https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3702

Muhuthu v Nyokabi (Sued as a Legal Representative of the Estate Of Peter Kariuki Kahumbu - Deceased) (Enviromental and Land Originating Summons E008 of 2025) [2026] KEELC 3702 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3702 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Enviromental and Land Originating Summons E008 of 2025 MN Gicheru, J June 18, 2026 IN THE MATTER OF CLAIM FOR TITLE TO LAND BY ADVERSE POSSESSION OVER L.R. NO. ITHANGA/PHASE IV/SETTLEMENT SCHEME/4448 Between Teresia Wanjiku Muhuthu Plaintiff and Mary Nyokabi (Sued as a Legal Representative of the Estate Of Peter Kariuki Kahumbu - Deceased) Defendant Judgment 1.The Plaintiff seeks the following reliefs against the Defendant.i.That Teresia Wanjiku Muhuthu be declared to have acquired title by adverse possession to the suit premises known as L.R. Ithanga/Phase IV/ settlement scheme/448 measuring 1.24 Ha.ii.That the registration of Peter Kariuki Kahumbu as proprietor of L.R. No. Ithanga/Phase IV/Settlement Scheme/448 and any other person deriving title from Peter Kariuki Kahumbu based on the land be cancelled forthwith and the Land Registrar do rectify the register to enter the names of the Plaintiff as the registered proprietor of the said property in place of the late Peter Kariuki Kahumbu or anyone deriving title from the Defendant.iii.That the costs of these proceedings be borne by the Defendant. 2.The Plaintiff’s case is as follows. Firstly, more than 30 years ago, her husband Michael Muhuthu Mwangi bought 4 acres of land which were to be excised from L.R. No. Ithanga/Phase IV/203. The seller was Peter Kariuki Kahumbu the husband of the Defendant. Secondly, the late Michael Muhuthu took possession of the suit land together with his wife the Plaintiff and they settled thereon. They have been living on the land where they have built a permanent house among other developments. Secondly, the later Peter Kariuki Kahumbu died before he could transfer the suit land to the Plaintiff’s husband. Three, the Defendant is the wife and legal representative of the estate of her late husband and she is reluctant to transfer the suit land to the Plaintiff making the filing of this suit necessary. 3.In support of her case, the Plaintiff filed the following evidence.a.Supporting affidavit dated 6-3-2025.b.Copy of grant of letters of administration and copy of certificate of grant issued in Kandara Magistrates’ Court Succession Cause No. E038/2022.c.Copy of certificate of official search for parcel No. Ithanga Phase IV/Settlement Scheme/448 dated 7-3-2024.d.Six (6) photographs showing houses, mango trees, cassava plants, banana stools an Napier grass growing on some land.e.Copy of limited grant issued in Succession Misc. Case No. E030/2024 at SRM’S Court at Kenol dated 24-6-2024.f.A copy of sale agreement and 3 acknowledgment of receipt of purchase price by Peter Kariuki Kahumbu from Michael Muhuthu Mwangi.g.Letter by Chief Ithanga dated 27-3-2023. 4.The summons is opposed by the Defendant who has sworn a replying affidavit which is dated 3-6-2024 and in which she replies as follows. One, the dispute over the suit land was primarily between Michael Muhuthu Mwangi and Peter Kariuki Kahumbu during their lifetime. After the original parties died, the current parties took over the dispute. The Plaintiff’s claim is based on misrepresentation. Two, at Thika Civil Suit No. 395 of 2004, the dispute was determined on merit in favour of Peter Kariuki Kahumbu as per the judgment dated 10-12-2018. The order dated 17-4-2012 attached to the Plaintiffs’ documents is a forgery. Three, the occupation of the suit land by the Plaintiff and her husband has been interrupted by litigation and the claim for adverse possession cannot succeed dating back to 2004. For the above and other reasons, the Defendant prays for the dismissal of the Plaintiffs’ suit. 5.In support of her case, the Defendant filed the following evidence.i.Replying affidavit dated 3-6-2024.ii.Copy of judgment dated 10-12-2018 issued in Thika Civil Case No. 395/2004.iii.Witness statement dated 27-1-2026.iv.Copy of title deed for L.R. Ithanga Phase IV dated 7-11-1995.v.Copy of order dated 2-4-2012. 6.At the trial on 22-4-2026, the Plaintiff testified on oath and reiterated her case as per paragraph [2] above. The Defendant did the same and repeated what is in her pleadings. 