https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5348

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI** **ELC NO. 472 OF 2014** **WILSON MUGUKU GITHINJI** **FRANCIS WAHOME GITHINJI** **MARGARET WANJIRU GITHINJI ...........................................PLAINTIFFS** **VERSUS** **JAMES WAHOME GAKURU.....................................................DEFENDANT** **JUDGMENT** 1. The suit herein was instituted by Originating Summons dated 21st June 2011, in which the Plaintiffs herein claimed to have acquired the suit land, LR Kirimukuyu/Thiu/477, by adverse possession. 2. The Plaintiffs’ joint affidavit supports this, as they deposed that they have been in uninterrupted occupation of the suit parcel for over 50 years to the exclusion of the Defendant herein, who has been the registered proprietor of the suit parcel since 11th January 1984. 3. That they have, over the years, extensively developed the land parcel by building permanent houses, planting about 500 coffee trees and other trees, Napier grass, and food crops, and by fencing the land; thus, their case is that they have dispossessed the Defendant of the suit property. 4. It was also deposed that save for **Nyeri Civil Suit No. CMCC 803 of 2004**, **Karatina SRMCC 169 of 2004** and **Nyeri HCCC 41 of 2011**, there is no other suit pending between the parties over the same subject matter. **The Defendant’s case** 1. The Defendant/Respondent herein swore an affidavit in response to the originating summons herein. He deposed that a prohibitory order was in place in relation to **Nyeri HCCC Case No. 93 of 1985**, and that he had not contravened it. He further deposed that the said suit has since been determined by dismissal for want of prosecution on the 9th of October 2011. 2. In relation to the suit land, L.R Kirimukuyu/Thiu/477, the Defendant deposed that the said land belongs to him, having acquired it in the year 1984 through auction. 3. That immediately upon purchase of the suit land, the Defendant states that he took possession of all the portions not in actual use by the family of the previous owner, Githinji Guare, and planted coffee and trees and built temporary houses for his workers. 4. He contended that since the suit land was registered in his name in 1984, it has been the subject of court cases, and therefore the plaintiffs have not had uninterrupted occupation for 12 years. 5. He also contended that the Applicants do not reside nor cultivate on the suit land as they left in the year 2002, after realizing that their father had lost the case against him and that their father and one of their brothers had lost the case against him. 6. The Defendant asserts that he is in exclusive occupation and use of the said land. **The hearing of the suit** 1. The hearing of the suit began on 18 March 2024, when PW 1, the 1st Plaintiff herein, adopted his statement and the documents filed on 4 May 2015 as evidence. He stated to the Court that he and his siblings live on the suit land and have been there since they were born. He further stated that they all have their houses on the suit land, plant maize and arrowroot on the suit land, and keep 4 dairy cows. 2. In addition, they asserted that their father and 6 other relatives are buried on the suit land and that they have remained on the land. 3. On cross-examination, PW 1 stated that he did not know how the Defendant acquired the suit land and that they only learned of his registration when he came and destroyed the land, claiming that he had bought it from the Bank. 4. PW 1 further stated that the case between his father, the original registered owner, Stephen Githinji Guare, and the Defendant was filed in 1986, and that the Defendant opposed the sale. That the case ended when his father died in 2004. When their father died, he stated that the Plaintiff tried to block them from burying him on their land, but they obtained a court order in Karatina allowing them to bury him on the suit land. 5. The Defence case was heard on 3 February 2026, and DW 1, the Defendant herein, also gave his evidence and adopted his witness statement dated 4 July 2011 and the bundle of documents as his evidence in chief. 6. In his witness statement, he stated that on or around the year 1984 he attended an auction in Karatina town, where the suit property, belonging to Githinji Guare, came up for sale, and that he was the highest bidder. He further stated that upon paying the auction price, the suit land was transferred to him. He entered the land, constructed temporary houses for his workers, and cultivated portions of it. 7. The previous owner, Githinji Guare, instituted **Nyeri HCCC No. 93 of 1985**, challenging the sale. The suit was dismissed for want of prosecution on 9.10.2001. The Defendant stated that he could not have evicted the previous owner and his family during the pendency of the case due to the prohibitory order. 8. After Githinji Guare died in 2004, the Defendant stated that he filed Nyeri CMCC No. 803 of 2004, seeking to evict the Plaintiffs herein and to prevent them from burying their father on his land. He further stated that he was sued in **Karatina SRMCC 169 of 2004** by Lilian Wangechi, a daughter-in-law of the late Githinji Guare, and that he filed a counterclaim to evict the Plaintiffs and their family members. Thus, he states that the Plaintiffs have not had uninterrupted occupation. 9. That in the year 2008, when he started executing against the said Lilian Wangechi and the rest of the family, they all vacated the land on different days, and he has been in peaceful occupation. In 2010, the Defendant stated that the Plaintiffs and their brother, one Ephantus Kuria Githinji, attempted to return to his land, and he was jailed when the Defendant lodged a complaint in Karatina SRM Criminal Case No. 705 of 2010. 10. The Defendant stated to the Court that he purchased the suit land at an auction, which land belonged to the Plaintiffs’ father. That they had several cases with the Plaintiffs’ father, which they have lost, as they were dismissed. 11. The Defendant also stated that he is in possession of the suit property, that he is tilling the land, and that he bought the land together with the permanent house, and prayed that the suit be dismissed. 12. DW 2, Joseph Mugo, also gave his testimony and stated that he is employed by the Defendant herein, DW1. He adopted his witness statement dated 4th July 2011 as his evidence-in-chief. 