https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5225

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC OS E017 OF 2024** FAITH NAITORE THURANIRA ……………………....……..1ST PLAINTIFF HELLEN KATHAMBI THURANIRA ………………………2ND PLAINTIFF GLORY KANANA……………………....................................3RD PLAINTIFF PATRICK KINYUA …………………………………………..4TH PLAINTIFF VERSUS JULIUS KARIMI WAMITI…………………….…………..1ST DEFENDANT FRANCIS MWITI WANDERI………………………..……2ND DEFENDANT KENNEDY MURITHI WANDERI…………………...……3RD DEFENDANT GEOFFREY KINOTI M’KIRIGA…………………………4TH DEFENDANT AND **AS CONSOLIDATED WITH MERU ELC E003 OF 2025** **[FORMERLY MERU CMELC E092 OF 2023]** JULIUS KARIMI WAMITI…………………….…………..1ST PLAINTIFF FRANCIS MWITI WANDERI………………………..……2ND PLAINTIFF KENNEDY MURITHI WANDERI…………………...……3RD PLAINTIFF GEOFFREY KINOTI M’KIRIGA…………………………4TH PLAINTIFF VERSUS JAPHET KAAI IRINGO ……………………………….1ST DEFENDANT DAVID MUTHEE MBURUGU………………………...2ND DEFENDANT JOHN GIKUNDA……………………………………….3RD DEFENDANT FAITH NAITORE THURANIRA …………………....…..4TH DEFENDANT HELLEN KATHAMBI THURANIRA ……………………5TH DEFENDANT GLORY KANANA……………………..................................6TH DEFENDANT PATRICK KINYUA ………………………………………..7TH DEFENDANT GRACE MAKENA…………………………………………8TH DEFENDANT SAMUEL THURANIRA KIRIMI………………………….9TH DEFENDANT PETER MURITHI…………………………………………..10TH DEFENDANT **JUDGMENT** 1. The Originating Summons, namely ELC OS E017 of 2024, was consolidated with ELCE003 of 2025 [formerly Meru CMELC No. E092 of 2023]. Upon the consolidation, the originating summons was constituted as the lead file. In addition, the plaintiffs vide the originating summons remained as the plaintiffs. 2. On the other hand, the plaintiffs vide ELC E003 of 2025 [formerly Meru CMELC No. E092 of 2023] were constituted as the defendants. Moreover, the plaint in the said suit was deemed as the counter claim. 3. The counter claimers [plaintiffs in ELC E003 of 2025] filed the plaint dated the 11.09.2023 and wherein same sought various reliefs. The reliefs sought *vide* the named plaint are: 4. ***A declaration that the plaintiffs are the registered proprietors of LR. NO. Buuri/Ruiri/Rware/709,4886,3162 and 4889, respectively.*** 5. ***An order of permanent injunction restraining the defendants by themselves, agents, servants or anybody whatsoever acting for or on their behalf from entering, interfering , transferring or in any way interfering with the plaintiffs’ rights of ownership over LR. NO. Buuri/Ruiri/Rware/709,4886,3162 and 4889.*** 6. ***An order of eviction do issue against the defendants from LR. NO. Buuri/Ruiri/Rware/709,4886,3162 and 4889.*** 7. ***Mense profits.*** 8. ***General damages.*** 9. ***Costs of the suit and interests thereon.*** 10. ***Any other relief as this court may deem fit.*** 11. The defendants in respect of ELC No. E003 of 2025 [formerly Meru CMELC E092 of 2023] duly entered appearance and thereafter filed their statements of defence. 12. In particular, the Hon. Attorney General entered appearance and filed a statement of defence on behalf of the 1st and 2nd defendants. The statement of defence is dated the 18.10.2023. The 1st and 2nd defendants denied the assertions contained vide the plaint. Moreover, it was contended that the 1st and 2nd defendant are the Chief and Assistant Chief, respectively, and thus same have no ownership claims to and in respect of the suit properties. 13. The 3rd defendant entered appearance and filed a statement of defence dated the 20.12.2023. The 3rd defendant denied the assertions contained at the foot of the plaint. In addition, the 3rd defendant averred that same had entered into a lease agreement with the 4th to the 8th defendants in the suit. 14. It was the further contention by the 3rd defendant that at the time of entry into and execution of the lease with the 4th to 8th defendants, the property, which was the subject of the lease, was still under adjudication. In any event, it was averred that save for the lease, the 3rd defendant does no claim any ownership rights in respect of the suit properties. 15. The 4th to the 8th defendants entered appearance and filed a statement of defence and counter claim. The statement of defence is dated the 04.12.2023. The named defendants have denied the assertions by /on behalf of the plaintiffs. In addition, the named defendants have posited thus: The property known as Buuri/Ruiri/Rwarera/709 measures approximately 13 acres; the said plot was gathered by Dorcas Ciaembu [deceased]; the plot was thereafter demarcated in favor of Dorcas Ciaembu; the said deceased lived/resided on the plot from the year 1974; the 4th to 8th defendants are the children of Dorcas Ciaembu [deceased]; the 4th to 8th defendants have been using the named plots; the said plot lawfully belongs to Dorcas Ciaembu [deceased]; and the registration of the said plot in the names of the plaintiffs was irregular, illegal and unlawful. 16. Additionally, the 4th to 8th defendants have thereafter sought various reliefs vide the counter claim. The reliefs are: 17. The subdivision of Plot number Buuri/Ruiri/Rwarera/709 adjudication as initially demarcated and the creation of LR. No. Buuri/Ruiri/Rware/709,4886,3162 and 4889 and the issuance of title deeds to the 1st to the 4th defendants to the counter claim be declared illegal and actuated by fraud. 18. A declaration that the plaintiffs are the bona fide of owners of Land Parcel number Buuri/Ruiri/Rware/709 adjudication section as initially demarcated. 19. A permanent injunction restraining the 1st to the 4th defendants, their agents, servants and or successors in title from in anyway interfering with the plaintiffs use and or occupation of the suit land. 20. Any other or better orders as may meet the ends of justice. 21. Costs of the suit. 22. The 4th to the 8th defendants in ELC E003 of the 2025 [formerly Meru CMELC No. E092 of 2023] filed the originating summons dated the 04.11.2024. The originating summons has highlighted various reliefs. The reliefs are: 23. ***Whether the plaintiffs/applicants have been in open, continuous and exclusive possession of Land Parcels Buuri/Ruiri/Rwarera/709,4886,3162 and 4889 for a period of more than 12 years.*** 24. ***Whether the plaintiff/applicant have become entitled to land parcels number Ruiri/Rwarera/709,4886,3162 and 4889 by operation of the law.*** 25. ***Whether the plaintiff/applicant should now be registered the owners of land parcels number Ruiri/Rwarera/709,4886,3162 and 4889.