Njoki v Pussy (Environment and Land Appeal E006 of 2022) [2023] KEELC 945 (KLR)

The learned magistrate found the photographs undated. On inspection, one photograph bore a November 15, 2005 stamp, contradicting the deponent's claim he took them in February 2006. The photographer was not called to testify on how the digital evidence was generated, stored and its integrity maintained from 2006 to 2022, as required by section 78A(3)(a) of the Evidence Act. The court therefore agreed the photographs deserved little weight.

Rates demands were in the name of George Sumare and payments traceable only from 2015. The electricity deposit and water ledger were in the name of John Muriithi Nduhiu with no evidence linking him to the appellant or the plot. The neighbour Tapato ole Molo testified the appellant occupied the land from 2013, which the court found believable, and the presence of the late George's house until 2009 made occupation in 2005 implausible.

Sections 9(2) and 16 deem the administrator to claim from the date of death, so the respondent could sue from 2003. But the claimant's time runs only from possession known to the owner. Since section 45 prohibits intermeddling with a deceased's free property, taking possession of an unadministered estate's land is an offence, so a claim founded on such occupation cannot easily be sustained unless the claimant was on the land before death with the owner's knowledge.

Even on the court's finding that possession began in 2013 and knowledge thereof was acquired by the respondent in 2013, only seven years had elapsed by February 2020 when the respondent filed suit. The statutory period of 12 years under section 7 of the Limitation of Actions Act had therefore not run, and the counterclaim for adverse possession failed.