https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4446

Mwangi v Mwangi & 2 others (Enviromental and Land Originating Summons E033 of 2025) [2026] KEELC 4446 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEELC 4446 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Enviromental and Land Originating Summons E033 of 2025 MN Gicheru, J July 15, 2026 Between Francis Thuri Mwangi Plaintiff and Jane Warucu Mwangi 1st Defendant David Mukuna Mwangi (The Representatives of the Estate of Joseph Mwangi Maina (Deceased)) 2nd Defendant Kenya Commercial Bank Ltd 3rd Defendant Judgment 1.In the originating summons dated 16-8-2024, the Applicant seeks the following orders.1.A declaration that the deceased Joseph Mwangi Maina was the bona fide purchaser for value of land parcel No. Loc.2/Mariira/T.78 at a public auction held on 2-3-1982 by Thika Auctioneers and General Merchants on behalf of the 3rd Respondent M/s Kenya Commercial Bank Ltd.2.A declaration that the Applicant is now the bona fide purchaser for value of land parcel No. Loc.2/Mariira/T.78 after purchasing the same from the deceased on 27-1-1987 through a willing buyer willing seller basis.3.That the Respondents jointly and severally be and are hereby ordered to facilitate the transfer of the suit land to the Applicant within 30 days from the date of this order.4.That in default of prayer 3 herein above, the Land Registrar to dispense with the production of the original title deed held by the 3rd Respondent and the discharge of charge from the 3rd Respondent and the Deputy Registrar of this Court be and is hereby authorized to execute the discharge of charge forms and transfer by charge in exercise of power of sale forms and/or any other relevant forms that may be required by the Land Registrar to effect transfer of the suit parcel to the Applicant.5.That this court do hereby declare the Applicant Francis Thuri Mwangi the undisputed owner of the suit parcel on the doctrine of adverse possession having occupied the same quietly and peacefully for 37 years.6.That the costs of this summons be borne by the Respondents. 2.The summons is supported by the affidavit of the Applicant dated 16-8-2024 in which he depones as follows. Firstly on 27-1-1987 he was approached by one Joseph Mwangi Maina who wished to sell the suit land for Kshs. 15,000/=. He accepted the offer and paid a sum of Kshs. 6,200/= after a sale agreement was drafted and signed by the parties and witnessed by D.N. Karanja and Co. Advocates. The balance was also paid in full as per the sale agreement. On completion, Joseph Mwangi Maina showed the Applicant the suit land and the Applicant took possession thereof. When the Applicant demanded transfer of the suit land, the vendor informed him that he had purchased it at a public auction held at Mariiria Shopping Centre conducted by Thika Auctioneers and General Merchants on 2-3-1982 after they had been instructed by the 3rd Respondent through their lawyers Hamilton, Harrison and Mathews after the charger defaulted on loan repayment. The charger was Symon Mwangi Gakunga. 3.Secondly, after the payment, the auctioneer tendered the chargors land certificate, certificate of sale, particulars of property and conditions of sale and memorandum of sale endorsed by the parties. The purchaser Joseph Mwangi Maina took those documents to his advocates M/s R.M. Kimani and Co. Advocates who were practicing at Murang’a town in order to effect the transfer for him and become the new title holder. The advocate who was given the documents passed away before he could effect the transfer. The Applicant continued to demand for the transfer orally at the office of the advocate but he learnt that the documents got mixed up. The Applicant tried all that he could and he instructed the firm of Ombodi Otieno and Opondo Advocates to demand for the missing documents. The documents were thoroughly searched for to no avail. 4.Thirdly, in the course of seeking the said records, it was found out by the law firm hired by the Applicant that the 3rd Respondent did not prepare the discharge of charge and transfer forms as nobody made a follow up of the matter after the sale. The Applicant did not tire in his quest to obtain the title documents and he engaged another law firm, Milimo, Muthomi and Co. Advocates on behalf of Joseph Mwangi Maina who had by then passed on. The firm wrote to the 3rd Respondent forwarding the available documents as proof of the sale at the auction. In the meantime, the auctioneer’s firm which conducted the sale wound up after the auctioneer died on 2-3-1982. 5.Fourthly, the 3rd Respondent declined to execute the transfer documents despite several reminders and this forced the Applicant to seek court redress vide Kigumo ELC Case No. 26 of 2018. After a long period of waiting the Court declined to grant the orders sought on the grounds that the claim was statute barred. 6.Finally, the Applicant now lives on the suit land where he has constructed a permanent house but is unable to be registered as the owner for the challenges that he has enumerated. 7.The originating summons is opposed by the third Respondent through grounds of opposition dated 18-4-2026. The said grounds read as follows. One, the originating summons is misplaced and bad in law and therefore without merit. Two, the issues raised in the summons particularly paragraphs 20 and 21 of the supporting affidavit were raised in the originating summons in ELC Case No. 26 of 2018 at Kigumo Law Courts. The present suit is a repetition of the same issues and is therefore res judicata and incompetent. Three, the present suit raises only an administrative issue of loss of title documents and for which there a clear procedure in law on how to obtain fresh documents without the court’s interference. Four, there is no cause of action sustainable in adverse possession against the third Defendant as it is not the registered owner of the suit property. Finally, the Applicant has not established all the essential elements for the grant of the orders sought. The originating summons should therefore be dismissed. 8.I have carefully considered the originating summons in its entirety including the affidavit and the grounds of opposition. I find that the following issues arise.a.Whether the magistrate court has jurisdiction to deal with cases of adverse possession.b.Whether the suit raises issues of adverse possession or mere loss of documents.c.Whether the 3rd Respondent is a necessary party in this case.d.Whether the Applicant has proved all the essential elements of adverse possession. 9.Looking at the first issue, it is my finding that the magistrates court has no jurisdiction in cases of acquisition of title to registered land by way of adverse possession. The reason for this is that Section 38 of the Limitation of Actions Act vests that jurisdiction in the High Court only. It provides as follows.“(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, 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.”In the case of Sugawara vs. Kivuti Appeal E141 of 2022, the Court of Appeal held that Magistrates’ courts do not have jurisdiction to hear and determine claims of adverse possession. It is my finding that the court that dealt with case No. ELC 26 of 2018 had no jurisdiction to deal with the case as it concerned adverse possession. This suit is therefore not res judicata. 10.Regarding the second issue, I find that this suit raises issues of adverse possession because the Applicant has been in occupation of the suit land for a period in excess of 12 years without the permission of the registered owner or his successors. He has also occupied the land openly, without force and as the owner to the extent of building a permanent house. The loss of documents cements rather than defeats the Applicant’s claim for adverse possession. It proves that the original entry was lawful and Applicant paid valuable consideration for the suit land. However the occupation ceased to be lawful when the seller was unable to secure the title documents. 11.As for the third issue, it is my finding, just like I found in the ruling dated 29-9-2025 that the third Respondent is a necessary party because it failed to discharge the charge thereby delaying the registration of the Applicant as the owner of the suit land. The third Respondent has not called even a single witness to explain why it refused to discharge the charge and controvert the evidence by the Applicant that the has been in occupation of the suit land since 1987. 12.Finally, it is my finding that the Applicant has proved, on a balance of probabilities that he has been in adverse possession of the suit land since 1987 a period of almost 40 years thereby exceeding the statutory period of twelve(12) years. Consequently, I enter judgment for the Applicant in terms of prayers 1,2,3,4 and 5 of the originating summons dated 16-8-2024.No orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 15TH DAY OF JULY, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistants – JacklinePlaintiff’ – Absent1st Defendant – Absent2nd Defendant – Absent3rd Defendant – Miss Swaka