*** 26. ***Whether the plaintiff/applicant have been in the suit land without the defendants permission.*** 27. ***Whether the plaintiff/applicant have been in open, continuous, uninterrupted, without permission in occupation of the suit land for a period of 12 years and more.*** 28. ***Whether the deputy registrar/executive officer of this court should be empowered to sign all the necessary documents to facilitate transfer of the land to the plaintiff/applicant in the event of the respondent declining to so sign.*** 29. ***Whether the defendants should be condemned to pay costs of this suit.*** 30. The plaintiffs’ case is premised on the evidence of three [3] witnesses. The witnesses are Hellen Kathambi Thuranira, Rosa Mukira M’Ringera and Jacob Mutwiri. The witnesses testified as PW1, PW2 and PW3. 31. It was the testimony of Hellen Kathambi Thuranira [PW1] that same is the 2nd plaintiff in respect of the originating summons. In addition, the witness averred that same is also familiar with Glory Kanana; Patrick Kinyua and Grace Makena. The witness averred that the said persons are her siblings. 32. Additionally, the witness averred that same is conversant with the facts of this case. Moreover, the witness asserted that same has filed a witness statement dated the 04.11.2024. In addition, the witness referenced the supporting affidavit sworn on the 04.11.2024. Besides, the witness also adverted to the witness statement dated the 20.12.2023 and which was filed *vide* Meru CMELC E092 of 2023 [now ELC E003 of 2025]. The witness thereafter sought to adopt the two [2] sets of witness statements and the supporting affidavit as her evidence in chief. Instructively, the named documents were duly adopted and constituted as the evidence in chief of the witness. 33. The witness also referenced the list and bundle and documents dated the 04.11.2024 and sought to produce the various documents highlighted thereunder. However, the witness conceded that the 1st and 2nd documents have been omitted from the bundle. Thereafter, the witness tendered and produced the remainder of the documents as exhibits P1 to P5, respectively. 34. The witness also referenced the list and bundle of documents dated the 20.12.2023 and which was filed *vide* Meru CMELC E092 of 2023 and sought to produce the documents thereunder. There being no objection, the documents were produced as exhibits P6 and 7, respectively. 1. It was the testimony of the witness that same has filed the originating summons dated the 04.11.2024. The witness sought the reliefs thereunder. In addition, the witness also alluded to the statement of defence dated the 04.12.2023; and thereafter sought the reliefs thereunder. 2. On cross examination by learned counsel for the defendants in the originating summons and the counter claimers, the witness averred that same has been staying on the land. The witness averred that the land wherein same stays is plot number 709, situated at Ruiri/Rwarera adjudication section. In addition, the witness posited that the land measures approximately 15 acres. 3. It was the further testimony of the witness that the land in question, plot number 709 was given to her mother. The witness clarified that her mother was Dorcas Ciaembu [deceased]. Nevertheless, the witness conceded that same has not brought to court any record or register, to show that plot number 709 was registered in the name of Dorcas Ciaembu [deceased]. 4. Upon being referred to exhibit P2, the witness clarified that the document is a complaint, which was lodged with the District Land Adjudication Officer [DLASO]. The witness added that the complaint was in respect of a request so that the witness and her siblings could be shown their land. In particular, the witness posited that the complaint was intended to have same allocated land. 5. While still under cross examination, the witness averred that the complaint was seeking to have the DLASO to come to the land and to confirm where their [plaintiffs’] were staying. Moreover, the witness averred that the 1st plaintiff had been married to one David Mutuma Mugambi. 6. It was the further testimony of the witness that same is not aware whether David Mutuma Mugambi had been sued in respect of the suit land. In addition, the witness averred that she is not aware of any decision that has ever been made against the 1st and 3rd plaintiffs. The witness posited that she does not know whether the 1st and 3rd plaintiffs have ever been found guilty of forcible retainer. 7. While still under cross examination, the witness testified that she had lodged an objection with the DLASO. The witness added that the objection was in respect of plot number 709. In addition, the witness averred that the objection was not dismissed. However, the witness posited that same [plaintiffs] were told to remain on the land. 8. Upon being referred to exhibit P3, the witness clarified that the document is a copy of a lease agreement. The witness averred that the lease was between the plaintiffs and the John Gikunda. Besides, the witness testified that she does not know whether John Gikunda has been charged with a criminal offence over the suit property. 9. It was the further testimony of the witness that other than the originating summons, the plaintiffs have equally filed a counter claim. The witness clarified that the crux of the counter claim relates to fraud and illegality. The witness added that though she claims that the original parcel of land number 709 was illegally subdivided, same has tendered no document to show that said plot was subdivided. 10. On cross examination by learned counsel for the 1st and 2nd defendants to the counter claim [the Hon. Attorney General], the witness testified that she lodged an objection with the DLASO. However, the witness admitted that she had not tendered any document to show that an objection was lodged. Moreover, the witness conceded that she has not produced any proceedings relating to an objection. 11. While still under cross examination, the witness testified that the objection which was lodged was against Julius Wamiti [the 1st defendant]. The witness further testified that even though she contends that the land in question measures 15 acres, she has not brought any document to confirm the acreage. 