Mwatando Mwagambo Wasanga v Ngaruko Mwangome & 10 others [2014] KEELC 456 (KLR)

The Plaintiff's own depositions showed the Defendants never took possession of the land and that he claimed the titles were fraudulently acquired. On the court's earlier holding in Haro Yonda Juaje, a claimant unaware of registration lacks animus possidendi; possession of ancestral land from birth does not found adverse possession. The proper cause of action for fraudulent titles would be rectification under Section 143 of the Registered Land Act, so the adverse possession claim had no chance of success.

The 1st, 2nd, 4th, 5th and 6th Defendants were said to be dead and there was no affidavit of service proving they were served; a suit cannot be filed against a dead person. Extracts of title for parcels 368 and 313 were not annexed as required under Order 37 Rule 7(2), and the title to 313 was shown in the name of a non-party. Injunction could only proceed against the 3rd and 7th Defendants.

Applying Wambugu v Njuguna, the test is whether the title holder has been dispossessed or has discontinued possession for the statutory period, not merely whether the claimant was in possession. The Plaintiff's own deposition that the Defendants never took possession meant there was no dispossession or discontinuance by the true owner, so time under Section 13 of the Limitation of Actions Act never began to run in his favour.