https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5070

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLC E043 OF 2025** **SAMSON NJUGUNA MUROKI** **KEZIAH MUTHONI MUCHERU** **GEOFREY NGANGA GITAU** **(**Suing in their capacities as the officials of the **MARIAINI GREAT COMMISSION CHURCH ………………….……………..PLAINTIFFS** **VERSUS** **JIDLAPH NGUGI NJOGU……………………………….……………….…..………1ST DEFENDANT** **DAVID GATUNGO NGUGI……………………………….……………….…..……2ND DEFENDANT** **JAMES NJUGUNA NGUGI……………………………….……………….…...……3RD DEFENDANT** **LAND REGISTRAR MURANG’A ……………………………….………….…..…4TH DEFENDANT** **THE HONOURABLE ATTORNEY GENERAL …………………………….……5TH DEFENDANT** **JUDGMENT** 1. The Plaintiffs seek the following reliefs against the Defendants both jointly and severally. * 1. **That the 1st, 2nd and 3rd Defendants’ title deeds in respect of the land parcels title numbers; Loc. 5/Mariaini/2060; 2061 and 2062 and the entries made in the register be and are hereby revoked and cancelled.** 2. **That the title deed for the mother head number Loc. 5/Mariaini/694 be revived and reinstated and a fresh subdivision exercise be undertaken hiving out the suit plot measuring approximately 0.2 acres where the Plaintiffs’ church premises is erected.** 3. **A declaration be and is hereby issued that the suit plot measuring approximately 0.2 acres to be curved out of the mother head title number Loc. 5/Mariaini/694 is legally owned by the Plaintiffs.** 4. **In the alternative to prayer (c) above, a declaration be and is hereby issued that the Plaintiffs are entitled to ownership over the suit plot measuring approximately 0.2 acres to be curved out of the mother head title number Loc. 5/Mariaini/694 by adverse possession.** 5. **An order be and is hereby issued directing the 4th Defendant to register and issue a title deed in respect of the suit plot measuring approximately 0.2 acres to be curved out of the mother head title number Loc. 5/Mariaini/694 in the name of the Plaintiffs.** 6. **A permanent injunction restraining the Defendants, their servants and/or agents or any other persons whether acting on their own or on the Defendants’ behalf from selling, alienating, transferring, charging or howsoever dealing with the suit plot measuring approximately 0.2 acres.** 7. **Costs of this suit.** 2. The Plaintiffs’ case is as follows. Firstly, the Plaintiffs are the legal *bonafide* owners of a plot measuring 0.2 acres vide a certificate of confirmation of grant issued on 6-11-2019 in the Chief Magistrates’ Court at Thika in Succession Cause No. 280 of 2011. Secondly, the Plaintiffs have enjoyed quiet possession and use of the suit plot for a period of about 15 years having taken vacant possession over the same in November 2009 and have substantially developed the suit plot by erecting a permanent church thereon. Thirdly, around 1-7-2025, the 1st , 2nd and 3rd Defendants illegally deposited building materials at the main entrance of the suit plot thereby blocking the Plaintiffs and the congregation from accessing the church premises. Fourthly, the said illegal action of the three Defendants is premised upon the illegally, unprocedurally and fraudulently acquired title deeds in respect of land parcels numbers Loc. 5/Mariaini/2060; 2061 and 2062 respectively being the resultant subdivisions of the mother head title Number Loc. 5/Mariaini/694 against the certificate of confirmation of Grant made on 6-11-2019 which had distributed the suit plot measuring 0.2 acres to the Plaintiffs. Fifthly, the new title deeds in respect of the three suit parcels have been acquired illegally, unprocedurally, fraudulently and through a corrupt scheme vide a grant issued in CMS’s Court Murang’a Succession Cause No. E592 of 2022 which proceedings were fraudulently filed by the 1st to 3rd Defendants with the sole aim of dispossessing the Plaintiffs their proprietary interest over the suit plot. 3. In support of their case, the Plaintiffs filed the following evidence. * 1. **Copy of certificate of Confirmation of Grant in Thika CM’s Case No. 280 of 2011 dated 6-11-2019.** 2. **Three photographs showing the Church building on the suit plot and building stones.** 3. **Copies of certificates of official search for the suit plots.** 4. **Copies of green cards for the suit plots.** 5. **Copy of gazette notice No. 7167 in relation to CM’s Thika P&A 280 of 2011 dated 20-6-2011.** 6. **Copy of print out of the CTs for Murang’a CM’s Succession Cause No. E592 of 2022.** 4. In their written statement of defence dated 31-10-2025 the 1st , 2nd and 3rd Defendants respond as follows. One, the plaint is incompetent and defective and does not disclose any cause of action against the first Defendant because the Mariaini Great Commission Church is built on L.R. No. Loc.5/Mariaini/1509 which belongs to Teresiah Waturi Kamau and not on any of the suit parcels as alleged by the Plaintiffs. Two, there are no building materials deposited on Loc.5/Mariaini/2060 where church stands. Instead, it is the Plaintiffs who have invaded and encroached on one of the parcels neighbouring L.R. No. 1509 and began erecting a classroom facing the church. This has resulted in numerous reports to the local administration aimed at curtailing further encroachment and evicting the Plaintiffs from L.R.No.2060 but the efforts have been futile. Three, the Plaintiffs are strangers to the estate of the late Ngugi Mahuti and they have never entered into any transaction with them and therefore they have no stake in the estate. Four, a claim of adverse possession must be commenced by way of originating summons and not by way of plaint like it is in this case. Finally, the proceedings in Murang’a CMCC Succession Cause No. E592 of 2022 has never been challenged or appealed against. For the above and other reasons, the Defendants pray for the dismissal of the Plaintiffs’ suit with costs. 5. In support of their case, the 1st, 2nd and 3rd Defendants filed the following evidence. 6. **Witness statements by the 2nd and 3rd Defendants.