12. Regarding the outcome of the objection, the witness testified that the objection is pending determination. Moreover, it was the testimony of the witness that same were advised to continue residing/occupying the said plot. Nevertheless, the witness posited that the objection was lodged in the year 2018. 13. On cross examination by the learned counsel for the 3rd defendant to the counter claim, the witness averred that same [witness] is conversant with John Gikunda. The witness added that her siblings and herself leased out a portion of plot 709 to John Gikunda. The witness added that the portion which was leased out measured 6 acres. 14. It was the further testimony of the witness that lease term was for three years. In particular, the witness averred that the lease commenced in 2023. Besides the witness posited that when the suit was filed, John Gikunda, was still on the land. Nevertheless, the witness added that John Gikunda is no longer on the land. 15. The second witness who testified on behalf of the plaintiff was Rose Mukira M’Ringera. She testified as PW2. 16. It was the testimony of the witness that same is conversant with the facts of the case. In addition, the witness averred that same has since recorded and filed a witness statement dated the 30.10.2024. Thereafter, the witness sought to adopt the said statement as her evidence in chief. Besides, the witness also referenced the statement dated the 20.12.2023 and which was filed vide Meru CMELC No. E092 of 2023 [now ELC E003 of 2025]. 17. Thereafter, the witness sought to have both statements adopted and constituted as the evidence in chief. Suffice it to state that the two [2] sets of the statement were duly adopted and constituted as the evidence in chief of the witness. 18. On cross examination by learned counsel for the defendants and counter claimers in respect of ELC E003 of 2025, the witness averred that she has been residing on the suit property since 1989. In addition, the witness posited that the land belonged to Dorcas Ciaembu [deceased]. However, the witness conceded that she was not shown any document confirming that the land in question belonged to Dorcas Ciaembu. 19. It was the further testimony of the witness that her plot is number 4767. However, the witness admitted that she has no document to show ownership of the said plot. 20. Regarding occupation, the witness testified that the rest of the plaintiffs and herself are on plot number 709. Nevertheless, the witness admitted that some of the plaintiffs left the land in 1992 while others remained on the land. 21. On cross examination by learned counsel for the 1st and 2nd defendant to the counter claim [the Honourable Attorney General], the witness testified that plot number 709 belongs to Bernard Njagi. In addition, the witness testified that the plot was adjudicated in the name of Bernard Njagi. However, the witness averred that she does not know whether plot number 709 has been issued with a certificate of title. 22. The third witness who testified on behalf of the plaintiffs was Jacob Mutwiri. The witness testified as PW3. 23. It was the testimony of the witness that same is a resident of Maili Saba. The witness averred that Maili Saba is within Kiirua/Nkando. The witness averred that Kiruua/Nkando is close to Ruiri/Rwarera. To this end, the witness averred that he is therefore, conversant with the area. 24. Additionally, the witness posited that he has since recorded and filed a witness statement. The witness referenced the statement dated the 30.10.2024 and thereafter sought to adopt and rely on the same as evidence in chief. Besides, the witness also adverted to the witness statement dated the 20.12.2023 filed *vide* Meru CMELC No. E092 of 2023 [ know ELC E003 of 2025]. Thereafter, the witness invited the court to adopt the statement as his evidence in chief. 25. It suffices to state that the two sets of the witness statements namely the statement dated the 30.10.2023 and 20.12.2023, were duly adopted and constituted and as the evidence in chief of the witness. 1. On cross examination by learned counsel for the defendants and the counter claimers, the witness averred that same is conversant with the plaintiffs herein. The witness added that the plaintiffs are the ones who are in occupation of the land. In addition, the witness averred that the plaintiffs have been in occupation of the land since the year since the year 2006. Moreover, the witness posited that the plaintiffs are the owners of the land. 2. It was the further testimony of the witness that he has indicated in the statement that the plaintiffs have leased out the portions of the suit land. Moreover, the witness indicated that the land has been leased out to the three persons. Thereafter, the witness indicated that the suit land, is under the occupation of the plaintiffs. 1. With the forgoing testimony, the Plaintiffs’ case was closed. 2. The defendants/counter claimers case was premised on the evidence of three [3] witnesses. The witnesses are: Francis Mwiti Wanderi, Geoffrey Kinoti Kirigia and Johnson Murithii Njue. The witnesses testified as DW1, DW2 and DW3, respectively. 3. It was the testimony of DW1 [Francis Mwiti Wanderi] that same is the 1st defendant in respect of the originating summons. Moreover, the witness averred that same is conversant with the facts of the case. To this end, the witness referenced the statement dated the 03.03.2025 and which statement the witness sought to adopt and rely on as his evidence in chief. Suffice it to state that the statement was duly adopted and constituted as the evidence in chief of the witness. 4. Furthermore, the witness referenced the list and bundle of documents dated the 03.03.2025 and thereafter sought to produce the documents as exhibits before the court. There being no objection to the production of the documents, same were duly admitted and constituted as exhibits D1 to D10, respectively. 5. Additionally, the witness referenced the list and bundle of document dated the 11.09.2023 filed vide Meru CMELC No. E092 of 2023 [now ELC No. E003 of 2025]. The witness sought to produce the documents. In the absence of any objection the documents were produced as Exhibit D11 to D24, respectively. 