https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4131

Ngungi v Kiriungi (Environment and Land Case 13B of 2021) [2026] KEELC 4131 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 4131 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Case 13B of 2021 A Kaniaru, J June 30, 2026 Between Sammy Jumanne Ngungi Plaintiff and Kithaka Kiriungi Defendant Judgment 1.The Plaintiff herein- Sammy Jumanne Ngungi - Impleaded The Defendant – Kithaka Kiriungi – before this court vide a Plaint dated 15.01.2015, seeking his eviction from land parcel No. Embu/Karamandi/455. He also sought general damages for unlawful occupation of the said land. It is pleaded that the Plaintiff is the registered proprietor of the suit land and that the Defendant is in unlawful occupation of it. 2.The Plaintiff averred that the suit land was the subject of proceedings before the Tribunal in the District Land Disputes Tribunal Case No. 475 of 2011 between the Plaintiff and the Defendant. The Defendant was awarded the suit land. That the award of the Tribunal was adopted as an order of the Court in the Principal Magistrates Court in Siakago LDT case No. 23 of 2011 but the award was later quashed in Embu High Court Misc Application No. 5 of 2012 (JR). 3.The Defendant initially filed a defence and counterclaim dated 25.2.2019 which was amended later and dated 13/11/2019. He denied the Plaintiff’s claims but admitted that the Plaintiff was the registered owner of the suit land. He stated that the Plaintiff was registered as the owner on 29.06.2009 after buying the land from one James Njeru Muchiri who was registered as the proprietor on 08.11.1982. He stated that together with James Njeru, they belong to the Gekara clan but the Plaintiff is not a member of the said clan. He averred that he was allotted and shown the suit land by the elders of his clan in 1974 and started living thereon in the year 1977. He averred that he later learnt that the suit land had been registered in the name of James Njeru Muchiri under mysterious circumstances. 4.Further that, since the year 1977, the original owner and the Plaintiff have never evicted him or initiated any court proceedings to evict him from the suit land. He further stated that neither the Plaintiff nor his predecessor in title has ever been in possession or utilized the suit land since the year 1977 and that his occupation, use and possession of the land has been open, continuous, unauthorized, peaceful and uninterrupted. He averred that at the time the Plaintiff was purchasing the suit land, he was in occupation, a fact that was within the Plaintiff’s knowledge. He contended that since 1977, he has extensively developed the land by building his residential houses, cultivating, putting up a live fence around the land, keeping livestock and has used the land for grazing and to sustain his livelihood. 5.He averred that he had married and sired all his eight children while living on the suit land and they know no other home beside the suit land. That, two of his children have built their homesteads on the land and that in the year 1987, he buried one of his children on the land without objection from the original owner. He contended that the Plaintiffs title to the land was extinguished by his adverse possession and therefore he ought to be registered as the proprietor of the land. 6.He sought a declaration that the Plaintiff’s proprietary rights over the whole of land parcel No. 455 had been extinguished. He also sought to be registered as the absolute proprietor of the whole of the suit land in place of the Plaintiff and also to be issued with a title deed. He asked that the production of the original title deed to the suit land and all accompanying documents be dispensed with at the time of his registration and/or that in the alternative, and without prejudice, a declaration be made that the Plaintiff is registered as the proprietor of the suit land in trust for him and that the trust be terminated by registering him as proprietor. He further sought that the Plaintiff’s suit be dismissed and the costs of the suit and counterclaim be awarded to him. 7.The Plaintiff filed a reply to the defence and counterclaim and denied all allegations set out in the counterclaim. 8.The suit proceeded for hearing on 23.02.2023 and the Plaintiff testified as PW1. He adopted his witness statement dated 15.01.2014 as his evidence in chief. He produced in evidence: an application for the Land Control Board Consent, a letter of consent from the Land Control Board, the green card for land parcel 455, a transfer of land form for land parcel 455, Proceedings from the Land Disputes Tribunal case No. 275 of 2011, a copy of an order dated 15.07.2013, a decree issued by the Principal Magistrates Court adopting the Land Disputes Tribunal decision; and a copy of the title deed for land parcel 455 all as Plaintiff’s Exhibits 1 to 8 respectively. 9.He testified that he had sued the Defendant because he was on his land and he wanted him to vacate the land. He stated that the Tribunal ruled against him but the decision was reviewed and reversed by the High Court when it granted an order of certiorari. He stated that he did not know when the Defendant entered the land. He further stated that the Defendant has semi-permanent houses on the land which have been there since 2009. He stated that he tried to involve local administration to get the Defendant out of the land but he has refused to do so. 10.On cross examination, he stated that he was born in the year 1978 and that he got to know the Defendant when he bought the suit land from one James Njeru Muchiri, who is now deceased, in the year 2009. He stated that he had never lived on the suit land and that it is the Defendant who uses it. He stated that the Defendant lives on the land illegally and that he has houses there, a fence and mature trees. He stated that he was not aware that the Defendant has buried his son on the land. 11.The Defendant testified as DW1 and adopted his written statement as his evidence in chief. He produced a copy of his ID card and a bundle of photographs showing the developments he had made on the land as Defendant’s Exhibits 1 and 2. He testified that he knew the Plaintiff since he was a child. That the suit land was registered in the name of the Plaintiff but before then, it was registered in the name of James Njeru Muchiri. He stated that he had lived on the suit land for a very long time as he was shown the land in 1974. He stated that he constructed on the land in 1977 and has never left since then. That the previous owner never chased him away neither did the Plaintiff remove him from the land. He denied that the Plaintiff gave him notice to vacate the land. 12.On cross examination, he stated that he has buried one of his children on the suit land and that his other children live on the land. He further stated that he has lived on the land peacefully and not by force. 