** 7. **A Map showing the suit plots and the neighbouring ones.** 8. **3 photographs showing two buildings, a heap of stone blocks, a hedge, a gate and trees.** 9. At the trial on 20-4-2026 the 1st Plaintiff and 2nd Defendant gave evidence. They generally reiterated what is in their pleadings. None of them deviated from the positions taken in the pleadings. 10. Counsel for the parties filed written submissions dated 2-6-2026 for the Plaintiffs and 14-5-2026 for the Defendants. The issues framed by the Plaintiffs’ counsel included the following. 1. **Impeachment of title deeds for L.R. Nos. 2060, 2061 and 2062 on grounds of fraud.** 2. **The doctrines of adverse possession and constructive trust.** On the other hand, the Defendants’ counsel identified the following issues. * + 1. **Whether the value of the suit property is within the jurisdiction of this court.** 2. **Whether a claim of adverse possession can be commenced through a plaint.** 3. **Whether the Plaintiff can institute competing claims of adverse possession and fraud through a plaint.** 4. **Whether this suit should be in this court or the family court.** 5. **Whether the Plaintiffs have met the requirements and/or threshold for adverse possession.** 6. **Who should bear the costs**. 1. I have carefully considered all the evidence adduced by both sides including the witness statements, documents and testimony at the trial . I have also considered the written submissions by learned counsel for the parties, the issues raised therein and law cited. I make the following findings on the issues raised. 2. As regard the first issue of fraud in obtaining the title deeds for L.R. Nos. Loc. 5/Mariaini/2060, 2061 and 2062 though there is prima facie evidence of fraud because of the two succession causes at Thika and Murang’a in respect to the estate of one person namely, Ngugi Mahuti, the Plaintiffs have not brought out the issue of fraud sufficiently and clearly. Where fraud is alleged, it must be proved to a standard higher than the ordinary one in civil cases of a balance of probabilities but lower than beyond reasonable doubt like in crime cases. See the case of **Ndolo vs. Ndolo Civil Appeal No. 128 of 1995.** The evidence by the Plaintiffs lacks in detail of exactly which property was involved in the two cases. Without such details, fraud to the standard set in Ndolo’s case cannot be said to have been proved. 3. On the Plaintiffs’ second issue of the doctrines of adverse possession and constructive trust, I find that adverse possession would only be proved if the Plaintiffs’ occupation of the suit land is without the Defendants permission, inter alia. In the case of **Wambugu vs. Njuguna [1983]KLR**, it was held as follows. **“…Possession cannot be adverse if it is by permission, consent, or licence of the registered owner.”** In this case occupation by the Plaintiffs is with the consent of the Defendants. The principle of constructive trust does not apply in this case because the Plaintiffs have admitted that they have not paid the full purchase price unlike the facts in the case of **Willy Kimutai Kitilit vs. Michael Kibet [2018] eKLR** where the party in whose favour the doctrine was invoked had paid the full purchase price**.** 1. Coming to the Defendants’ issues, the pecuniary value of the suit property has suddenly cropped up in the written submissions. It was not raised in the pleadings. It is not fair to raise it now when it cannot be adequately addressed by way of evidence. In any case, the Defendants have no valuation report themselves or other evidence to prove the value of the suit parcels. 1. It has been held in the case of **Gulam Mariam Noordin vs. Julius Charo Karisa Civil Appeal No. 26 of 2015 Malindi** that a claim for adverse possession can be commenced by way of a plaint, though historically it has been commenced by originating summons as per Order 37 of the Civil Procedure Rules. It is my finding too that a claim for adverse possession can be filed in the same suit as a claim based on fraud so long as the pleadings clearly state that one of the claims is alternative to the other. See **Stephen Onyango Achola vs. Edward Sule Hongo and 2 Others Civil Appeal No. 30 of 2014 Kisumu**. 2. As to whether this suit should be in this Court or the family Court, it is my finding that this court has jurisdiction because the Plaintiffs are seeking title to the three suit parcels and also to occupy 0.2 acres of the said parcels. This is within the jurisdiction of this Court in Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court Act. 3. For the reasons already given in paragraph [10] of this judgment, I find that the Plaintiffs have not met the threshold for adverse possession primarily because they occupy the suit land with the permission of the Defendants. 4. The way forward in this suit is my considered view for the parties to go back to the drawing board and do as follows. * 1. **Let the 2nd and 3rd Defendants transfer to the Plaintiffs a parcel of land commensurate in size to the value of the partly paid purchase price.** 2. **In the alternative, let the Plaintiffs pay to the 2nd and 3rd Defendants, the current market value of the land that they occupy and they did not pay for when they paid the purchase price partly.** What has made it difficult for the court to make a firm finding on the commensurate size to award is the absence of a sale agreement and lack of certainty on the amounts paid by the Plaintiffs and received by the 2nd and 3rd Defendants because there are no bank statements or acknowledgement of receipt of any money by the Plaintiffs. 1. In conclusion and for the reasons given, I **dismiss** the Plaintiffs suit with costs to the Defendants. The way forward in paragraph [15] above is subject to the willingness of the parties. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 29th day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony** **Plaintiffs’ Counsel – Mr Maina** **1st and 3rd Defendants’ Counsel – Mr. Kimani**