6. On the other hand, the witness adverted to the witness statement dated the 11.03.2024 and filed in Meru ELC OS E017 of 2024. Thereafter the witness sought to rely on the witness statement as evidence in chief. In addition, the witness also referenced the replying affidavit sworn on the 05.02.2025. The witness also sought to have same admitted/constituted as the evidence in chief. Notably, the documents [statement dated 11.03.2024 and replying affidavit sworn on 05.02.2025] were adopted and constituted as further evidence in chief of the witness. 7. It was the further testimony of the witness that same filed the plaint dated the 11.09.2023. The witness thereafter sought to adopt and rely on the contents thereof. Moreover, the witness invited the court to grant the reliefs thereunder. 8. On cross examination by learned counsel for the 3rd defendant, the witness averred that same is in occupation of his two parcels of land. The witness added that he has been in occupation of the two parcels of land since 1969. In any event, the witness testified that he is still in occupation of the suit properties. 9. Be that as it may, the witness averred that the plaintiffs herein and the third defendant have since trespassed onto the suit properties. Nevertheless, the witness clarified that the 3rd defendant is no longer on the suit property. 10. While still under cross examination, the witness averred that the suit property came out of the adjudication and demarcation process. In addition, the witness testified that subsequently, certificates of titles, were issued. The witness added that he obtained his certificate of tile on the 20.07.2023. 11. Regarding the claim as against the 3rd defendant, the witness averred that the 3rd defendant has been sued because he trespassed onto plots numbers 1262 and 4886, respectively. 12. On cross examination by learned counsel for the 1st and 2nd defendants to the counter claim [the Honourable Attorney General], the witness averred that the he acquired plot number 3162 from his father [now deceased]. The witness clarified that he acquired the plot by lodging objection number 2563, which culminated into the transfer of the land in question. 13. It was the further testimony that the other parcels of land, were subdivisions of plot number 3162. In particular, the witness averred that his father gifted five acres of land. Moreover, it was the further testimony of the witness that parcel numbers 3162 and 4886, belong to him. To this end, the witness averred that he has brought copies of the letter of the land adjudication office. 14. While still under cross examination, the witness averred that the 1st and 2nd defendants have been cultivating portions of the suit property, albeit as proxies of the 3rd defendant. The witness clarified that the 1st and 2nd defendants are the chief and the assistant chief, respectively. 15. On cross examination by learned counsel for the plaintiffs *vide* ELC OS E017 of 2024, the witness averred that same is conversant with one Thuranira Mutea. In addition, the witness testified that Thuranira Mutea worked with the land adjudication department. Furthermore, the witness, posited that his father, also worked with the land adjudication department. In particular, the witness averred that his father was a demarcation officer. 1. It was the further testimony of the witness that his father [now deceased] lived on parcel numbers 778, 724 , 776 , 777 , 779 and 8029, respectively. Moreover, the witness stated that parcel of land in question measure 9 acres. 2. Additionally, the witness testified that parcel number 709 originally belonged to Wilson Mbogo Wanderi. The witness clarified that the parcel of land changed in acreage as a result of subdivision. The witness added, the he filed and an objection, which culminated into the creation of parcel number 1662. 3. It was the further testimony of the witness that parcel number 709 had not been subdivided as at the year 1986, nevertheless the witness confirmed that the land was later subdivided. 4. Upon being cross examined as to whether same [witness] was familiar with Dorcas Ciaembu, the witness stated the he did not know the said person. Nevertheless, the witness averred that the plaintiffs herein have trespassed onto the land. The witness added that the plaintiffs trespassed onto the land in the year 2016. 5. It was the further testimony of the witness that he has been in occupation of plot numbers 1662 and 4886. The witness added that he cultivates the two parcels of land. 6. The second witness who testified on behalf of the counter claimers, was Geoffrey Kinoti Kirigia. The witness testified as DW2. 7. It was the testimony of the witness [DW2] that same is conversant with the facts of the case. In addition, the witness posited that same has since recorded and filed a witness statement. The witness referenced the statement dated the 11.03.2024 and thereafter sought to adopt and rely on the statement. Instructively, the witness statement was duly adopted and constituted as the evidence in chief of the witness. 8. The witness also adverted to the list and bundle of documents dated the 11.03.2024. The witness sought to produce the documents as exhibits. Moreover, the witness pointed out that the documents had been produced as exhibits by DW1 [Francis Mwiti Wanderi]. 9. It was the testimony of the witness that his title relates to plot number 4889. The witness averred that the plaintiffs have trespassed onto the said plot. To this end, the witness reiterated the desire to procure an order of eviction. 10. On cross examination by learned counsel for the Attorney General, the witness averred that same has sued the 1st and 2nd defendants to the counter claim because same have trespassed onto the suit property. The witness added that the 1st and 2nd defendant to the counter claim are cultivating portions of the suit property. In addition, the witness averred that the 1st and 2nd defendants to the counter claim entered into a lease agreement over and in respect of plot number 4889. 11. It was the further testimony of the witness that arising from the trespass by the 1st and 2nd defendants, to the counter claim, same was obliged to and indeed lodged a complaint with the police. Moreover, the witness averred that the complaint was assigned /booked as OB Number 05/20/10/23. 12. Nevertheless, the witness posited that the 1st and 2nd defendants have never been arrested or charged with any criminal offence. 13. On cross examination by learned counsel for the plaintiff in ELC OS E017 of 2024, the witness testified that he bought his land from Murithi Wanderi. Further, and in addition, the witness averred that his plot arose out of parcel number 709. 