https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4285

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC CASE NO. E007 OF 2021 (OS)** **MURITHI M. NGARI……………...……………………APPLICANT** **VERSUS** **PAUL NYAGA NTHIGA……………………….....1ST RESPONDENT** **BONIFACE MUGO KATHENDU…..…..….......2ND RESPONDENT** **JUDGMENT** 1. The Applicant, who claims to be the beneficial owner and occupant of the land known as Embu Municipality 1485 and 1423 commonly known as Muriithi’s Furniture Shop (the suit land) filed the Originating Summons dated 19/2/2021 seeking a declaration that he had become entitled to these parcels of land through adverse possession and that the titles over the two parcels of land had been extinguished in his favour pursuant to Sections 37 and 38 of the Limitations of Actions Act. He sought an order directing the Land Registrar to register him as the proprietor of those parcels of land and a temporary injunction to restrain the Respondents from interfering with his ownership, possession, enjoyment and use of the land. 2. The Applicant swore the affidavit in support of the Originating Summons, in which he deponed that he had carried on carpentry business on the suit land since 1988. Initially, he traded as Muriithi’s Furniture Workshop but the trade name was changed to Murifarm Furniture’s. He claimed that he previously paid licence fees to the Embu Municipal Council and currently was paying the Embu County Government. Further, that he had developed the two plots as one with a workshop and was letting out part of it for monthly rent. 3. He claimed that the authorities and neighbours knew that he was occupying the suit land as his own. He deponed that the 1st Respondent filed ELC No. 111 of 2017 at the High Court in Embu but the court ruled that it lacked jurisdiction to entertain the suit. That he continued occupying and doing business on the suit land. Sometime in 2019, the 1st Respondent went to his workshop and informed him that they would not pursue the court case but would use alternative means to evict him from the suit land. His response to the 1st Respondent was that he had occupied the suit land for over 20 years and should have been given priority by the government when the land was allocated. 4. He claimed that the 2nd Respondent, who was the land registrar in Embu, went to the workshop and informed him that he was in the process of getting the title deed. He did not hear from the Respondent until January 2021 when people went to the workshop claiming that they intended to buy his property. He exhibited a copy of the title for parcel number 1485 and survey plan for the area. The title deed shows that the 1st Respondent was registered as the owner of the suit land in 2015 while he was in occupation. 5. The Applicant claimed that he had been in active occupation of the two parcels of land with the knowledge of the Respondents without paying them any rent, licence fees or other consideration in a manner adverse to their interest. He argued that his family had enjoyed uninterrupted continuous possession of the suit land for over 20 years. Further, that they had built a business on the land for over 20 years and it was the place where they lived and earned a living. 6. Paul Nyaga Nthiga swore the replying affidavit in his capacity as the guardian of the 1st Respondent. He averred that the 1st Respondent was the registered owner of parcel number 1485 measuring approximately 0.025 hectares (ha) and that he was issued a lease on 2/12/2015. He deponed that the Applicant entered the 1st Respondent’s land in 2009 after operating his workshop on a plot along Mama Ngina Street. The 1st Respondent issued a demand letter dated 22/6/2016 to the Applicant to remove the structures he had built on the land. When he failed to do so, the Ministry of Lands, Water Environment and Natural Resources issued another letter dated 24/10/2016 requiring the Applicant to submit ownership documents in support of his occupation of the plot. 7. Mr. Nthiga stated that the 1st Respondent filed a suit seeking eviction of the Applicant in 2017. The Applicant filed a defence in which he denied that he was in occupation of plot number 1485. He averred that ELC Case No. 111 of 2017 was still pending determination. He explained that the Applicant had constructed a temporary carpentry shop on the 1st Respondent’s plot which is what he wanted removed from the suit land. He deponed that the Applicant had not acquired the 1st Respondent’s plot through adverse possession because he was issued a notice to vacate the plot in 2015 upon issuance of the lease to the 1st Respondent. He produced a copy of the certificate of lease issued on 2/12/2015 to Eliud Nthiga Nyaga together with the copy of title and plaint in ELC No. 111 of 2017. 8. The 2nd defendant filed a replying affidavit in which he denied that the Applicant had occupied his parcel of land for more than 12 years or that he had paid for licenses to the County Government of Embu. He deponed that he sued the Applicant in 2012 and that the computation of time for purposes of adverse possession could only start from 2012. 9. The hearing of the suit proceeded on 13/10/2025. The plaintiff gave evidence and adopted the supporting affidavit. On cross-examination, he stated that before 2014, the plot was a road reserve. He conceded that the licenses which he produced did not bear the land reference number. He stated that he had been given a temporary occupational license for the land. He did not have a permanent building and operated his timber business from temporary structures. He used the land as a business premise not residential. He stated that he applied for allocation of the plot but was told to wait. He maintained that the plot was not on Mama Ngina Street and that it was on a street without a name. 10. Regarding parcel number 1423, he did not know when the 2nd Respondent was given a lease and what the land was reserved for. He stated that he entered the land in 1988 with the permission of the Town Clerk and built a shade. He applied for allocation of the plot since 1990 and was told it was a road reserve and that he would be given the land if things changed. He denied moving from Shauri. He confirmed that he only paid licence fees but not rent or rates. He paid for single business permit. He sued the people who wanted to evict him from the plot on which he carried out business. 