https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4479

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCLOS NO. E026 OF 2024** **VERONICA WAIRIMU MBURU (Suing as the Personal Representative of the Estate of JAMES EDWARD MBURU)..…………..…………………APPLICANT** **VERSUS** **DAVID GATEHI THUO………………………….……………1ST RESPONDENT** **DENKO PROPERTIES LTD……………………….………….2ND RESPONDENT** **JUDGMENT** 1. The Plaintiff filed this suit by an Originating Summons dated 10/12/2024 claiming ownership of Land Reference Number **RUIRU EAST/JUJA EAST BLOCK 2/1091** by way of adverse possession. 2. This suit is brought under Order 37 Rule 7(1), (2) and (3) of the Civil Procedure Rules 2010 and Section 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya). The Application is filed by Veronica Wairimu Mburu (Administrator of the Estate of James Edward Mburu) who claims the following relief: 3. A declaration that the title currently registered in the name of the 2nd Defendant being land parcel no. **RUIRU EAST/JUJA EAST BLOCK 2/1091** has been extinguished and now belongs to the estate of **JAMES EDWARD MBURU**. 4. An order do issue requiring and directing the Land Registrar Ruiru to register land parcel No. **RUIRU EAST/JUJA EAST BLOCK 2/1091** now registered in the name of the 2nd Defendant to be registered in the name of the estate of **JAMES EDWARD MBURU** (Deceased). 5. An order for costs of and incidental to this suit. 6. Such other further relief as the nature of the case may require or this Honourable Court may deem fit to grant. 7. The Summons is supported by the annexed Affidavit of Veronica Wairimu Mburu on the grounds that: 8. The deceased, James Edward Mburu, entered into quiet, open, uninterrupted, and exclusive possession of the suit property, land parcel No. RUIRU EAST/JUJA EAST BLOCK 2/1091, as of right. 9. The Applicant/the estate of the deceased has been in continuous occupation and possession of the suit property for a period exceeding twelve (12) years without any interruption or permission from the registered owner. 10. By operation of Section 38 of the Limitation of Actions Act (Cap 22), the Respondent's title to the suit property has been extinguished by way of adverse possession. 11. It is just and equitable that the Land Registrar be ordered to register the property in the name of the estate of James Edward Mburu (Deceased). 12. In the Supporting Affidavit, Veronica Wairimu Mburu, avers that she is the legally appointed Administrator *ad litem* of the Estate of her late husband in 2017. She has attached a copy of Letters of Administration Ad Litem marked as marked **"A"**. She avers that the historical basis of the estate's claim traces back to 1986, when her late husband purchased the suit property, logically identified as land parcel number **RUIRU EAST/JUJA EAST BLOCK 2/1091**, from the 1st Defendant. Following the transaction, the deceased submitted the requisite documentation for the processing and issuance of the title deed. However, all subsequent efforts to follow up on the registration progress proved futile, prompting the Applicant to eventually conduct an official search on the property’s register. 13. Regarding possession and use, the Applicant states that she and her deceased husband took physical possession of the suit property in 1986. Since their entry, the property has been utilized exclusively and continuously for farming activities up to the present date. As evidence of this current and ongoing occupation, the Applicant has attached photographs of the suit property showing active farming of maize and beans at the time of filing this suit, which are annexed and marked **"B"**. 14. The Applicant further states that the 1st Defendant vanished immediately after the sale transaction and their current whereabouts remain entirely unknown. In the intervening period, the 2nd Defendant irregularly and without legal basis purported to register itself as the owner of the suit property. This registration was achieved through fraudulent, deceitful, and illegitimate means at the land’s registry, utilizing false pretences that the original title deed was lost, despite the absolute lack of legitimate supporting transfer documents. This fraudulent history is captured on the official land register, a copy of which is annexed and marked **"C"** (the Green Card). 