https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4012

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCOS CASE NO. E005 OF 2024** **CYPRIAN MURIITHI MUNYI.............................1ST PLAINTIFF/APPLICANT CABINDA NGUNGI NJUKI.............................2ND PLAINTIFF/APPLICANT MARY NGINYA NJUKI....................................3RD PLAINTIFF/APPLICANT GABRIEL NJUE NJUKI.....................................4TH PLAINTIFF/APPLICANT LUCETA MUTHONI NJUKI.............................5TH PLAINTIFF/APPLICANT ROBERT NTHIGA NJUKI.................................6TH PLAINTIFF/APPLICANT** **VERSUS** **SCORASTICA MUTHONI NYAGA.............1ST DEFENDANT/RESPONDENT GEORGE NYAGA CHAGARA..................2ND DEFENDANT/RESPONDENT MARGARET MBUCU NGUKU.................3RD DEFENDANT/RESPONDENT VENINA KAARI NJUE..............................4TH DEFENDANT/RESPONDENT JANE GAACA NJERU..............................5TH DEFENDANT/RESPONDENT JOB NYAGAH NJAGARI..........................6TH DEFENDANT/RESPONDENT** **JUDGMENT** The Plaintiffs commenced these proceedings by an Originating Summons dated 6th February 2024 seeking principally a declaration that they have acquired by adverse possession a portion measuring 1.20 hectares (approximately 3 acres) out of Land Parcel No. NTHAWA/GITIBURI/965 and consequential orders directing its registration in their names. In the alternative, they sought a declaration that the Defendants hold the said portion in trust for them. The Plaintiffs' case is that their late father, Njuki Munyi, purchased three acres from the Defendants' late father, Nyaga Njagari, in 1984, immediately took possession thereof, settled his family on the land, and remained in uninterrupted occupation until his death. They contend that they have continued occupying the same portion openly, exclusively and without interruption for over thirty-nine years, during which period they have constructed permanent houses, buried their father on the land, planted trees, muguka, mangoes and other crops, and extensively developed the property. They maintain that although the land was subsequently transmitted to the Defendants through succession proceedings, their occupation remained uninterrupted and they have consequently acquired title by adverse possession. The Defendants opposed the suit. They denied that their late father sold any portion of the suit property to the Plaintiffs' father and contended that the alleged sale agreement is invalid, inadmissible and incapable of enforcement. They maintained that the Plaintiffs' father merely occupied the land with the permission of their late father and was allowed to reside and cultivate one acre. They further argued that the Plaintiffs' father never sought transfer of the alleged purchased land, never obtained Land Control Board consent and never challenged the succession proceedings through which the Defendants became registered proprietors. Having considered the pleadings, the evidence, the exhibits and the submissions filed by the parties, the issues falling for determination are: 1. Whether the Plaintiffs have established a claim for adverse possession over the suit property. 2. Whether the Plaintiffs have proved the alternative claim based on trust. 3. What orders should issue. The law governing adverse possession is found in Sections 7, 13, 17 and 38 of the Limitation of Actions Act. The principles applicable have been consistently stated by the Court of Appeal in *Samuel Miki Waweru v Jane Njeru Richu*, Civil Appeal NO. 122 OF 2001 (2007) KECA 465 (KLR) and *Gabriel Mbui v Mukindia Maranya (1993) eKLR* and numerous subsequent decisions. A claimant must demonstrate actual, open, exclusive, continuous and uninterrupted possession of the land for at least twelve years in a manner inconsistent with the rights of the registered owner. The evidence before the Court leaves no doubt that the Plaintiffs and before them their late father have occupied the disputed portion continuously since 1984. Significantly, DW1 candidly admitted during cross-examination that the Plaintiffs have lived on the suit land from 1984 to date. There is equally no dispute that the Plaintiffs have erected permanent homes, planted permanent crops and buried their father on the land. These acts are entirely consistent with ownership and demonstrate actual possession. The Defendants however contend that such occupation was by permission of their late father and therefore could not become adverse. The Court