https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3378

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT NAKURU** **ELC (OS) NO 153 OF 2018** **PETER KIMANI CHEGE…………………….………………….PLAINTIFF** **VERSUS** **ROBERT KAMAU GITHIOMI** (personal Representative in the estate of James Njenga Githiomi) ………………………………**1st DEFENDANT** **PETERSON WAIGWA KABINGA……………..……….2ND DEFENDANT** **SALIM GITHIOMI MWARANGU GITHIOMI…………………………………..………. INTERESTED PARTY** **J U D G M E N T** 1. By the originating summons dated 4th October 2018 and amended on the 21st March 2019, and further Amended on the 29th May 2019, and further Amended on the 29th May 2019, the Plaintiff seeks a determination on the following issues:- 2. That the Plaintiff herein is and has been for a period in excess of twelve (12) years in adverse possession of a Land Reference Numbers Ngong/Ngong/27540. 3. That consequently, the Defendant’s right/title thereto in respect of the said portion measuring 2.5 acres of Parcel of Land has been extinguished by virtue of Section 17 of the Limitation of Actions Act. 4. That the Applicant herein is entitled to be registered as bona fide proprietor of the said parcel being the portion measuring 2.5 acres of plot comprised in Land Reference Number Ngong/Ngong/8592 measuring 2.5 acres. 5. That this Honorable Court do order the County Lands Registrar at the Department of Lands Kajiado County to transfer to the Applicant herein. 6. That costs be provided. 7. The same is supported by the Supporting Affidavit sworn on the 15th October 2018 and a further affidavit of the Plaintiff sworn on the 29th May 2019. 8. In response the Robert Kamau Githiomi, the legal Representative of the Estate of James Njenga Githiomi, the 1st Defendant, swore an affidavit dated 18th October 2014. In the said Affidavit he depones that he is a brother to the deceased. 9. He further depones that his other brother, the Interested Party, David Salim Mwarangu, left for the United State of America in the year 2002 and left the suit property in the care of their sister Rachel Mumbi Kigunda The said Rachel Mumbi Kigunda allowed the plaintiff, an evangelist who was homeless and had a young family to reside in the servant’s quarter. 10. It is his case that the Plaintiff never constructed any dwelling house on the suit property. 11. The Interested party filed a Replying Affidavit, sworn on the 29th May 2023. He stated that he is the registered owner of the land known as Ngong/Ngong/8592 where he had constructed a four-bedroom semi-permanent residential house with servant quarters. 12. The said property had water and electricity connected. It is also his case that the suit property was charged to Kenya Commercial Bank as security for a loan and the title deed deposited with the said bank. He later moved to the United States of America in the year 2002. That while in the United State of America and through his sister Rachel Mumbi Kigunda, who was acting as his agent, he leased the suit property to the Plaintiff. 1. It is his case that when he returned in the year 2018 he found the Plaintiff had not paid rent and he instituted **Ngong PMCC Misc. Application No 20 of 2018; David Salim Mwarangu Githiomi Vs Peter Kimani Chege** seeking payment of rent arrears and vacant possession. 2. It is his case that parcel No Ngong/Ngong/8592 remains charged to Kenya Commercial Bank, has never been discharged and or sold to anyone. He also deponed that he never sanctioned any sub division in favour of the Defendants. It is his contention that the said subdivisions are unlawful, illegal, null and void *ab initio* as the same were obtained fraudulently. He prays that the Plaintiff’s suit be dismissed with costs. 1. The Originating Summons proceeded by way of *viva voce* evidence. **THE PLAINTIFF’S CASE** 1. PW1, Peter Kimani Chege, testified on the 28th July 2025. He adopted his Affidavits dated 4th October 2018, 29th May 2019, and 18th January 2025 as his evidence in chief. He also produced the annexures as exhibits in this case. He stated that he entered the suit property in the year 2005 and had been residing thereon todate. He further stated that the suit property is subdivided into six portions measuring approximately 50 by 100 feet. He stated that when he entered there was a timber structure and later developed one which had a foundation. This is where he is residing on. 1. It was his testimony that he is undertaking farming activities on the other four portions. It is his case that no one has asked him to vacate. He prays that he be declared as the owner of the suit property. 2. On cross examination by Mr Kibet for the 1st Defendant, he told the court that the sub-divisions; Ngong/Ngong/27527,275, 28,27529, 27532, 27540, 27542 respectively are in the names of James Njenga but that one portion belongs to James Kabinga. He told the court that this was the reason for the amendment as he had earlier sued the Interested party (David Salim Mwarangu Githiomi) He told the Court that James Njenga is deceased. When shown the Death certificate he confirmed that he passed away on 31st May 2002 and that registration in his favour was effected on 9th December 2002, six months after his death. He told the court that he did not know why the restrictions were registered against the subdivisions. 