15. The deponent maintains that the 2nd Defendant has never occupied or possessed the suit property and holds no legal foundation to lay any claim to it. Conversely, the Estate of the late James Edward Mburu has exercised absolute, open, continuous, notorious, and uninterrupted rights of ownership and occupation from 1986 to date, spanning a period well under the statutory threshold. 16. Consequently, the Applicant prays for a declaration that the Estate has legally acquired absolute rights of ownership to land parcel **RUIRU EAST/JUJA EAST BLOCK 2/1091** by way of adverse possession under the Limitation of Actions Act. She concludes by stating that the estate stands to suffer irreparable loss and damage unless this Honourable Court intervenes to grant the reliefs sought, verifying that all facts deponed therein are true to the best of her knowledge, information, and belief. 17. Despite service vide substituted service, upon the 1st and 2nd Defendants, David Gatehi Thuo and Denko Properties Limited. Pursuant to a Court order dated 23/07/2025, they never filed any response. 18. The Applicant filed written submissions dated 23/03/2026 and submitted that she has fully satisfied the statutory and common law thresholds for adverse possession under Sections 7 and 38(1) of the Limitation of Actions Act (Cap 22). She submitted that the Applicant has demonstrated continuous, open, and uninterrupted occupation of the suit property, namely Land Parcel No. RUIRU EAST/JUJA EAST BLOCK 2/1091, for an uninterrupted duration of thirty-nine years, dating back to 1986 when her late husband purchased the portion from the 2nd Defendant. This long-standing physical possession, characterized by the seasonal farming of maize and beans, has been exercised *nec vi, nec clam, nec precario* meaning without force, without secrecy, and without license to the complete exclusion of the registered owner, whose title stands extinguished by effluxion of time and who has omitted or neglected to assert any right of re-entry. 19. Invoking the *locus classicus* authorities of **Mtena** **Lewa v Kahindi Ngala Mwagandi (Civil Appeal 56 of 2014) [2015] KECA 532 (KLR)** and **Jandu v. Kirpal & Another [1975] EA 225,** the Applicant submits that the 2nd Defendant's recent fraudulent transfer of the suit property to the 1st Defendant cannot defeat a prescriptive title that had already crystallized by decades of adverse possession. The Applicant therefore prays that the Originating Summons be allowed as prayed to facilitate the registration of the estate of James Edward Mburu as the absolute proprietor of the suit land. 20. On the question of costs, the Applicant submits that it is trite law under Section 27 of the Civil Procedure Act (Cap 21) that costs follow the event; hence, the Applicant, having established a meritorious case against the non-responsive Defendants, is fully entitled to the general costs of this suit. 21. This suit was initiated by way of an Originating Summons dated 10/12/2024, seeking a declaration of ownership by way of adverse possession over land parcel number **RUIRU EAST/JUJA EAST BLOCK 2/1091** which is the suit property. Despite being duly served via Court-ordered substituted service in the *Daily Nation* newspaper on 29/09/2025, both Respondents failed to enter an appearance or file responses. The matter proceeded by way of formal proof on 26/11/ 2025. 22. This Court has critically evaluated the uncontroverted Affidavit and oral evidence tendered by the Applicant. While the suit is undefended, the legal burden remains on the Applicant to establish her case on a balance of probabilities as underscored in **Kirugi & Another v Kabiya & 3 Others (1987) KLR 347- Civil Appeal 80 of 1982**. The Court of Appeal established that the burden on a Plaintiff to prove their case remains exactly the same, even if the suit is undefended. The Court held that a Defendant's failure to contest a case does not constitute an automatic win, requiring the Plaintiff to formally prove claims on a balance of probabilities. The Court stated: ***"The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof."*** 1. The burden is always on the Plaintiff to prove their case on a balance of probabilities and that burden was not lessened even if the case was heard by way of formal proof. In line with the above holding, the Applicant was expected to prove three prerequisites forming the threshold for proof of adverse possession namely, continuity, publicity, and extent. In **Kasuve versus Mwaani** **Investments Limited and 4 Others, [2004] 1KLR 184,**the Court was emphatic that in order to be entitled to land by adverse possession, the claimant must prove that he had been in exclusive possession of the land openly and as of right and without interruption for a period of twelve (12) years, either after dispossessing the owner or by discontinuance of possession by the owner on his own volition. See also **Jandu versus Kirpal [1975] EA 225;** **Ng’ati Farmers’ Co-operative Society Ltd versus Councilor Ledidi & 15 others Nakuru CA No. 64 of 2004; Francis Gicharu versus Peter Njoroge Mairu Civil Appeal No. 293 of 2002; Kimani Ruchine versus Shift Rutherford & Co. Ltd [1980] KLR10; Benjamin Kamau Murima & others versus Gladys Njeri, Civil Appeal No. 213 of 1996; Wasui versus Musimba [2002] KLR 396**;**Kweyu versus Omuto [1990] eKLR 709.** 2. To adequately determine the commercial and proprietary rights flowing from an uncontested claim of adverse possession, the Court must extract and resolve the following fundamental issues: 3. *Whether the failure of the Defendants to enter an appearance or file a defense automatically entitles the Applicant to judgment, and what standard of proof applies in a formal proof hearing.* 4. *Whether the Applicant has discharged both the legal and evidentiary burdens to prove actual, visible, exclusive, hostile, and open possession for the mandatory statutory period of twelve years.* 5. *Whether time under the Limitation of Actions Act begins to run upon entry under a sale agreement where the vendor fails to convey title, or whether the relationship remains permissive.* 6. *Whether the doctrine of adverse possession survives the stringent constitutional protections of private property rights under modern land registration regimes.* 7. To appreciate the substantive ingredients and the efficacy of adverse possession, reference is made to **Halsbury’s Laws of England (4th Edition, Volume 28)**, which states that adverse possession requires the coexistence of two distinct elements, namely the absence of the true owner's actual possession (discontinuance or dispossession) and the actual, wrongful possession by the claimant. Black’s Law Dictionary defines adverse possession as the enjoyment of land, under such circumstances as, under the applicable statute of limitations, will change the possession into a title in the possessor. To transform a history of trespass into a lawful root of title, the possession must be structurally sound. 8. Turning to the specific provision of law under which the Applicant’s Originating Summons (herein O.S) was premised, it is not disputed that the Applicant premised her O.S on Section 38 (1) of the Act. It provides:- **“38(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37, 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.”** 1. In the English landmark case of **J A Pye (Oxford) Ltd v Graham [2002] UKHL 30,** Lord Browne-Wilkinson illuminated the dual requirements of physical possession (*factum possessionis*) and the intention to possess (*animus possidendi*) by stating that there are two elements necessary for legal possession: first, a sufficient degree of physical custody and control (*factum possessionis*); and second, an intention to exercise such custody and control on one's own behalf and for one's own benefit (*animus possidendi*). In the context of physical acts like the seasonal farming of maize and beans cited by the Applicant, the Court must question if such actions are sufficiently exclusive or clear to dispossess a registered entity. The African jurisprudence on this is strict. In the Supreme Court of Ghana case of **Kusi & Kusi v. Bonsu (2010) SCGLR 60,** the bench observed that acts of user, such as occasional cultivation or cutting of firewood, are not per se conclusive evidence of adverse possession unless they are of such a nature as to give a clear and unambiguous signal to the true owner that his title is being challenged. Furthermore, the Court of Appeal of Kenya in **Kasuve v Mwaani Investments Ltd & 4 Others (supra)** stressed the distinct parameters of the doctrine. 2. The Applicant has proved her status as the legal administrator *ad litem* of the estate of the late James Edward Mburu (Annexure **"A"**). She has established that the deceased took physical possession of the suit property in 1986 following an incomplete sale transaction with the 1st Respondent, and that the estate has openly, continuously, and exclusively cultivated the land for thirty-nine (39) years without interruption or permission (Annexure **"B"**)**.