has carefully considered that argument. The Plaintiffs' own evidence is that their father entered the land pursuant to a sale agreement. Although the Defendants challenge the validity and admissibility of the agreement, the significance of that document in these proceedings is not whether it transferred title, but whether it explains the origin of possession. Kenyan courts have consistently held that where a purchaser takes possession pursuant to a sale agreement that subsequently becomes incapable of completion, time for purposes of adverse possession begins to run once the purchaser remains in possession without completion of the transaction and the vendor fails to assert his rights. The Court of Appeal in *Public Trustee v Wanduru* Ndegwa (1984)KECA 72(KLR) and subsequent decisions including *Gabriel Mbui v Mukindia Maranya (supra)* affirmed that such possession may eventually mature into adverse possession. The Plaintiffs' father entered into possession in 1984 and remained there until his death. No evidence was produced showing that the vendor or his successors ever recovered possession, instituted proceedings for eviction or otherwise interrupted the Plaintiffs' occupation. Indeed, even after the succession proceedings culminating in transmission of the land to the Defendants, the Plaintiffs remained in uninterrupted possession. The Defendants have argued that the Plaintiffs' father never objected during the succession proceedings. In this Court's view, failure to participate in succession proceedings does not extinguish rights arising under adverse possession. Such rights accrue by operation of statute through long uninterrupted possession and bind successors in title. Registration of the Defendants through transmission did not interrupt time that had already accrued against the estate of the deceased proprietor. The Court also finds no merit in the submission that absence of Land Control Board consent defeats the present claim. The Plaintiffs are not seeking specific performance of the alleged sale agreement. Their claim is founded upon adverse possession under the Limitation of Actions Act. Consequently, the validity or otherwise of the agreement is not determinative of the claim. The evidence before Court overwhelmingly establishes that the Plaintiffs' occupation has been open, notorious, exclusive and uninterrupted for nearly four decades. The Defendants have never occupied the disputed three-acre portion nor demonstrated any acts amounting to interruption of possession. The statutory period of twelve years had long lapsed even before transmission of the property to the Defendants. Having found that the Plaintiffs have established adverse possession, it becomes unnecessary to determine the alternative claim based on customary trust. Accordingly, the Court is satisfied that the Plaintiffs have proved their case on a balance of probabilities. Consequently, judgment is entered for the Plaintiffs against the Defendants in the following terms: 1. A declaration is hereby issued that the Defendants' title over a portion measuring **1.20 hectares (approximately three (3) acres)** comprised in Land Parcel No. **NTHAWA/GITIBURI/965** has been extinguished by operation of Sections 7, 13, 17 and 38 of the Limitation of Actions Act. 2. A declaration is hereby issued that the Plaintiffs have acquired title by adverse possession over the said portion measuring **1.20 hectares (approximately three (3) acres)** out of Land Parcel No. **NTHAWA/GITIBURI/965**. 3. An order is hereby issued directing that the said portion measuring **1.20 hectares (approximately three (3) acres)** be excised from Land Parcel No. **NTHAWA/GITIBURI/965** and be registered jointly in the names of the Plaintiffs. 4. The Land Registrar, Embu County, shall give effect to this judgment upon survey and excision of the said portion. 5. In default of execution of the necessary transfer documents by the Defendants within thirty (30) days of this judgment, the Deputy Registrar/Executive Officer of this Court shall execute all necessary documents on their behalf. 6. Given that the parties are close relatives and the dispute arises from a long-standing family land transaction, each party shall bear its own costs. It is so ordered. DATED, DELIVERED AND SIGNED AT EMBU THIS 2ND DAY OF JULY, 2026 **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Mr. Ndana for the Plaintiff/Applicant 2. M/S Wanjiku H/B Mr Njiru Mbogo for Defendant/Respondent 3. Ruth C/A