13. He had stated therein that between 1984 and 1985 the Defendant had engaged him to fence and construct some temporary houses on the suit land. He also stated that on or around 2002 the family of Githinji Guare left, leaving the land with just one of their brothers, who also left. 14. The parties filed their respective written submissions, which the Court has duly read and considered. **Analysis and Determination.** 1. The Plaintiffs herein claim to have acquired rights of adverse possession over the suit property, known as LR Kirimukuyu/Thiu/477, which is registered in the Defendant’s name. 2. Section 7 of the Limitation of Actions Act provides that: ***“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”*** 1. The procedure for making such an application is set out in Order 37, rule 7 of the Civil Procedure Rules, which provides that: ***“An application under section 38 of the Limitation of Actions Act shall be made by originating summons.*** ***(2) The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.”*** 1. In the matter of **Mtana Lewa v Kahindi Ngala Mwagandi (Civil Appeal 56 of 2014) [2015] KECA 532 (KLR)**, the Court of Appeal articulated the definition of adverse possession as follows: ***“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. The Plaintiffs claim that they have been in occupation of the suit property to the exclusion of the Defendant herein since birth, and that the Defendant has never lived in or been in possession of the suit property. 2. The Defendant, on the other hand, claims that he is the one on the suit land. From the facts of the case, the Defendant became the registered owner on the 11th of January 1984, as per the Certificate of Official Search, which is the first document in his list. 3. It is trite law that the rights in adverse possession begin to accrue when possession is taken. The Court of Appeal, in the case of **Karuntimi Raiji v M’makinya M’itunga [2013] eKLR**, held that: ***“There are two issues relevant to the claim of adverse possession in this matter. First is the date from which the 12 years should be calculated; second, did the respondent have a peaceful, uninterrupted occupation based on a claim of right and without consent of the appellant"*** ***22. The answer to the first question is provided by the case of Francis Gitonga Macharia – v Muiruri Waithaka, Civil Appeal No. 110 of 1997, where this Court stated that the limitation period for purposes of adverse possession only starts running after registration of the land in the name of the respondent. In this case, the appellant was registered as proprietor of the suit property on 22nd March, 1973; we find that the claim for adverse possession against the appellant starts to run from this date and not 1954. For avoidance of doubt, we reiterate that the claim for overriding interest of the respondent in relation to the suit property started to run from 1954 and this overriding interest was in existence and protected under Section 30 of the RLA as at 22nd March, 1973 when the appellant became the registered proprietor of the suit property.”*** 1. On 11 January 1984, the Defendant was registered as the proprietor of the suit property. The Plaintiffs claim they settled on that land and took possession earlier; the next question is whether their possession was sufficiently continuous and uninterrupted to warrant invoking the doctrine of adverse possession. 2. It is also trite law that adverse possession is interrupted the moment a registered owner asserts their rights over the property in question. The Court of Appeal in the case of **Mwangi Githu v Livingstone Ndeete [1980] KECA 35 (KLR)** held that: ***“Time ceases to run under the Limitation of Actions Act either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land; see Cheshire’s Modern Law of Real Property, 11th edition at p 894. In my view the giving of notice to quit cannot be an effective assertion of right for the purpose of stopping the running of time under the Limitation of Actions Act.”*** 1. The Defendant has contended that he entered the land immediately after he bought it and brought in DW 2 to testify that he fenced the land for the Defendant in 1984. 2. Document 2 of the Defendant’s compilation of documents includes the proceedings of the **Nyeri High Court Civil Case No. 93 of 1985**, in which the former owner of the disputed land, Githinji Guare, initiated legal action against the Plaintiff herein and KCB Ltd. The records show that on 18th December 2001, the case was dismissed for lack of prosecution. The Defendant averred that he was unable to evict the Plaintiffs during the pendency of the matter owing to the prohibitory order issued in the proceedings. 3. It is then my view that fencing the suit land and defending the Nyeri **HCCC Case No. 93 of 1985** were sufficient assertions of the Defendant’s proprietary rights. He did not allow the Plaintiffs to live on the suit land without asserting his rights therein. 4. Further, there were other cases concerning the suit land, specifically one filed by the Defendant in **Nyeri Chief Magistrates Court Case No. 803 of 2004**, in which he asserted his proprietary rights over the suit land. 5. Adverse possession must be continuous, uninterrupted, and unbroken. The Court of Appeal in **Pavey & 2 others v Njoroge & another (Civil Appeal 217 of 2005) [2011] KECA 342 (KLR) (11 March 2011) (Judgment)** held that: ***“Whereas as established by Shields, J. the appellant took possession in January 1977 it was necessary for him to have established that the possession was adequate and continuous and that there was dispossession of the registered owner. The appellants failed to do so yet this was the heart of their claim. Thus, to prove title by adverse possession it was not sufficient to show that some acts of adverse possession had been committed. It was also necessary to prove that the possession claimed was adequate, in continuity, in publicity and in extent and that it was adverse to the registered owner.”*** 1. In my considered view, the constant litigation back-and-forth between the Defendant, the Plaintiffs and their kin makes it clear that the Plaintiffs' possession of the suit land has not been continuous and diminishes the applicability of the doctrine of adverse possession. 2. Consequently, the Plaintiffs' suit is hereby dismissed with costs. **Dated, signed, and delivered virtually at Nyeri on this 19th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Mathaiya for the Plaintiffs** **Mr. Kamwenji for the Defendant** **Denis - Court Assistant**