7.I have carefully considered all the evidence adduced in this case by both sides including the affidavits, the documents and the witness statements. I find that the following issues arisei.Whether the Plaintiff and her husband have occupied the suit land since purchase before 1992.ii.Whether the occupation has been without force, without permission from the deceased or his heirs and as of right.iii.Whether Thika CM’s Court case No. 395/2004 ever dealt with the issue of adverse possession.iv.Whether the Plaintiff is entitled to the suit land by operation of any other law beside the doctrine of adverse possession. 8.On the first issue, I find that the Plaintiff and her husband occupied the land in the year 1992 or before. The pleadings and the evidence on record do not state the date of the sale agreement between Michael Mahuthu Mwangi and Peter Kariuki Kahumbu. The earliest acknowledgement of part payment of the purchase price is dated 16-6-1992. I believe that the Defendant’s husband received various amounts of money from the Plaintiff’s husband. The Plaintiff’s husband was buying the suit land. In addition to the evidence of payment of the purchase price, there evidence of houses on the suit land and cultivation by the Plaintiff. 9.Regarding the second issue, I find that the original entry was with the permission of the registered owner, Peter Kariuki Kahumbu. However, that permission was withdrawn in the year 2004 when the late Peter Kariuki Kahumbu filed Thika CM’s Civil Case No. 395 seeking to evict the late Michael Mahuthu Mwangi from the suit land. It is not clear for how long the Plaintiff’s husband had occupied the suit land but if the occupation was in 1992, then in the year 2004, 12 years had elapsed. 10.It is my finding that Thika CM’s Case No. 395/2004 did not deal with the issue of adverse possession. From the judgment dated 10-12-2018, it seems that the late Peter Kariuki Kahuthu sought to evict the late Michael Mahuthu Mwangi. The late Peter Kariuki Kahumbu succeeded but on condition that he compensated Michael Muhuthu Mwangi with Kshs. 770,000/= for the development on the land which included three buildings. There is no evidence that the Defendant’s husband ever complied with the said order. 11.As for the final issue, I find that the Plaintiff is entitled to the suit land through the doctrine of constructive trust and proprietary estoppel. Neither the deceased Peter Kariuiki Kahumbu nor his dependants can be allowed to use failure to obtain the consent of the land control board as a ground for saying that the sale agreement leading to the Plaintiff’s occupation of the suit land is null and void. The Courts have used the two doctrines of constructive trust and proprietary estoppel to prevent unconscionable conduct, particularly in disputes over land and property. The doctrine of constructive trust is not created by an express agreement but by the conduct of the parties.In this case, it is my finding that when Peter Kariuki Kahumbu took Michael Mahuthu’s money in exchange for the suit land a constructive trust was created which Peter Kariuki Kahumbu could not go back on. It was his duty to obtain the consent and to transfer the suit land to the Plaintiff’s husband. Having breached this duty, he cannot be allowed to benefit from his own fault. In the case of Willy Kitilit vs. Michael Kibet [2018] eKLR, whose facts are similar to this, it was held that the doctrines of constructive trust and proprietary estoppel are applicable and enforceable in land transactions, which would otherwise be void for the lack of the consent of the Land Control Board. The Court held that equity is now a constitutional value under Article 10 of the Constitution and it overrides the Land Control Act. 12.Owing to the uncertainty over the date of occupation of the suit land by the Plaintiff and her husband, I find that the doctorine of adverse possession is not definite. What is definite is that the Plaintiff is entitled to the suit land through the doctrines of constructive trust and proprietary estoppel.In conclusion and for the reasons given, I enter judgment for the Plaintiff against the Defendant in terms of prayers 1,2, and 3 of the Originating Summons dated 6-3-2025.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 16TH DAY OF JUNE, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistants– AntonyPlaintiff’s Counsel – Mr NdunguDefendant present in person