https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4074

Njiru v Mugo (Enviromental and Land Originating Summons 1 of 2017) [2026] KEELC 4074 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 4074 (KLR) Republic of Kenya In the Environment and Land Court at Embu Enviromental and Land Originating Summons 1 of 2017 A Kaniaru, J June 30, 2026 Between Tarcisio Elijio Njiru Plaintiff and Lucy Muthoni Mugo Defendant Judgment 1.The suit herein was initially filed vide an originating summons dated 3/1/2017 and filed in court on 4/1/2017. The originating summons was later amended, re-dated 25/5/2023 and re-filed on 21/9/2023. The disputants are two: Tarcisio Elijio Njiru As Plaintiff And Lucy Muthoni As Defendant. Lucy Muthoni is sued as the administrator of the estate of the late John Njue James. The dispute between the parties relate to land parcel No. Kyeni/Kigumo/3156 (“disputed land” hereafter) which the plaintiff claims an adverse possessor but which the defendant wants to be treated as her own. 2.On the face of the summons, some issues are raised for determination and some orders are prayed for. The issues are raised thus:1.Whether the plaintiff has been exclusively, continuous (sic), notorious (sic), occupation of the suit property for more than twelve (12) years.2.Whether the plaintiff’s occupation of the suit property Kyeni/Kigumo/3156 amounts to adverse possession.3.Whether consequently the said plaintiff has acquired title to the said property by adverse possession against the previous owner and/or the current registered owners by virtue of the said continuous, uninterrupted, notorious, open and exclusively (sic) occupation of the said property for the said period of more than twelve (12) years. 3.The plaintiff anticipates that the issues will be determined in his favor, whereafter the following orders are prayed for:1.That the defendant has been sued in her capacity as the administrator of the estate of John Njue James.2.That the plaintiff has acquired the title deed for land parcel No. Kyeni/Kigumo/3156 by way of adverse possession.3.That this honourable court be pleased to order that the plaintiff TARCISSIO ELIJIO NJIRU be registered as proprietor of the property title No. Kyeni/Kigumo/3156 measuring three (3) acres in place of the 2nd defendant (sic) herein.4.That the defendant bear the cost of this application. 4.The originating summons came with a supporting affidavit in which the plaintiff states, inter alia, that he and the late John Njue James entered into a land sale agreement on 1/6/1992. By that agreement, John Njue was selling to him two (2) acres from land parcel No. Kyeni/Kigumo/3156 at a price of Kshs. 20,000/= per acre. The payment was to be in instalments. The land parcel No. Kyeni/Kigumo/3156 is a resultant subdivision of land parcel No. Kyeni/Kigumo/1995, which is the parcel of land referred to in the agreement. 5.The plaintiff said that the late John Njue James later on added one more acre for purchase. According to the plaintiff, all the land being purchased by him was fully paid for. The late Njue however did not transfer the land to him. The plaintiff went into possession after paying for the land. This is said to have taken place sometimes in 1993. 6.At some point, the seller is said to have gone to United States of America for studies. The same seller instructed his bother to ensure transfer of the purchased land to the plaintiff but the Land Control Board is said to have insisted that it is the seller himself who should effect the transfer. The seller finished his studies in the United States and came back to Kenya in the year 2004. He didn’t initiate the process of transfer but the plaintiff continued occupying and using the land. The seller was said to have been aware of this state of affairs. Then the seller died in a traffic road accident in the year 2006. 7.It would appear that at the time the plaintiff was purchasing the land, the deceased seller had a wife called Lyddia Getaweru. Lyddia was the person the plaintiff was paying the purchase money for the extra one acre that was added for purchase. Lyddia and the seller seem to have gone their separate ways at some point and Lyddia is said to have also relocated to the United States. The defendant herein then came into the picture and when the seller died, it is her, not Lyddia, who initiated succession proceedings. 8.The defendant’s response to the matter is through an affidavit dated 29/1/2024. She denied the plaintiff’s claim and averred that she has all the papers showing her ownership of the land. She also stated that the documents shown by the plaintiff are not genuine. According to the defendant, the plaintiff wants to make her homeless. 9.The court started hearing the matter on 16/5/2024. Only the plaintiff’s side was heard and this happened because on 21/2/2024 the defendant was present when the hearing date of 16/5/2024 was given. On 21/2/2024, the defendant didn’t show up in court and there was no explanation as to why she didn’t come. 10.The plaintiff testified as PW 1. He adopted his written witness statement as his evidence. The substance of the written statement is like that of the supporting affidavit that came with the originating summons. I have already highlighted the salient aspects of the supporting affidavit and I see no need of repeating the same substance here in regard to the witness statement. 11.When PW1 was giving evidence in court, he produced the following exhibits: Sale agreement P Exhibit No. 1 Acknowledgement of payment P Exhibit No. 2 Another acknowledgement of payment P Exhibit No. 3 Other acknowledgement of payments which were accepted as P Exhibit No. 4, P exhibit No. 5, P exhibit No. 6, P Exhibit No. 7, P Exhibit No. 8 and P Exhibit No. 9 respectively. Green Card for the suit land P Exhibit No. 10. Letter from Momanyi Gichuki dated 29/8/2012 asking the plaintiff to vacate the land P Exhibit No. 11. 12.The plaintiff called one witness, Jenadio Njeru Elijio, who testified as PW2. This witness adopted his written witness statement. The statement is dated 3/1/2017 and in it, PW2 said the plaintiff is his brother, that he lives in Karurumo Location at a place that is about one kilometer from the property in dispute. He was also aware, he said, of the sale of that property to the plaintiff by the late John Njue James. The plaintiff was said to be in occupation of the land. The seller is said to have come to Kenya from US in the year 2004. He found the plaintiff occupying the land and did not interfere. This witness said he only heard of the defendant during the funeral of the late John Njue James. 13.After hearing, the plaintiff filed submissions. The submissions are dated 3/10/2024. According to the plaintiff, the issues for determination are whether the plaintiff has been in exclusive, continuous, notorious, open, and uninterrupted occupation of the suit land for more than twelve (12) years; whether the alleged occupation amounts to adverse possession; and whether the plaintiff has acquired title to the property. 