1. On re-examination, he told the court that he amended the Originating Summons after learning that the parcels where registered in the name of James Njenga and the 2nd Defendant. He also stated that the titles have not been cancelled. He said the chief Ongata Rongai wrote a letter in 2018, confirming that he resides on the suit property. **THE DEFENDANTS’ CASE** 1. DW1, Robert Kamau Githiomi, testified on the 28th July 2025. He adopted his affidavit dated 18th October 2024 as his evidence in chief. He relied on the annexures as exhibits in this case. He stated that he is the Administrator of the estate of James Njenga (the 1st Defendant). 2. On cross examination by Counsel for the Plaintiff, he stated that he could not confirm that the Plaintiff has been residing on the suit property. He stated that he did not know what goes on, on the suit property. 3. On re-examination he confirmed that James Njenga was his younger brother. 4. DW2, David Salim Mwarangu Githiomi, adopted his affidavit sworn on the 29th May 2023 as his evidence in chief. He also produced the annexures as exhibits. 5. On cross examination by Counsel for the Plaintiff, he told the court that he had instructed his Advocate Maina Muchiri to file an objection to the Originating Summons. He stated that the suit property was fraudulently transferred to James Njenga. He stated that he had not moved the court to cancel the titles but there are restrictions registered. 6. He admitted that he does not reside on the suit property. He confirmed that he connected water to the suit property before he left for the United States of America in the year 2002. He said his worker is on the suit property. He told the court that he learnt that the Plaintiff was on the suit property in 2018 when he came back from the United State of America. 7. On re-examination, he stated that he knew the Plaintiff when he came back from the United State of America. 8. DW3, Diana Yagomba, a Land Registrar at Ngong Land Registry testified on the 12th of November 2025. She adopted her witness states as her evidence in chief. She also produced the certified copy of Green card for L.R No. Ngong/Ngong/8592 which shows that David Salim Githiomi,the Interest Party, was registered owner on the 9th September 1987 and a Tittle issued. The copy of the Green Card also shows the suit property was registered in the name of James Njenga (1st Defendant) on the 9th December 2022 and a title issued. 1. She also stated that the title for Ngong/Ngong/8592 was closed on sub division with resultant titles being Ngong/Ngong/27527 to 27541 respectively. She told the court that some of the sub divisions are in the name of James Njenga (1st Defendant). She also stated that by a letter from the Chief Land Registrar, a restriction was placed on all the resultant titles on the 11th of September 2023. 2. On cross examination by counsel for the Plaintiff she stated that from their records Ngong/Ngong/8592 does not exist. She admitted that there are no entries on the encumbrances section though she had copies of Charge and Further Charge. It was her testimony that she could not tell the reason for the restriction and that a court order is required to cancel the resultant sub titles. 3. She further stated that none of the resultant titles is in the name of David Salim, Mwarangu but some are in the name of the 1st defendant . She stated that a restriction does not cancel titles. 4. On re-examination, she admitted that she has copies of the Charge and Further Charge. She also stated that a dispute may have prompted the Chief Land Registrar to write the letter seeking the registration of the restriction on the resultant titles. 5. At the close of the oral testimonies parties tendered final written submissions. **THE PLAINTIFF’S SUBMISSIONS** 1. They are dated 25th February 2026. They raise four issues for determination:- 2. **Who is the registered owner of the suit properties?** 3. **Has the plaintiff proved a case for adverse possession?** 4. **Is the Interested party’s take in the suit merited?** 5. **Who should bear costs of the matter?** 6. Counsel submitted that the Defendants were the registered owners of the suit properties as the copies of official searches from the Ngong Land Registry were attached. Reliance was placed on ***Order 37 Rule 7 of the Civil Procedure Rules*** and ***Section 38 of the Limitation of Actions Act***. He has also put forward the case of ***Sarah Kimani Vs John Wanyoike Gerald ELC 791 of 2023 (OS); Abdukhali Mohamed Abdulkhalik Mazurui & 2 Others Vs Josiah Kafuta J. Mtila & Another (2021) KECA 653 (KLR); Samuel Kihamba Vs Mary Mbaisi ( 2015) eKLR.*** 1. It is submitted that the Plaintiff has demonstrated that he has been in un interrupted possession of the suit properties since 2005, a period of 21 years. Further that the evidence of the adverse actions was not controverted by the Defendants in any way. 2. It is also submitted that the Defendant and the 1st Interested Party have confirmed that they have not benefited from the use of the land as they live somewhere else. Reliance is placed on the case of ***Wilson Njoroge Kamau Vs Nganga Muceru Kamau (2020) eKLR.