13.Ezekiel Njue Kathiga testified as DW2. He produced his written statement as his evidence in chief. He testified that he knew both the Plaintiff and the Defendant as he was their neighbor. He stated that the Defendant lives on the suit land and that he had never seen the Plaintiff living on the land nor did the first registered owner, the late James Njeru Muchiri. On cross examination, he stated that the Defendant is his uncle and that he comes from the Gekara Clan which gave him the land in 1974. 14.The parties agreed to file written submissions. The Plaintiff filed submissions dated 16.05.2024. He submitted that it is a cardinal principle of adverse possession that a party be and remain in uninterrupted occupation of the suit land for a period of not less than 12 years. He set various elements that must be proved in a case of adverse possession and stated that from the evidence produced by the Defendant and in particular the photographs depicting his stay on the suit land, the Defendant had not met the threshold for grant of orders of adverse possession. 15.He averred that during the hearing, he testified that by the time he visited the suit land before purchasing it, the Defendant had not settled on the land. That the land measures approximately 4.6 Ha and most of the photographs made available by the Defendant showed trees and plants that naturally grow in semi-arid areas and temporary incomplete structures that can barely cover the whole of the suit land. He contended that the Defendant’s claim of adverse possession was unsubstantiated. 16.He further submitted that in the case of Wambugu -vs- Njuguna (1983) eKLR, the Court held that adverse possession contemplates two concepts: that is, possession and discontinuation of possession. That the Court further held that the proper way of assessing proof of adverse possession would be whether or not the title holder’s possession has been discontinued for the period of 12 years and not whether the claimant has proved that they have been in possession for the requisite number of years. 17.He submitted that the filing of the Embu High Court Miscellaneous Application No. 5 of 2011 (JR) where an order of certiorari was granted which order quashed the proceedings, findings, and award of the Chairman of the Evurore Land Dispute Tribunal No. 475/2011 interrupted the Defendants possession. He urged for a finding that the Defendant had not proved his case for adverse possession and therefore his counterclaim should be dismissed and the main suit allowed. 18.The Defendant filed submissions dated 26.11.2024 and gave a brief analysis of the case before the Court. He submitted that the doctrine of adverse possession in Kenya is embodied in Section 7 of the Limitation of Actions Act. He further submitted that for a claim of adverse possession to succeed, possession must be continuous, open and uninterrupted for a period of not less than twelve (12) years and the adverse possessor must over the period engage in acts in regard to the property which are inconsistent with the rights of the true owner. That the rights have to be hostile to the rights and interests of the real owner. 19.He further submitted that he had sufficiently proved that his possession of the suit land has been adverse and hostile to that of the true proprietor and that his occupation and use was confirmed by the Defendant’s witness and the Plaintiff. He submitted further, that a claim for adverse possession is attached to land and not to title as was held in the case of Maweu -vs- Liu Ranching & Farming Cooperative Society (1985) eKLR as quoted in Civil Appeal No. 164 of 2011 Gachuma Gacheru –vs- Maina Kabuchwa (2016) eKLR. 20.He also further submitted that he had been able to prove on a balance of probabilities that he had acquired the suit land by way of adverse possession. That his possession was as of right and in a manner inconsistent with the rights of the registered owner, that is, the occupation has been open, actual, continuous, uninterrupted, peaceful, exclusive and with the knowledge but without the consent or permission of the registered owner for the prescribed period of 12 years. Among the cases proffered to support his submissions was the case of Mtana Lewa –vs- Kahindi Ngala Mwagandi (2015) eKLR, Ruth Wangari Kanyagia –vs- Jospehine Muthoni Kinyanjui (2017) eKLR Wambugu –vs- Njuguna (1983) KLR 172 among others. 21.I have considered the pleadings as filed, the evidence tendered during hearing, and the written rival submissions. I find that the issues for determination are:i.Whether the Defendant has become entitled to land parcel Embu/Kamarandi/455 by way of adverse possession and,ii.Whether the Defendant should be evicted from land parcel Embu/Kamarandi/455 and,iii.Whether the Plaintiff is entitled to general damages for unlawful occupation. 22.The law under Section 13 (1&2) of the Limitation of Actions Act provides:1.A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of Limitation can run (which possession is 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 cease to be in adverse possession, the right of action is 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. 