14. It was the further testimony of the witness that he bought his plot in the year 1997. The witness however, clarified that the certificate of title was issued in the year 2023. Besides, the witness testified that the plaintiffs entered onto the land in the year 2022. 15. While still under cross examination, the witness testified that the surveyors have visited the suit property. However, the witness averred that he has not been shown the boundaries of the suit property, since he was issued with the certificate of title. 16. The third witness who testified on behalf of the defendants/counter-claimers, was Johnstone Murithii Njue. He testified as DW3. 17. It was the testimony of the witness [DW3] that same is conversant with the facts of the case. Moreover, the witness posited that he has since recorded a witness statement dated the 3.03.2024. The witness thereafter sought to adopt and rely on the witness statement as his evidence in chief. Suffice it to state that the statement was duly adopted as the evidence in chief of the witness. 18. On cross examination by learned counsel for the defendant to the counter claim, the witness averred that he was familiar with Murithi Wanderi. In addition, the witness averred that Murithii Wanderi was residing at Ruiri/Rwarera. Besides, the witness clarified that Murithii Wanderi elected buildings on plot number 709. 19. While still under cross examination, the witness averred that the buildings that were erected by Murithii Wanderi, are now standing on plot number 4886. Regarding John Gikunda, the witness averred that John Gikunda has illegally entered onto parcel number 4886, belonging to Francis Mwiti Wanderi. 20. Additionally, the witness testified that Francis Mwiti Wanderi was issued with a certificate of title in respect of the said parcel of land in the year 2023. 21. On cross examination by the learned counsel for the plaintiffs, the witness averred that he was familiar with Murithi Wanderi. The witness added that Murithii Wanderi married from their family. 22. It was the further testimony of the witness that he has been to the land recently. The witness clarified that he went to the land one year ago. In addition, the witness posited that he went to the land with surveyors to streamline the boundaries of the land for DW1 [Francis Mwiti Wanderi]. 23. With the forgoing, testimony the case for the defendants/counter claimers was closed. 24. The case for the third defendant to the counter claim in predicated on the evidence of one witness. The witness is John Gikunda. The witness testified as DW4. 25. It was the testimony of the witness [DW4] that same is conversant with the facts of the case. In addition, the witness posited that he filed a witness statement dated the 20.12.2023. The witness sought to adopt the same statement as his evidence in chief. Suffice it to state that the evidence was duly adopted and constituted as the evidence in chief of the witness. 26. In addition, the witness adverted to the statement dated the 20.12.2023. The witness thereafter sought to adopt and rely on the contents of the said statement of defence. 27. Similarly, the witness referenced the list and bundle of documents dated the 20.12.2023 and thereafter sought to produce the documents as exhibits. In the absence of any objection, the document was duly produced and admitted as exhibit D1 on behalf of the 3rd defendant to the counter claim. 28. On cross examination by the learned counsel for the plaintiffs, the witness averred that same is familiar/conversant with the plaintiffs [the 4th to 8th defendants to the counter claim]. It was the further testimony of the witness that the plaintiffs leased a portion of their land to him. However, the witness conceded that the lease agreement does not contain the plot/parcel number on the face thereof. In addition, the witness averred that the lease agreement was entered into at the offices of the chief. 29. It was the testimony of the witness that he has since ceased to cultivate on the land. Moreover, the witness posited that he was last on the suit land in the year 2025. 30. On cross examination by learned counsel for the 1st and 2nd defendant to the counter claim [the Honourable Attorney General], the witness averred that the lease agreement was between him and the 4th to 8th defendant to the counter claim. Besides the witness pointed out that the 1st and 2nd defendants to the counter claim, do not reside/occupy the land in question. 31. On cross examination by learned counsel for the defendants/counter claimers, the witness averred that the lease agreement was entered into between himself and the 4th to 8th defendants to the counter claim. Nevertheless, the witness clarified that the lease agreement does not contain the plot number on the face thereof. 32. While still under cross examination, the witness testified that he started using the land in question in the year 2022. Furthermore, the witness conceded that the surveyors visited the land in question and fixed the boundaries. 33. It was the further testimony of the witness that arising from his occupation/activities on the suit land, same has been arrested and charged with a criminal offence. The witness reference Meru CMCR No. E050 of 2024. Furthermore, the witness testified that the said criminal case is still pending. 34. With the foregoing testimony, the case for the 3rd defendant to the counter claim was closed. 35. Following the conclusion of the hearing, the advocates for the parties sought time to file and exchange written submissions. The court thereafter proceeded to and issued directions pertaining to the filing and exchange of the submissions. In particular, the court directed thus: The plaintiffs shall file and serve written submissions within 14 days from the date of the directions; the defendants shall file and serve written submissions within 14 days from the date of service; and the plaintiffs shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 36. The plaintiffs filed written submissions dated the 15.07.2026. The plaintiffs have highlighted two [2] key issues. The issues are: Whether the plaintiffs have proved their claim under adverse possession; and Whether the plaintiffs have become entitled to be registered as owners of the suit lands by virtue of prescription. 