOHAMMED N. KULLOW** **JUDGE**