https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3547

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCL APPEAL NO. E026 OF 2024** **SIMON MBUNGU MUCHEE...............................................APPELLANT** **VERSUS** **JOSEPH MUTURI NJIRU.........................………….…......RESPONDENT** ***(Being an appeal from the Judgement of Hon. W. Ngumi (PM) delivered on 17/08/2022 in Siakago MELC Case No. 43 of 2019)*** **JUDGMENT** 1. The Respondent herein was the Plaintiff before the trial court wherein he had sued the Appellant vide a Plaint dated 17/06/2019 seeking interalia, an eviction order against the Appellant, his family members, agents, servants, employees and or any other person claiming through him from land parcel No. Evurore/Kamarandi/742. 2. The Respondents case was that he is the registered owner of land parcel No. Evurore/Kamarandi/742. He averred that the Appellant on or about the year 2016 trespassed and illegally entered the land without any color of right and has tilled it since then and continues to be in illegal occupation of the land with his family members and dependants. He averred that the Appellant has denied him access to the land. 3. The Appellant filed a defence and counterclaim dated 20/01/2020. He averred that the suit land had been occupied by Tharaka nine clans since 1972 and the Respondent illegally acquired it without the knowledge of the said clan members. The Appellant sought a declaration that together with the Tharaka nine clans be declared to have acquired the suit land by way of adverse possession. 4. The Respondent filed a reply to the statement of Defence and Counterclaim and averred that the suit land was recently gazetted as falling in an adjudication section and that anybody who settled on it before that time had done so illegally. He denied that the Appellant settled on the land in 1972 and averred that the seven clans the Appellant mentioned were from Tharaka Nithi whereas the suit land is situate in Embu County. He averred that the Appellants claim of adverse possession could not issue in the case. 5. When the former suit came up for directions, the parties agreed to proceed with the hearing by way of viva voce evidence. 6. PW1, Joseph Muturi Njiru adopted his written statement dated 17/06/2019 as his evidence in chief. In his statement, he stated that he was the registered proprietor of the suit land and that the Appellant had illegally trespassed and settled on the land. He averred that his attempts to have the Appellant vacate the land have been futile necessitating the filing of this suit. He filed a further statement dated 13/11/2019 where he stated that the land had been allocated to him by the Nyonga Clan by one Njeru Mukandi during adjudication of land in Kamarandi Adjudication Section. 7. On cross examination, he stated that his father lives on the land but he lives elsewhere and that he was not born on the land. He stated that the Appellant settled on the land in 1984 after the draught. he produced in evidence a copy of the title deed to the suit land, an official search dated 13/06/2019, a copy of the list of members of the Nyonga clan who owned land at Kamarandi Adjudication Section and a sketch map showing his parcel of land. 8. PW2, Peter Gitonga Njue adopted his written statement dated 25/04/2021 as his evidence in chief. He stated that he was the Respondents cousin. He stated that the Appellants father, Mzee Mbungu was the one living on the suit land but he did not know when he entered the land. He stated that the land belongs to the Respondent and that the Appellant had denied him access to the land. He stated that the Respondent had on April or May 2020 built a small shelter on the land for use where he cultivated and planted cow peas, beans and sorghum on the land which was demolished by the Appellant and that he also strayed his goats which destroyed the Respondents crop. 9. PW3, Tabitha Mbuva Karera adopted her written statement dated 20/04/2021 as her evidence in chief. She stated that she was the Respondents mother and that the suit land was allocated to her husband by the clan chairman Njeru Mukundi. She averred that the Appelant was not a member of the clan and could hence not own land at the place. That the Appellants father Mzee Mbungu was of Tharaka origin and went and settled on the land without permission. She denied that the Appellant was on the land when land adjudication was being done. She stated the Appellants father had never lived on the land but on a different parcel of land. 10. PW4, Tharaka Nyaga Ndambuki adopted his written statement dated 20/04/2021 as his evidence in chief. She stated that land parcel 740 was allocated to her late husband by the clan chairman Njeru Mukundie. That her late husband belonged to the same clan as the Respondent and that the Appellant was a stranger on the suit land. She stated that she knew Mzee Mbungu and that he got on the suit land during the adjudication process. She stated that she did not live on her parcel of land as she left a long time ago when Kenyatta was the president of Kenya. She stated that the Appellant had buried their people on the land and that the Respondent had not constructed on the land. 11. DW1, Simon Mbungu Muchee adopted his written statement dated 24/08/2022 as his evidence in chief. He stated that he was born and had been residing on his father’s land since 1963 and that they had done developments on the land. He stated that he did not know the Respondent and only saw him in court. He urged the court to direct that the land belonged to his father. He stated that his land did not have a parcel number. 