37. The defendants/counter claimers have filed written submissions dated the 07.07.2026. The named defendants have highlighted three [3] key issues. The issues are: Whether the applicants [plaintiffs are entitled to the suit properties on the basis of adverse possession; whether the plaintiff have proved the plea of fraud as pleaded in the counter claim; and whether the defendants have proved their claim *vide* Meru ELC E003 of 2025 [formerly Meru CMELC No. E092 of 2023]. 38. The 3rd defendant to the counter claim filed written submissions dated the 13.07.2026. The named 3rd defendant to the counter claim has highlighted one [1] key issue. The issue is: Whether the counter claimers have proved their case as against the 3rd defendant to the counter claim or otherwise. 39. Having reviewed the pleadings filed by /on behalf of the parties; the evidence tendered [both oral and documentary]; and the upon consideration of the written submissions on record, four [4] key issues emerge for determination. The issues are: Whether the plaintiffs have proved/established their claim as pertains to adverse possession or otherwise; whether the plaintiffs have proved their claim on the basis of fraud to the requisite standard; whether the defendants/counter claimers have proved their entitlement to and in respect of the suit properties; and what reliefs [if any] ought to issue. 40. Regarding the first issue, it is imperative to underscore that whosoever seeks to prove the claim of adverse possession, the plaintiffs not excepted, is obligated to demonstrate certain key elements. The key elements that underpin the claim for adverse possession, have been distilled and firmed out in a plethora of decisions. 41. In the case of Richard **Wefwafwa Songoi v Ben Munyifwa Songoi [2020] KECA 942 (KLR),** the Court of Appeal reiterated the position in the following terms: **39. *In Wambugu –v- Njuguna, (1983) KLR 173, this Court held that adverse possession contemplates two concepts: possession and discontinuance of possession. It was further held that the proper way of assessing proof of adverse possession is 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 or she has been in possession for the requisite number of years.*** ***40. A person who claims adverse possession must inter alia show:*** ***(a) on what date he came into possession.*** ***(b) what was the nature of his possession?*** ***(c) whether the fact of his possession was known to the other party.*** ***(d) for how long his possession has continued and*** ***(e) that the possession was open and undisturbed for the requisite 12 years.*** 1. What constitutes adverse possession and ingredients that must be proven was also spoken to and illuminated in the case of **Lewa v Mwagandi [2015] KECA 532 (KLR).** 2. The court stated thus: **“*Adverse Possession is essentially a situation where a person takes Possession of land, asserts rights over it and the person having title to it omits or neglects to take a action against such person in assertion of his title for a certain period, in Kenya 12 years.”*** 1. Have the plaintiffs proved adverse possession? To begin with, it is trite and established that he /she who seeks to canvass the plea of adverse possession, must first and foremost acknowledge that the land in question lawfully belongs to the third party, against whom the claim has been raised. Simply put, the adverse claimer must concede the title of the third party. 2. Where adverse claimer is contesting or challenging the legality of the title of the third party, like in the instant case, the plea of adverse possession dissipates into thin air. One cannot be heard to impugn the title the title of the third party and at the same time, espouse the plea of adverse possession. Such kind of a scenario denotes that the adverse claimer is speaking from both sides of the mouth. The Scottish would state that such kind of a scenario amounts to approbating and reprobating at the same time. 3. The legal position that one cannot be heard to challenge the title of the third party and still maintain the plea of adverse possession, was highlighted by the Court of Appeal in the case of **Catherine Koriko & 3 others v Evaline Rosa [2020] KECA 534 (KLR).** The court stated as hereunder: “In **Haro Yonda Juaje** **–v- Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR**it was stated: **[29] One cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. It does not lie in the mouth of a claimant to aver that the title held by the registered proprietor was fraudulently acquired and then claim the same parcel of land under the doctrine of adverse possession. If the Plaintiff's averment is that the title which was issued to the Defendant was fraudulently acquired, then his cause of action would be for the rectification of title by cancellation pursuant to the provisions of Section 143 of the Registered Land Act and not adverse possession. He cannot use the doctrine of adverse possession to go around the decision of the Minister.** 1. The court went further and stated thus: **“A claim for adverse possession is inconsistent with the claim for being a beneficiary of the estate of a deceased person. In the original suit, the appellants did not concede that indeed the respondent was the true owner of the suit property.”** 1. With regard to the instant matter, the plaintiffs are on record contending that plot number 709, which birthed the various titles which underpins the plea of adverse possession belonged to Dorcas Ciaembu [deceased]. It was contended that the said plot was adjudicated in favor of the said Dorcas. 2. To this end, the plaintiffs’ possession is to the effect that the plot in question lawfully belongs to Dorcas Ciaembu [ deceased], who is said to have been the mother of the plaintiffs. 3. This is what PW1 stated during cross examination: “***The land had been given to my mother, namely; Dorcas Ciaembu [deceased]. I have not brought any evidence that the land was adjudicated/registered in the name of my mother. Referred to Exhibit P2, the witness states that the document that I lodged with the DLASO. The complaint was in respect of a request so that we were to be shown our land. We wanted to be allocated land. We were seeking that the DLASO to come and confirm whether where we were staying belongs to us.”