https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4870

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLOS E036 OF 2025** **NDUATI GITINA………………..…………………..………………….………..… APPLICANT** **VERSUS** **NAOMI WANJIRU MWANIKI ……………………..……………..…………..RESPONDENT** **JUDGMENT** 1. In the Originating Summons dated 29-10-2025, the Applicant seeks the following orders. * + 1. **An order and a declaration that the transfer of L.R. No. Loc.2/Makomboki/180 from the Applicant to the Respondent was illegal, irregular, unprocedural and fraudulent and further orders that the same be cancelled and the land do revert to the original status in the Applicant’s name.** 2. **An order do issue empowering the Land Registrar Murang’a to effect the order in (1) above and be allowed to dispense with the production of the old titles retained by the Respondent when registering the decree of this Court for transfer of the whole land to the Applicant.** 3. **That the suit land Loc.2/Makomboki/180 measuring 3.56 Ha. held by the Respondent be declared and registered in the name of NDUATI GITINA as the registered owner.** 4. **That the Deputy Registrar of this Court do sign the application for the consent of the Land Control Board, transfer document and any other applications and documents necessary to facilitate the transfer of the suit land to the Applicant.** 5. **That the Court be pleased to order the Chairman of the Land Control Board Kigumo to sign and issue consent pertaining to all requisite documents necessary for transfer of the suit land.** 6. **That Court be pleased to order that the OCS Kangari Police Station do supervise execution.** 7. **That such other questions as may be pertinent to the case be determined and appropriate directions and orders be given.** 8. **That the costs of these proceedings be borne by the Defendant.** 2. The Applicant’s case is as follows. One, Loc.2/Makomboki/180 which measures 3.56 Ha belongs to the Applicant from the zenith to the nadir to the extent that he is absolute and indefeasible owner. The Applicant entered the suit land in the 1960s and he has substantially developed it. The occupation of the land by the Applicant has been continuous, uninterrupted and in excess of 12 years. Secondly, while the original entry was lawful it ceased to be lawful at an unexplained time and the Respondents’ title has been extinguished by operation of law because the Respondent obtained title to the suit land through a corrupt scheme. Since she was the administratix of the estate of the late Nduati Gitina, she filed Kigumo SPMCC Succession Cause No. 20 of 2012 which was determined in her favour and she got registered as the owner even though she has never stayed in the land. The confirmation of grant was done through a corrupt scheme. Fourthly, the Respondent has never objected to the Applicant’s occupation of the suit land. Finally, the Respondent wants to disinherit the Applicant of his share of the land and his efforts to settle the matter with her amicably have borne no fruit rendering the filing of this suit necessary. 3. In support of his case, the Applicant filed the following evidence. * 1. **Supporting affidavit dated 29-10-2025.** 2. **Witness statement dated 29-10-2025.** 3. **Receipt Nos. 697514 and 697515 both dated 31-12-1976 issued to Nduati Gitina by the land adjudication officer.** 4. **Four photographs showing a man with a white turban outside a homestead, in a shamba with Napier grass, in a tea plantation and with a lady outside a homestead.** 5. **Copy of certificate of confirmation of grant in Kigumo Succession Cause No. 20 of 2012.** 6. **A copy of certificate of official search for the suit land dated 22-5-2023.** 4. The summons is opposed by the Respondent who has sworn a replying affidavit dated 11-11-2025 in which he replies as follows. One, the Applicant is her son and she is aged over 90 years and she is sickly and vulnerable. She has other Children and the Applicant has been harassing her by filing a litany of suits over the suit land. The suits include Kigumo Succession Cause No.13 of 2013, Murang’a High Court Appeal Case No. 13 of 2013 which was dismissed by the Court and Murang’a ELC Case No. E002/2023. Two, through fraud and illegibility, the Applicant had obtained title to the suit land without going through a Succession cause yet the suit land was registered in the name Nduati Gitina, the Applicant’s grandfather and the Respondent’s father. When the Applicant’s title was revoked, it was recommended that he be charged with a criminal case related to fraud. Three, the Applicant, after losing in Kigumo Court and an appeal cannot purport to appeal to this Court and the suit as stated in a nusnormer, incompetent, frivolous and an abuse of the Court process. Four, the Applicant has never been in exclusive possession of the suit land. The land is the Respondent's and it was transmitted to her legally and in accordance with the law from the estate of her father. Finally, the Applicant is being selfish and does not want to wait like his siblings for his fair share of the Respondent’s esate. 