Julius Ndundi Thethe & 2 others v Najmudin Noorali Mohmmedali (as Legal Representative of the Estate of Mohammedali Essajee Bhaijee and the Estate of Noorali M.E. Bhaijee) & another [2019] KEELC 1402 (KLR)

The court found as undisputed that the Plaintiffs' father purchased the suit land in 1975, took possession immediately, settled his entire family on it, and that the family has lived there continuously since, with homesteads, wells, livestock and burial of the patriarch on the land. The Defendants never filed a Replying Affidavit and the suits proceeded undefended. Possession was adverse to the title holders for well over the statutory twelve years, and under Section 38 of the Limitation of Actions Act the Plaintiffs were entitled to be registered as proprietors.

The Plaintiffs in the second suit framed their claim as successive adverse possession from 1989, when the purchaser died and possession passed involuntarily to his children. The court reasoned that whether time is reckoned from 1975, when the father purchased and took adverse possession, or from 1989 upon his involuntary dispossession by death, the Plaintiffs had occupied continuously and without the title holder's permission for at least twelve years in either scenario, so both suits were allowed.

The Plaintiffs deponed, and the court accepted, that the late Kabaruku Ndundi Thethe became owner of the suit land upon paying the full purchase price and taking possession, whereupon the Vendors became trustees holding the title for the benefit of the purchaser. Consequently, the registered owners (or their estates) are mere trustees, and the beneficial fee simple vests in the Estate of Kabaruku Ndundi Thethe.