*** 1. My understanding of the testimony of PW1 and the excerpt reproduced above, drives me to the conclusion that the Plaintiffs are laying a claim to plot number 709 as of right. The plaintiffs are effectively, not admitting that the suit property belongs to the counter claimers. 2. I am afraid that the plaintiff cannot maintain a plea of adverse possession in the circumstances. 3. Other than the foregoing, the plaintiffs are also on record contending that plot number 709 was illegally and unlawfully adjudicated in the name of Murithi Wanderi [now deceased]. Furthermore, it has been contended that upon the fraudulent adjudication of the suit property in the name of Murithii Wanderi [deceased], same illegally subdivided the plot, culminating into the creation of the suit properties. 4. PW1 testified that plot number 709 belonged to Dorcas Ciaembu [now deceased]. 5. She further went forward and averred thus: ***“The crux/substratum of our counter claim is that the parcel of land were illegally/fraudulently subdivided. I do not have any document to show that the original parcel of land, which was subdivided, ever belonged to us or our parents.”*** 1. What I hear the plaintiffs to be positing is that the adjudication and demarcation of plot number 709 in the name of Murithii Wanderi [deceased] was fraudulent. The question that does arise is whether the plaintiff can canvass the plea of fraud alongside the plea of adverse possession? 2. It is settled that the plea of adverse possession is mutually inconsistent with and antithetical to, fraud. The two cannot be canvassed or better still, be driven in the same cause, nay, vehicle. 3. In the case of **Wanyama & another v Nyuki & 8 others (Registered Trustees of Methodist Church in Kenya) [2026] KECA 261 (KLR)** , the Court of Appeal addressed the obtaining legal position in the following manner: ***“In the same vein, the ELC at Nairobi in*Njue vs. Matiabe & 3 others*(2023) KEELC 17361 (KLR) rightly emphasised that:“The moment the person claiming adverse possession contests and impugns the validity of the registered proprietors title, the claim for adverse possession is defeated and thus becomes legally untenable. In such a situation, the claimant is at liberty to pursue a cause of action for fraud or better still, trust, which causes of action are antithetical to and cannot co-exist with a claim for adverse possession.”*** 1. To my mind, the moment the plaintiffs contends that the titles of the suit property were procured and obtained by fraud, same [plaintiffs] lost their leverage as pertains to adverse possession. 2. The last aspect in determining whether or not the plaintiffs proved the plea of adverse possession touches on and concerns the quality of evidence that was tendered. It was incumbent upon the plaintiffs to demonstrate when same entered onto the suit properties and which of the suit properties, was under their occupation. 3. Despite the pertinent requirement to tender such evidence, it is on record that the plaintiffs were requesting the DLASO to visit the locus in quo and to show them [plaintiffs] whether where they were occupying is their land. The bottom line is that the plaintiffs were not sure of the correct identity of the land [Title], which was under their occupation. 4. Moreover, PW2 [Rose Mukira M’Ringera] testified and stated thus: “*The land number 709 is being cultivated by the plaintiffs. The land has a house/structure thereon. It is the plaintiffs who are on the land.* ***Some of the plaintiffs left the land to go while the others remained. The plaintiffs left in 1992.”*** 1. It is not clear, which of the plaintiffs left the suit property. Equally, it is not clear, which of the plaintiffs remained on the land. What is clear, is that all the plaintiffs are before the court and same are seeking adverse possession. I wish to underscore that the evidence tendered falls short of demonstrating the plea of adverse possession. Instructively, proof of occupation/possession and the circumstances, surrounding the occupation are critical [see **Kweyu v Omuto [1990] KECA 63 (KLR**)]. 2. Next is the issue of fraud. The plaintiffs had filed a counter claim *vide* ELC No. E003 of 2025 [formerly Meru CMELC No. E092 of 2023]. The plaintiffs had contended the plot number 709 Ruiri/Rwarera had been demarcated in favour of Dorcas Ciaembu [deceased]. However, it was contended that the adjudication of the said plot was thereafter interfered with and the land was adjudicated in favor of Murithii Wanderi [deceased]. 3. In addition, it was contended that after plot number 709 was interfered with, the said plot was subdivided, culminating into the suit properties. To this end, the plaintiffs sought to impeach the registration of the suit properties in favor of the counter claimers. 1. Be that as it may, during the hearing, PW1 conceded that same had neither tendered any document to show that the suit property was ever adjudicated in favour of Dorcas Ciaembu [Deceased]. In addition, the same witness also averred that she has not tendered any evidence to show how plot number was subdivided. 2. Equally, PW1 also conceded that same had not tendered any evidence to show the acreage of plot number 709 which was alleged to have been adjudicated in favour of Dorcas Ciaembu. Suffice it to add that the evidence of PW1 was supported PW2, who also conceded that same had not tendered any evidence to demonstrate that plot number 709, had previously been registered in the name of Dorcas Ciaembu [deceased]. 3. To my mind, the totality of the evidence that was placed before the court, falls short of proving fraud. It is not lost on me that proof of fraud requires cogent, credible, believable and plausible evidence. Fraud cannot be left to inference. 4. In the case of **Kiarie & 2 others v Magera [2018] KECA 467 (KLR)**, the Court of Appeal reiterated and reaffirmed the position thus: **“*The law is clear and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” [Emphasis added].The same procedure goes for allegations of misrepresentation and illegality. See Order 2 Rule 4 of the Civil Procedure Rules.*** ***26.As regards the standard of proof, this Court in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR expressed itself as follows;-“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”...In cases where fraud is alleged, it is not enough to simply infer fraud from* *the facts."