14.There was then a highlight of the entire case, and after that focus then shifted to analyzing the issues for determination. On the first issue namely: whether the plaintiff has been in exclusive, continuous, notorious, open and uninterrupted occupation, it was submitted that the seller, who is the defendant’s late husband, had never challenged the plaintiff’s possession, continuous occupation, and quiet enjoyment of the land and that had been the state of affairs from 1993 to the year 2006 when the seller died. 15.It was further submitted that even after the death of the defendant’s husband, the defendant herself never interfered. The plaintiff submitted that though the defendant said she has documents of ownership; she didn’t show or file any. 16.On the second issue namely: Whether the possession and/or occupation amounts to adverse possession, it was submitted that it amounts to such. It was submitted that the plaintiff’s possession of the entire parcel including the one acre later added for purchase dates back to year 2000. The seller came back to Kenya from USA in 2004 and never interfered with the plaintiff’s possession and/or occupation. The defendant herself has never interfered. Adverse possession was said to be well demonstrated. 17.Further, the affirmative finding on the first two issues was consequently said to lead to the position that the plaintiff has acquired title to the property by way of adverse possession. 18.I have considered the case as filed, the evidence made available, and the plaintiff’s submissions. The defence did not prosecute its case. There is therefore no effective rebuttal or refutation of what the plaintiff presented. The claim by the plaintiff is based on adverse possession. In the case of Kasuve –vs- Mwaani Investment Ltd. & 4 others [2004] KLR 184 the court aptly stated as follows:“In order to be entitled to the land by adverse possession the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of 12 years either after dispossessing the owner or by the continuance of possession by the owner on his own volition.” 19.Further, in Wambugu –vs- Njuguna [1983] 172 (at pages 172 - 173) the law on adverse possession was stated thus:“ 2.In order to acquire by the statute of limitations title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title is an act of … inconsistent with the enjoyment of the soil for the purpose for which he intended to use it …“The Limitation of Actions Act, on adverse possession, contemplates two concepts: dispossession and discontinuance of possession. He proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite number of years.” 20.The indispensable threshold to be met in order to prove a claim based on adverse possession was stated as follows in the case of Richard Wefwafwa Songoi –vs- Ben Munyifwa Songoi [2020] eKLR“A person claiming adverse possession must establish the following: on what date he came into possession; what was the nature of his possession; whether the fact of his possession was known to the party; for how long his possession has continued; and that the possession was open and undisturbed for the requisite 12 years.” 21.The statutory endorsement of the concept of adverse possession in Kenya is found mainly in the Limitation of Actions Act (Cap 22) and Land Registration Act, 2012. In the Limitation of Actions, Act, the relevant provisions are Sections 7, 13 and 38. The sections are as follows:Section “7: An action may not be brought by any person to recover the land after the end of twelve years from the date on which the right of actions accrued to him or, if it first accrued to some person through whom he claims, to that person.”Section “13: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 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 is no longer taken to have accrued, and a fresh right of action does not accrue unless and until the some person again takes adverse possession of the land.Section “38” (1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts, he may apply to the High Court for an order that he be registered as the proprietor. 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 the Act.” 22.The Land Registration Act (Cap 300) on its part recognizes adverse possession as an overriding interest. Section 28 of the Act lists various categories of overriding interests and at sub-section (h) thereof, the concept is recognized as “rights acquired or in the process of being acquired by virtue of any written law relating to the Limitation of actions or by prescription.” 23.In the matter now on hand, the plaintiff is required to show compliance with a tripartite test comprised in the latin maxim: NEC VI, NEC CLAM, NEC PRECARIO, which in English means without force, without secrecy, and without permission. The plaintiff presented evidence that he and the former registered owner of the land entered into a sale agreement which involved or related to two (2) acres. The plaintiff went into occupation, use and/or possession of the land after paying the purchase price. That happened sometimes in the year 1993. Later on, the seller is shown to have added an extra acre which the plaintiff finished paying for sometimes in the year 2000. 24.It is clear that the plaintiff occupied and/or possessed the land as his own. The seller was supposed to transfer the land to him but he didn’t do so. In law, such transfer, or at least the process leading to it, was supposed to take place within six months. This is clear from the provisions of Land Control Act. That period ended but the plaintiff continued in occupation and possession. Such possession and/or occupation became adverse immediately the six-month period ended. And whether that period is considered from 1993 when the plaintiff occupied and possessed the two acres initially sold to him, or the year 2000 when the entire three (3) acres (which included the extra one acre sold to him later) were occupied and/or possessed, it is clear that by the time this suit was filed (which is year 2017) the 12-year period had fully ran its mile and the plaintiff had become an adverse possessor. 25.The defendant therefore cannot be heard to say that she legally owns the land. The plaintiff has shown he is adverse possessor. It is shown well that he didn’t occupy or possess the land by stealth. He did so openly. There was never any interruption in the possession and/or occupation and the deceased registered owner and/or the defendant herself were shown to have been aware of the occupation and possession. 26.In the premises, this court finds that the plaintiff’s claim is well proved on a balance of probabilities. All the issues raised in the amended originating summons are answered in the affirmative and the four prayers in the same summons are hereby granted. 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 - AbsentNo Counsel Present