*** 1. It is submitted that by the time the Interested Party attempted to assert ownership in the year 2018, the title had been extinguished by the Plaintiff by way of adverse possession. Reliance is placed on the case of ***Chevron (k) Ltd Vs Harrison Charo Wa Shutu (2016) eKLR.*** Further that the issue of fraud can only be determined in a fresh suit seeking for cancellation of the title. 2. It is submitted that the Interested Party chose to introduce a rival Claim by way of a replying affidavit. He has put forward the case of Francis ***Kioko Muruatetu & Another Vs Republic & 5 Others (2016) eKLR.*** Further that the issue of fraud can only be determined in a fresh suit seeking for cancellation of the title. 1. Counsel further submitted that fraud must be specifically pleaded and proved. Reliance is placed on the case of ***Morjaria Vs Nansingh Madhusingh Darbar & Another (2000) eKLR; Moses Parantai Vs Peris Wanjiku Mukuru.*** 2. The Plaintiff prays that the court ought to ignore the contentions raised by the Interested Party in so far as the attempt to introduce new issues. He has put forward the case of ***Daniel Otieno Migore Vs South Nyanza sugar Company Ltd (2018) eKLR.*** He prays that the court do find that he has satisfied the ingredients for a claim of adverse possession as against the Defendants and his case be allowed with costs. **THE 1ST DEFENDANT’S AND THE INTERESTED PARTY’S SUBMISSIONS.** 1. They are dated 15th December 2025. They raise one issue for determination; whether the Plaintiff has proved his claim of adverse possession on the suit property. Reliance placed on the ***Section 7, 13 and 38 of the Limitation of Actions*** and the case of***Mtana Lewa Vs Kahindi Ngala Mwangadi (2015) eKLR; Mburu Vs Musembi (2023) KEELC 22145 (KLR). Omollo Vs Nyamunga (2025) KEELC 120 (KLR) Mutahi & Another Vs Mbatia (2023) KEELC 16246 (KLR)*** 1. It is submitted that the plaintiff failed to prove that his entry into and presence on the said land was with the knowledge but without the permission of the deceased, who he alleges to be the owner of the suit property. 2. It is submitted that the plaintiff took possession of the suit property by stealth hence defeating his claim for adverse possession. He stated that he found an abandoned house and started living in it. 3. It is submitted that the 1st Defendant’s testimony was that plaintiff was accommodated purely as an act of humanitarian assistance by the family of the true owner through his sister Rachel Mumbi Kigunda who allowed him to live on the servant quarters while in a state of destitution. 4. It is also submitted that the suit property was transferred to James Njenga (Deceased) on the 9th December 2002 and the subdivisions done on 4th August 2003 while the death certificate shows that he died on 31st May 2002 hence the plaintiff cannot rely on the illegality as the basis of adverse possession. Reliance is placed on the case of ***Patrick Kiseki Mutisya (suing as the personal representative of the estate of*** ***Nzomo Mutisya (Deceased) Vs K. B Shanghani & Sons Limited & Another (2012) KEHC 5730 (KLR).*** 5. It is submitted that the Plaintiff must show that his acts are inconsistent with the owner’s enjoyment of the soil for purposes for which he intended to use it. It is the submitted that the Plaintiff failed to prove this. Reliance is placed on the case of ***Namadoa Vs Gina ( suing on his Behalf of his father (DCD) Godfrey Adam Ogwa (2025) KECA 470 (KLR).*** 6. It is submitted that the photographs presented by the Plaintiff are of same house constructed by the Interested Party together with developments thereon. 7. It is also submitted that the Plaintiff has failed to establish the essential elements of adverse possession. They pray that the Plaintiff’s suit be dismissed with costs. **ANALYSIS AND DETERMINATION** 1. I have considered the pleadings the evidence on record, the written submissions and the authorities cited. The issues for determination are: 2. **Whether the Plaintiff has proved his claim of adverse possession on the suit property.** 3. **Who should bear the costs of this suit.** 4. Section 7, 13 of the Limitation of Actions Act provided as follows: - **Section 7:-** **“ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”** **Section 13:** **"(1)A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.** **(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action js no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.** **(3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3) of this Act, the land in reversion is taken to be adverse possession of the land."** 1. Section 38 of the Limitation of Action Act, 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.** **(2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act."