*** 1. I now wish to deal with the third issue. The third issue concerns whether the counter claimers tendered evidence to prove their title or entitlement to the suit properties. To begin with DW1 and DW2 tendered evidence to show that what now constitutes the suit properties, was previously plot number 709 Ruiri/Rwarera Adjudication section. 2. Additionally, DW1 posited that plot number 709 was thereafter subdivided by the adjudicated owner [Murithii Wanderi – deceased] and thereafter the various plots were created. The witness further testified that there were no objections that were filed to challenge the adjudication in favour of Murithii Wanderi. 3. Furthermore, the witness testified that following the conclusion of the adjudication and demarcation process, the suit properties were duly registered; and thereafter certificate of titles, were issued. In particular, both DW1 and DW2, referenced their certificates of title. 4. I beg to state that the evidence that was tendered by both DW1 and DW2, were neither challenged nor controverted. There was no blemish shown to impact on their titles. In this regard, it is my finding and holding that the counter claimers have duly proved their claim [see **sections 24 and 25 of the land registration Act]**. 5. Moving on to the question of reliefs, I wish to point out that both the plaintiffs vide ELC OS E017 of 2024 and the counter claimers vide ELC E003 of 2025, have raised claims over the suit properties. It is therefore apposite to deal with the claims sequentially. 6. Starting with the claims by the plaintiffs. I beg to state that the plaintiffs had canvassed the plea of adverse possession. However, while dealing with issue number one, I have found and held that the plea of adverse possession, was never proven. In any event, the plaintiffs could not have proven adverse possession taking into account the circumstances of the matter. 7. The plaintiffs also sought to impugn the certificates of title in respect on account of fraud. However, there is no gainsaying that the plea of fraud was not proven. In this regard, the revocation of the title of the suit properties, on account of fraud is not tenable. 8. Regarding the claims by the counter claimers, I have found and held that the counter claimers [plaintiffs vide ELC E003 of 2025], have indeed proved the root of their title. In this regard, there is no gainsaying that the counter claimers are entitled to the reliefs sought. 1. Be that as it may, it is important to highlight the claim of general damages. I have found and held that the counter claimers are indeed the registered owners of the suit properties. However, the suit properties have been trespassed upon by the plaintiffs in respect of ELC OS E017 of 2024; and the 3rd defendant to the counter claim [John Gikunda]. 2. On the basis of trespass, I hold the view that the counter claimers are entitled to recompense. Considering the law as pertains to award of general damages on account of trespass, I am minded to do hereby award the sum of Kshs. One million only [Kshs.1,000,000/= only] to each of the plaintiffs *vide* ELC E003 of 2025 [counter claimers]. The award of damages shall be borne by the plaintiffs in ELC OS E017 of 2024; and the 3rd defendant to the counter claim [John Gikunda] jointly and or severally. **Final orders:** 1. Flowing from the foregoing analysis, the final orders that commend themselves to the court: 2. ***The Plaintiffs suit vide ELC OS E017 of 2024 be and is hereby dismissed.*** 3. ***The Counter Claim vide ELC E003 of 2025 [formerly Meru CMELC E092 of 2023] and which essentially was filed by the Plaintiffs in ELC OS E017 of 2024, be and is hereby dismissed.*** 4. ***That the Plaintiffs’ suit vide ELC E003 of 2025 [formerly Meru CMELC E092 of 2023] be and is hereby allowed.*** 5. ***Judgment be and is hereby entered in favour of the Plaintiffs [Julius Karimi Wamiti; Francis Mwiti Wanderi; Kennedy Murithi Wanderi; and Geoffrey Kinoti Kirigia] as hereunder:*** 6. ***A declaration be and is hereby issued that the Plaintiffs are the registered proprietors of LR Numbers Buuri/Ruiri/Rwarera/709, 4886,3162 and 4889.*** 7. ***The defendants at the foot of the plaint dated 11.09.2023, be and are hereby ordered to vacate the suit property and hand over vacant possession within 90 days from the date hereof.*** 8. ***In default by the named plaintiffs to comply with clause [b] above, the plaintiffs vide ELC E003 of 2025 [formerly Meru CMELC E092 of 2023] shall be at liberty to evict the said defendants.*** 9. ***In the event of such eviction, the costs/expenses incurred, shall be certified by the deputy registrar and shall thereafter be recovered as part of costs.*** 10. ***There be and is hereby granted an order of permanent injunction to restrain the defendants at the foot of ELC No. E003 of 2025, from re-entering upon, remaining on, cultivating, building on and or in any other way interfering with the plaintiffs’ rights to the suit properties.*** 11. ***General damages be and is hereby awarded in the sum of Kshs. 1,000,000/= only, to each of the plaintiffs in ELC E003 of 2025 [Formerly Meru CM ELC E092 of 2023].*** 12. ***The award of general damages in terms of clause [f] shall accrue interest [14%] per annum from the date of judgment.*** 13. ***The award of damages in terms of [f] shall be borne jointly and or severally by the plaintiffs in ELC OS E017 of 2024 and the 3rd defendant to the counter claim [John Gikunda].*** 14. ***The Plaintiffs claim as against the 1st and 2nd defendant at the foot of the Plaint dated 11.09.2023 be and is hereby dismissed.*** 15. ***The Costs of the originating summons be and are hereby awarded to the defendants therein.*** 16. ***The Costs of the suit [ELC E003 of 2025] be and are hereby awarded to the plaintiffs therein.*** 17. ***The Costs of the counter claim vide ELC E003 of 2025, be and are awarded to the Plaintiffs in the said suit [defendants to the counter claim].*** 18. ***The Costs in terms clauses [v], [vi], and [vii] shall be agreed upon and in default, be taxed in the conventional manner.*** 19. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 04TH DAY OF AUGUST, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo Mr. Mokua Obira for the Plaintiffs Ms. Otieno A for the Defendants/Counter Claimers. Ms. Miranda for the 1st and 2nd defendant at the foot ELC E003 of 2025 [1st and 2nd defendants to the counter claim] Mr. Muriira for 3rd defendant in ELC E003 of 2025 [3rd defendant to the counter claim]