12. DW2, Njeru Magugu adopted his written statement dated 24/08/2021 as his evidence in chief. He stated that the Appellant was his neighbor. On cross examination, he stated that the Appellant was older than him and that he was born on the suit land. He stated that he did not know that Appellants parcel number as the land has not yet been surveyed. 13. DW3 Itumbo Njagi adopted his written statement dated 24/08/2021 as his evidence in chief. He stated that he did not know whether adjudication was done and that those who surveyed the land stole their land. That they did not report that their land was stolen. He stated that he was born in 1930 and that he did not know his parcel number and that the suit land belonged to the nine Tharaka clans. 14. Upon evaluating the evidence, the trial court found that the Respondent was the registered owner of land parcel Evurore/Kamarandi/742 and had been issued with a title deed. It held that there was no evidence that the title had been acquired fraudulently, illegally, unprocedurally, or through misrepresentation. Consequently, the Respondent’s title was deemed legally acquired and binding. 15. On the Appellant’s claim for adverse possession, the trial court relied on the case of Koech Kangogo v Chebii Yego (2018) eKLR, where it was held that time for purposes of adverse possession does not run during the process of consolidation, demarcation, and adjudication, but only begins to run upon registration of the proprietor. Applying that principle, the court found that the Respondent was registered as proprietor on 04/10/2017 and that the suit was filed in 2019, before the statutory period of twelve years had lapsed. The court therefore held that the Appellants' claim for adverse possession was premature and could not succeed. Having found that the Respondent had proved ownership of the suit land, the court held that the Appellants had no claim or legal interest in the property. Consequently, it issued an eviction order against the Appellants, dismissed their counterclaim, and directed that each party bear its own costs. 16. The Appellant was aggrieved by the impugned decision and preferred the present Appeal on the following grounds; 17. That the Learned Trial Magistrate erred in law and fact in dismissing the Appellant's counter-claim when there was overwhelming evidence to support the counter-claim. 18. That the Learned Trial Magistrate erred in law and fact in holding that the Appellant had not proved his case against the Respondent when there was sufficient evidence to show that the Appellant has been in exclusive occupation of the land since 1972, a period of over 50 years. 19. That the Learned Trial Magistrate erred in law and fact in failing to find that the registration of the land in the name of the Respondent was procured through fraud and unprocedurally. 20. That the Learned Trial Magistrate erred and misdirected himself in law, in failing to find that a mere title to the suit land was not sufficient prove of ownership and that the Respondent had to prove the root of the title, which he failed to do. 21. That the Trial Magistrate erred in failing to adequately evaluate and analyze the evidence of the Appellant, because, had he done that, he would have come to a different decision. 22. That the whole judgment of the Trial Magistrate was against the weight of evidence. 23. The Appellant sought to have the appeal allowed, the judgement of the trial Court set aside and substituted with a judgement in favour of the Appellant as per the counterclaim and costs of the suit. 24. When the appeal came up for directions, the parties agreed to canvass the appeal by way of written submissions. The Appellant filed submissions dated 05/05/2025 through the firm of Murango Mwenda and Company Advocates. 25. He submitted that although the Respondent produced a title deed to support his claim of ownership, he had never been in occupation of the suit land, whereas the Appellant had been in occupation thereof. He argued that the Respondent acquired the title in 2017 while the Appellant was already occupying the land and that he had pleaded in the lower court that the title was acquired illegally. The Appellant contended that the burden of proof remained on the Respondent to prove his case on a balance of probabilities. He argued that the Respondent failed to prove the root of his title and relied solely on a certificate of title without producing documents showing how he acquired ownership of the suit land. He submitted that the Respondent did not produce an adjudication register or call any witness from the adjudication office to demonstrate that the land had gone through the adjudication process and that the title was lawfully acquired. 26. He further submitted that the trial court failed to properly consider his evidence. He maintained that he was born on the suit land in 1963 and had lived there with his father. That this evidence was supported by two elderly witnesses who testified that the Appellant's father inherited the land from his own father and had occupied it for many years. He argued that the trial magistrate failed to take this evidence into account and consequently reached the wrong conclusion and that had the court properly considered the evidence he adduced, it would not have found that the Respondent was the owner of the suit land. He relied on the cases of Kirugi & Anor v Kabiya & 3 others (1987) KLR 347, Mbuthi v Osman & Anor (2024) KEELC 387(KLR) among others to support his submissions. 