11. Meggy Wa Mbeti Murithi gave evidence. She stated that she was born in Embu in 1987. The plaintiff is her father. The business and the property has been their source of livelihood since she was born. They were shocked to discover that their father had been sued over the ownership of the land. She confirmed that her father had been operating a woodwork workshop on the land on structures made of timber and iron sheets. She explained that the workshop was on the road to Blue Valley. They did not live on the plot. 12. Paul Nyaga Nthiga gave evidence and adopted his replying affidavit. He confirmed that neither he nor the 1st Respondent had occupied the suit land. His father was registered as the owner of the land in December 2015. 13. The 2nd Respondent testified and similarly adopted his replying affidavit. He conceded that he used to work at the lands office as the Embu Land Registrar. The lease which he produced was in the name of Lucy Igoki Mugo, his spouse. He stated that his wife and he had never occupied parcel number 1423 and that the plaintiff ad been in occupation. He stated that he did not own parcel number 1423. 14. The court directed parties to file written submissions, which it has considered. The Applicant relied on Sections 7, 37 and 38 of the Limitations of Actions Act. He relied on the decision in **Wambugu v Njuguna [1983] KLR 172** where the court stated that time for adverse possession started running when the true owner was dispossessed of the land or discontinued possession of it. He maintained that he entered the land in 1987 and had been in continuous occupation of the land without dispute until 2015. He added that his occupation was open, notorious, exclusive and hostile. 15. He argued that the Respondents acquired title in 2015 after he had established occupation. He contended that the evidence demonstrated that the parcels of land in question did not have registration numbers prior to 2015. He maintained that registration of title did not extinguish the rights acquired by adverse possession and that the registered proprietor held such land subject to the overriding interest. He urged that the Respondents demand that he vacate his workshop after over 3 decades of peaceful occupation was inequitable and contrary to Article 40(6) of the Constitution, which protects property rights. 16. He pointed out that the 2012 and 2017 suits were dismissed or found to have been filed before courts lacking jurisdiction. He added that the filing of a suit alone did not stop time from running unless possession was disturbed. He urged that his occupation remained uninterrupted adverse before time lapse in his favour. 17. The 1st Respondent submitted that the plaintiff admitted during cross examination that parcel number 1485 was the property of the Embu County Council when he entered the land in 1988. But he also admitted that the land was marked as a road reserve and was given to him to occupy on a temporary basis which is why he put up temporary structures where he carried out his carpentry work. The 1st Respondent submitted that he successfully applied for and was allocated parcel number 1485. The County Government of Embu issued a certificate of lease to him on 2/12/2015. He maintained that time started running against him from 2/12/2015. 18. The 1st Respondent submitted that the Applicant did not sue the County Government of Embu as the previous owners of the land. That when it comes to adverse possession, time did not run against a County Council, Municipal Council, County Government or the National Government. He relied on **Orpha Atieno Ongwen & Another v Prof. Shellemiah Oloth Kenya & Another** where the court observed that time did not run against the Government. He also cited **Lydia Mbeca Wambugu v William Gituri Mugi [2022] KEELC 4930 (KLR)** where the court held that time started running when an allottee is registered as proprietor of the suit land. 19. The 2nd Respondent submitted that there could be no claim of adverse possession against the Government or its agencies in respect of public or unalienated land. He cited **Chevron (K) Limited v Harrison Charo Washitu [2016]EKLR** where the court held that public land or land held by a public body could not be claimed through adverse possession because time cannot run against the Government. The 2nd Respondent cited Section 37 of the Limitation of Actions Act which excludes public land from adverse possession. He argued that any occupation of the land before 2022 when it was allocated to Lucy Igoki Mugo could not found a claim for adverse possession because the land was still public land. 20. The 2nd Respondent submitted that the Applicant sued the wrong party because the suit land was registered in the name of Lucy Igoki Mugo. He maintained that no relief for adverse possession could be issued against him. He added that the Applicant had failed to prove that he was in continuous, exclusive and hostile possession for 12 years. He pointed out that the Applicant’s testimony revealed that he applied to be allocated the plot, which implied permission and not hostility. Further, he did not know when the land was converted from a road reserve to private plots. He maintained that for purposes of adverse possession, time could not run before 2022. He invited the court to dismiss the suit and award him costs. 21. The issue for determination is whether the Applicant has proved on a balance of probabilities that he is entitled to be registered as the owner of parcels numbers 1485 and 1423 through adverse possession. 22. The title over Embu Municipality/1485 reflects that the County Government of Embu as lessor granted the 1st Respondent a lease for 99 years from 1/8/1997. The Plaintiff should have applied for allocation of the suit land from the County Government of Embu or its predecessor. Claim for adverse possession fails. Should have challenged the allocation of the suit land to the Defendants. The 2nd defendant’s title was issued in 2015. By 2021 when the Applicant filed suit, he had not occupied the land for the statutory period of 12 years. His claim is relates to the lessor’s failure to allocate him the suit land and is not premised on adverse possession against the Respondents. 23. The 2nd Respondent pointed out that the certificate of lease over Embu Municipality/1423 was registered in the name of Lucy Igoki Mugo. The court agrees with the 2nd Respondent that he was wrongly sued in this suit. 24. The plaintiff failed to prove his claim against the Respondents on a balance of probabilities. 25. The court declines to grant the reliefs sought in the OS dated 19/2/2021. Each party will bear its costs. Delivered virtually at Bungoma this 30th day of June 2026. **K. BOR** **JUDGE** **In the presence of: -** Mr. A. Lochi holding brief for Ms. W. Thindigua for the Applicant Ms. L. Njagi holding brief for Mr. J. Kathungu for the 1st Respondent Court Assistant- Diana Kemboi No appearance for the 2nd Respondent