** 3. A critical substantive issue is that the late husband's possession originated from a purchase agreement in 1986. Under traditional conveyancing principles, entry onto land under an agreement for sale is deemed permissive (a license), meaning it cannot initially be hostile or adverse. However, emerging Kenyan and Commonwealth jurisprudence handles this scenario with pragmatic flexibility. When the purchaser pays the purchase price (or part of it) and takes possession, but the vendor defaults on executing the formal transfer, the license mutates. In **Chandrakant Devraj Shah v Alibhai Haji & Another (2018) JELR 103318 (CA),** the Court of Appeal evaluated this exact paradigm, noting that time begins to run against the vendor from the moment the contract stalls and the purchaser treats the land purely as their own. This tracks the reasoning in the classic English decision of **Bridges v Mees [1957] Ch 475**, where Harman J. noted that a purchaser who has paid his purchase money and been let into possession is an adverse possessor against the vendor from the moment the vendor becomes a trustee for him, provided his possession is inconsistent with the title of the vendor. 4. This doctrine of adverse possession has also faced contemporary constitutional challenges, with critics arguing that allowing a trespasser to strip a registered owner of land runs contrary to the protection of private property enshrined under Article 40 of the Constitution of Kenya. The definitive turning point came through the Supreme Court of Kenya in the monumental decision of **Willy Kimutai Kitilit v Michael Kibet [2018] eKLR.** The Apex Court upheld the constitutional validity of adverse possession, viewing it as a public policy mechanism to encourage the productive use of land and punish owners who sleep on their rights, embodying the maxim *vigilantibus non dormientibus jura subveniunt*. The Supreme Court explicitly stated that the doctrine of adverse possession does not unconstitutionally violate private property rights under Article 40 of the Constitution; rather, it sets a statutory limitation period within which a land owner must assert their rights, failing which their right of action is extinguished by operation of law. 5. In conclusion, even in an undefended action, the Applicant must fully satisfy the Court on a balance of probabilities that the statutory requirements have been met. The Applicant has provided a clear chronological line of evidence, starting with entry under a purchase agreement in 1986, followed by thirty-nine years of continuous occupation, exclusive open agricultural use consisting of maize and beans, and total neglect by the registered owner to assert any right of re-entry. By applying the principles from **J A Pye (Oxford) Ltd, Chandrakant Devraj Shah,** (supra) and the constitutional baseline in **Willy Kimutai Kitilit,** **(supra)** the Applicant has successfully demonstrated both *factum possessionis* and *animus possidendi*. The title of the Respondent has effectively been extinguished by operation of Section 38 of the Limitation of Actions Act. The claim is legally solid, and the prayers for registration are fully merited. 6. Accordingly, this Court hereby issues the following final orders: 7. ***A declaration is hereby issued that the registered title currently held by the 2nd Respondent, DENKO PROPERTIES LIMITED, over all that parcel of land known as RUIRU EAST/JUJA EAST BLOCK 2/1091, has been extinguished by operation of law under Section 38 of the Limitation of Actions Act (Cap 22) by way of adverse possession, and that the said suit property now absolutely belongs to the Estate of James Edward Mburu (Deceased).*** 8. ***An order is hereby issued directing and compelling the Land Registrar, Ruiru, to cancel the registration of DENKO PROPERTIES LIMITED from the property register/Green Card of land parcel number RUIRU EAST/JUJA EAST BLOCK 2/1091, and to register in place thereof Veronica Wairimu Mburu (as the Administrator of the Estate of JAMES EDWARD MBURU) as the absolute, lawful proprietor of the suit property.*** 9. ***An Order is hereby issued directing that the costs of and incidental to this suit shall follow the event pursuant to Section 27 of the Civil Procedure Act (Cap 21) and shall be borne entirely by the 1st and 2nd Respondents jointly and severally.*** Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 16TH DAY OF JULY 2026.** **...........................** **MOGENI J** **JUDGE** **In the presence of:-** Miss Kanjiri holding brief for Mr. Mugo for the Applicant 1st and 2nd Respondents – Absent Mr. Melita - Court Assistant **...........................** **MOGENI J** **JUDGE**