23.In the case of Mtana Lewa –vs- Kahindi Ngala Mwagandi [2015] eKLR as cited in Otwoma -vs- Ombele (Environment & Land Case 13 of 2021) [2022] KEELC 2522 (KLR) (10 May 2022) (Judgment) the court of Appeal defined adverse possession as:“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title 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 in action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 24.In the case of Richard Wefwafwa Songoi Vs Ben Munyifwa Songoi [2020] eKLR, the court pointed out, inter alia, that an adverse possessor needed to demonstrate the following:a.On what date he went into possession.b.What was the nature of his possession.c.Whether the fact of his possession was known to the other party and;d.For how long the possession had continued. 25.It follows that in order for a person to succeed in a claim for adverse possession, they must prove use and occupation or in other words possession of the land, with the knowledge of the owner and such use and occupation must not be broken or interrupted for a period of twelve years. The possession must also be open and notorious with the intention to defeat the registered owner’s title. 26.The Defendant herein claims to have taken possession of the suit land in 1977 when it was allotted to him by the clan. He says that he has lived on the suit land since without interruption and that he has developed the land. From the evidence produced, it appears that the land was initially registered in the name of Njeru Muchiri in the year 1982 and was later transferred to James Njeru Muchiri on 16.06.2009 who later sold it to the Plaintiff on 29.06.2009. The Defendant claims to have developed the land by building his residential houses, cultivating, putting up a live fence around the land, kept livestock and used the land for grazing and to sustain his livelihood. 27.He also claims that two of his children have built their homesteads on the land and that he also buried his son on the land in 1987, facts that were corroborated by DW2. He produced photographs which show several structures on the suit land. The photographs were not contested by the Plaintiff. The Plaintiff does not deny that the Defendant is in occupation of the land and that when he purchased it from the late James Muchiri, the Defendant was still in occupation. The Plaintiff also admitted that he has never utilized the land since he purchased it. The court is therefore persuaded that the Defendant has been in actual use and occupation of the suit land and therefore the issue of possession has been proven. 28.Apart from possession, the Court must determine whether such possession was with the knowledge of the registered owner and whether it was open and notorious. In the present case, the Plaintiff expressly admitted that at the time he purchased the suit land in 2009, the Defendant was already in occupation. He further conceded that the Defendant has put up semi-permanent structures, planted trees, fenced the land and has been utilizing it. Additionally, the Defendant’s occupation was corroborated by DW2. These are acts of possession that are inconsistent with the rights of the registered owner and are sufficient to put any reasonable proprietor on notice. The Court is therefore satisfied that the Defendant’s occupation was open, notorious and within the knowledge of both the Plaintiff and his predecessor in title. 29.The next issue is whether such possession was continuous and uninterrupted for the statutory period of twelve (12) years. The Defendant’s evidence is that he entered the suit land in 1977 and has remained in occupation ever since. This evidence was not controverted. There is no material placed before this Court to demonstrate that either the Plaintiff or his predecessor in title ever took any steps to assert their rights or to eject the Defendant from the suit land. 30.It is now settled law that time for purposes of adverse possession only stops running when the registered owner takes effective steps to assert his rights, such as by filing suit for recovery of land or by effecting an eviction. In this case, the proceedings before the Land Disputes Tribunal, being Claim No. 475 of 2011, were instituted by the Defendant himself and therefore cannot amount to an assertion of title by the Plaintiff so as to interrupt the running of time. Similarly, the Judicial Review proceedings which culminated in the quashing of the Tribunal’s award did not amount to a suit by the Plaintiff to recover the suit land and therefore they did not interrupt time. 31.On the computation of time, even if this Court were to take the year 1982, when the land was first registered, as the starting point, time would begin to run from that date against the registered proprietor. By the time this suit was filed on 15.01.2015, a period exceeding thirty (30) years had elapsed. Further, the change of ownership in 2009 from the previous proprietor to the Plaintiff did not interrupt the Defendant’s possession, as a claim for adverse possession attaches to the land and not to the paper title. The Defendant’s occupation therefore crystallized into ownership long before the Plaintiff acquired title to the suit land. 32.In view of the foregoing, this Court finds that the Defendant’s possession has been actual, open, continuous, exclusive and uninterrupted for a period well in excess of the statutory twelve (12) years. The Defendant has therefore satisfied all the legal requirements for a claim of adverse possession. 33.Consequently, the Plaintiff’s title to land parcel No. Embu/Karamandi/455 has been extinguished by operation of the law. 34.The upshot is that the Defendant has proved his counterclaim on a balance of probabilities. The Plaintiff’s suit for eviction is therefore untenable and is hereby dismissed. Judgment is entered in favour of the Defendant as prayed in the counterclaim. 35.Costs of the suit and the counterclaim are awarded to the Defendant. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KITUI THIS 30TH DAY OF JUNE, 2026 PURSUANT TO NOTICE DATED 17/6/2026.A. KANIARUJUDGE- ENVIRONMENT & LAND COURT, KITUIIn the presence of,Court Assistant – MusyokiPlaintiff – AbsentDefendant - AbsentKalamu Ndolo for the Defendant in the main suit and Plaintiff in the counter-claimEddie Njiru (Absent) for the Plaintiff in the counter-claim