27. The Respondent filed submissions dated 12/02/2026. He submitted that he was registered as the proprietor of the suit land on 04/10/2017 and that the suit herein was filed on 21/06/2019, when he had only been the registered owner for about three years. He submitted that if it were true that the nine Tharaka clan members had occupied the suit land since 1972, they ought to have been registered during the adjudication process under the Land Adjudication Act. It was also submitted that the Appellant's counterclaim was unsupported by any evidence to demonstrate the developments carried out on the suit land over the alleged fifty-year period. The Respondent therefore contended that the Appellant had failed to demonstrate sufficient grounds to challenge the dismissal of the counterclaim. He maintained that the appeal lacked merit, was misconceived in law, amounted to an abuse of the court process, and was an attempt to challenge the lawful registration of the suit land in his name. Accordingly, he urged the court to dismiss the appeal with costs and uphold the orders of the lower court. 28. Having considered the record of appeal and the rival submissions, I find that the issues for determination are; 29. Whether the Appellant has acquired title to land parcel No. Evurore/Kamarandi/742 by way of adverse possession. 30. Whether the Respondent is entitled to an order of eviction against the Appellant and his family members, agents, servants, and/or any other persons claiming through him from the suit land. 31. On the first issue, the Respondent produced a valid title deed for land parcel Evurore/Kamarandi/742, which under Section 26 of the Land Registration Act constitutes prima facie evidence of ownership and is only impeachable on grounds of fraud, misrepresentation, illegality, or procedural impropriety, none of which were proved in this case. The Appellant’s main contention was that the Respondent acquired the land irregularly and that the Appellant, together with other clan members, had been in occupation of the suit land for a long period prior to the Respondent’s registration. However, no credible or documentary evidence was tendered to substantiate the allegations of illegality or irregular acquisition. In the absence of such evidence, the trial court properly found that the Respondent had established ownership of the suit land. 32. The Appellant further advanced a claim for adverse possession. He contended that the suit land originally belonged to the nine Tharaka clans and that they had occupied it since 1972. He also called witnesses in support of his claim and maintained that he had lived on the suit land with his father and developed it over a period of more than 50 years. 33. The law on adverse possession is set out under Section 13 (1&2) of the [Limitation of Actions Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1968/21) which provides that: 34. 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), 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. 35. 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. 36. In the case of [Mtana Lewa –vs- Kahindi Ngala Mwagandi](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2015/532) [2015] eKLRthe 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.” 1. It therefore follows that for a claim of adverse possession to succeed, the Appellant must demonstrate, inter alia, that the land is registered in the name of a proprietor against whom time can legally run, and that he has been in open, continuous, exclusive, and uninterrupted possession of the suit land for a period of at least twelve (12) years. In the present case, the Appellants occupation of the suit land is not denied. It is also not in dispute that the Respondent was registered as proprietor of the suit land on 04/10/2017, and a title deed issued on 22/02/2018. Prior to that, the Respondent testified that the land was undergoing the adjudication process under the Land Adjudication Act, a position that was not effectively rebutted by the Appellant through any evidence. 2. Accordingly, time for purposes of adverse possession could only begin to run from the date of the Respondents registration in 2017. The suit having been filed on 21/06/2019, the Appellant had only been possession of the land for a period of less than two years which is far below the statutory threshold of twelve (12) years. The trial court rightfully found that the Appellant did not prove that he had become entitled to the suit land by way of adverse possession. This Court finds no basis to interfere with that finding. 3. On the second issue, whether the Respondent is entitled to an order of eviction, it is evident that the Respondent is the duly registered proprietor of the suit land. The Appellant failed to demonstrate any lawful or proprietary interest in the suit land and his continued occupation of the land therefore amounts to trespass. I therefore agree with the trial court that the Respondent is entitled to an order of eviction against the Appellant and all persons claiming through him. 4. In the result, the appeal lacks merit and is hereby dismissed. The judgement of the trial court is hereby upheld in its entirety. 5. Each party shall bear their own costs of the appeal. DATED, DELIVERED AND SIGNED AT EMBU THIS 04TH DAY OF JUNE, 2026. HON. E.C CHERONO ELC JUDGE, EMBU In the presence of; 1. Mr. Murimi H/B for Mr. Murango for the Appellant 2. Respondent in person-present 3. Ruth C/A