** 1. The doctrine of adverse possession has been articulated in multiple cases in Kenya. The court of Appeal in ***Mtana Lewa Vs Kahindi Ngala Mwangadi (2015) eKLR;*** gave a definition of what the doctrine of adverse possession entailed and the circumstances that gave rise to it. The Court states thus:- ***“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”*** 1. In the case of Samuel ***Kihamba Vs Mary Mbaisi (2015) eKLR*** the court states thus; ***“Strictly, for one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is, without force, without secrecy, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin Phraseology, nec vi. nec clam,nec precario. The additional requirement is that of animus possidendi, or intention to have the land. See Eliva Nyongesa Lusenaka & Another Vs Nathan Wekesa Omacha Kisumu Civil Appeal No. 134 of 1993 (ur). These prerequisites are required of any claimant….”*** 1. It is the plaintiff’s case that he has been in uninterrupted possession of the suit properties since 2005. Further that he has built a permanent house where he resides with his family, fenced the property and carries out subsistence farming on the property. 2. The Defendant and the Interested party on the other hand, maintained that the Plaintiff has failed to prove that his entry and presence on the land was with the knowledge and without permission of the registered owner of the suit property. 3. In his Replying Affidavit, sworn and filed on the 12th November 2018 the Interested Party states that he is the registered proprietor of LR No. Ngong/Ngong/8592 since 9th July 1987. That he put a residential house. connected water and electricity. It is his averment that he and his family relocated to the United State of America in the year 2002. He left his sister Rachel Mumbi Kigunda on the land. She was the one taking charge. 4. Rachel Mumbi Kigunda in her Replying affidavit avers that the Plaintiff was homeless. She then gave him permission to reside on the servant quarters. It was her averment that the plaintiff never put up any structure on the suit property. It is also her averment that in 2014, the Interested Party was planning to relocate back to Kenya, and the Plaintiff sought for thirty (30) days to move out but later turned hostile. 5. It should be noted that the Plaintiff never filed a further affidavit to challenge these averments. I agree with the 1st Defendant and Interested Party’s submissions that the Plaintiff was accommodated purely as an act of humanitarian by Rachael Mumbi Kigunda who allowed him to occupy the servant quarters. 6. From the foregoing, it is clear that the Plaintiff entered the land with the permission from an agent of the Interested Party who was the registered owner. Permission is fatal to any claim of adverse possession. 7. I also agree with the Defendant and Interest Party’s submissions that the Plaintiff’s testimony that he was walking and found an abandoned house and started living in it portrays someone who secretly entered the land. The court have held time and again that adverse possession must *be nec vi nec clam* and *nec precario.* (no force, no secrecy and not by stealth) 8. I have considered the facts presented by the Plaintiff and find that they do not satisfy the conditions set out above. His claims that the Interested Party’s rights had been extinguished by 2018, cannot stand. The same can be said about him. That he had not taken any steps to assert his claim of adverse possession by the time the Interested Party sought to have him deliver vacant possession vide Ngong PMCC Misc Application No 20 of 2018. 1. I have gone through the evidence presented by the Plaintiff. I find that he was not able to demonstrate that he put up any structures on the suit property. 2. It should also be noted that the suit property LR No.Ngong/Ngong/8592 was transferred and subdivided allegedly by James Njenga, the 1st Defendant, on the 9th December 2002 and 4th August 2003 respectively long after he had passed on the 31st May 2002. This amounts to fraud. The Interested party may have to file a fresh suit to deal with the issue of fraud within a view to of having the titles cancelled. 3. It is therefore clear that a claim for adverse possession cannot lie against a party who has no legal capacity to assert title at the time material to the claim. 4. In conclusion I find that the Plaintiff has failed to prove his case as against the Defendants on a balance of probabilities. The claim for adverse possession is unmerited since the Plaintiff entered the suit properties with permission and/or as a licensee and the Interested Party has made efforts to have him vacate the same. 5. It is my view that permission negates the claim of adverse possession. The averments of Rachel Mumbi Kigunda, that he asked the Plaintiff to leave in 2014 as the Interested party was planning to relocate to Kenya were not rebutted. It can be said that time started running in 2014 when he was asked to leave. The filing of a suit against him in 2018 to vacate the suit property can be said to be an interruption. The stay on the land has not been peaceful. 1. The upshot of the matter is that I find that the Plaintiff has failed to prove his claim of adverse possession and the suit is dismissed with costs to the 1st Defendant and the Interested Party. **Judgment dated, signed and delivered virtually at Nakuru this 28th day of May 2026.** **L KOMINGOI** **JUDGE** **In presence of :-** Mr Ongeri for the Plaintiff No appearance for the 2nd Defendant Mr. Kibet Korir for the 1st Defendant and the Interested Party Court Assistant: Derrick/ Irene