1. In support of her case, the Respondent filed the following evidence. * 1. **Notice of preliminary objection dated 11-11-2025.** 2. **Replying affidavit dated 11-11-2025.** 3. **Copy of proceedings and judgment in SPMCC Kigumo Succession Cause No. 20 of 2012.** 4. **Copy of memorandum of appeal in Murang’a HCCC P&A Appeal No. 13 of 2013.** 5. **Copy of title deed for the suit land in the name of the Respondent.** 6. **Copy of certificate of official search for the suit land dated 7-1-2025**. 2. At the trial on 2-6-2026 and 9-6-2026 the Applicant and Respondent testified by adopting their affidavits, witness statement and documents after which they were cross-examined. Each party reiterated what they have stated in their pleadings. None of them deviated from their filed evidence. 3. The only submissions that I have seen on record are filed by the Applicant’s counsel. They are dated 3-7-2026. They have not identified any issues. 4. I have carefully considered the evidence adduced in this case by the parties including the witness statement, the supporting and the replying affidavits and the testimony at the trial. I have also considered the written submissions on record. Under **Order 15 of the Civil Procedure Rules 1** identify the following issues. * 1. **Whether Kigumo Succession Cause No. 20 of 2012 determined the rights of the parties.** 2. **Whether fraud was pleaded and proved by the Applicant.** 3. **Whether the Applicant has proved all the essentials of adverse possession.** 4. **Who should pay the costs of the suit.** 5. Regarding the first issue, I find that Kigumo SPMCC Succession Cause No. 20 of 2012 did not determine rights of occupation, use and title to the suit land. The only issue under consideration was who between the Applicant and the Respondent was entitled to inherit the suit land. A person may inherit land which is occupied by a person who has superior rights over the land to those of the inheritor. What is for consideration in this case is whether the Applicant is entitled to the suit land under the doctrine of adverse possession. The Kigumo Court did not have jurisdiction to deal with the question of adverse possession in view of Sections 37 and 38 which give exclusive jurisdiction in adverse possession cases to the High Court. 6. Looking at the second issue, it was incumbent upon the Applicant to plead fraud specifically and then prove it. It is a requirement of Order 2 rule 10(1) (a) of the Civil Procedure Rules that particulars of fraud be pleaded. It provides as follows. 10(1) “ Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing- * + 1. **Particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence or which the party pleading relies…”** The Applicant never pleaded fraud let alone prove it. In addition to the above, a party who pleads fraud must prove that fraud to the standard set in the case of **Ndolo vs. Ndolo Civil Appeal No. 128/1995** at beyond a balance of probabilities and not as high as proof beyond reasonable doubt as in criminal cases. It is quite surprising that the Applicant sought to point his mother as the party guilty of fraud but in the end, it is him who was proved to have fraudulently had the suit land in his name as per the findings of Kigumo Succession Court. Again, if the Applicant really wanted to prove fraud on the part of his mother, he should not have combined fraud with adverse possession in one suit. 1. It is my finding that the Applicant has not proved adverse possession at all. In Kenya, the essential ingredients of adverse possession under Sections 7,13,17 and 38 of the Limitation of Actions Act are actual possession, exclusive possession, open and notorious possession, continuous and uninterrupted possession for at least 12 years, adverse and hostile possession all without the consent of the registered owner. In this case, the Applicant has been in occupation of the suit land with the consent of the Respondent who is his mother. He does not therefore qualify to be declared as the owner of the suit land through prescription. 1. In conclusion and for the reasons given, I find **no merit** in the Applicant’s claim which **I dismiss** with costs to the Respondent. **Dated, Signed and Delivered virtually at Murang’a this 27th day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony** **Applicant’s Counsel – Mr. T.M.Njoroge** **Respondent’s Counsel - Mr Mwangi Ben**