Njuguna v Josenga Company Ltd (Land Case E026 of 2023) [2025] KEELC 732 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's adverse possession and fraud claims, ordered him and his son evicted, and awarded the company its costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant's title to parcel Nyandarua/Ndemi/2021 was tainted with fraud and liable to cancellation
No fraud was proved against the defendant; it was a purchaser for value and the alleged fraud lay with the SFT and the Wanyekis, who were not joined.
Section 26(1) of the Land Registration Act renders a certificate of title prima facie and indefeasible, challengeable only on fraud or misrepresentation to which the proprietor is proved to be a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The plaintiff relied only on the fraud limb against predecessors in title, pleaded no particulars against the company, and did not invoke Section 26(1)(b). The key actors, the SFT and the Wanyekis, were not joined, making effective proof impossible.
Whether the plaintiff proved adverse possession of parcel 2021
The claim failed because the plaintiff's possession was interrupted by the tribunal award adopted as judgment by the Magistrate's Court on 11.08.2004; time began running afresh on 11.08.2016 and only about 2 years and 6 months had elapsed when the OS was filed.
Relying on Kasuve v Mwaani Investments and Chevron v Harrison Charo Wa Shutu, the claimant must prove open, exclusive and uninterrupted possession for 12 years. Although the plaintiff was in possession, litigation by Esther culminating in a tribunal award adopted as judgment on 11.08.2004 constituted a legal interruption. Following Githu v Ndeete, possession is interrupted by legal proceedings for recovery of land. Upon expiry of the 12-year limitation period for executing the decree, time ran afresh, so the OS filed on 01.03.2019 was premature.
Whether the belated challenge to the jurisdiction of the tribunal could be entertained
The jurisdiction of the tribunal could not be belatedly questioned because its award was adopted as a judgment of the subordinate court and never challenged on appeal.
The tribunal award was adopted as a judgment of the Magistrate's Court at Nyahururu and was never appealed. A party cannot, years later in a different suit, collaterally attack the jurisdiction of a tribunal whose award has been adopted and left unchallenged.
Whether the defendant was entitled to the reliefs sought in its suit
The defendant was entitled to the reliefs sought in its suit, including an eviction order and injunction, but not mesne profits for want of evidence.
The defendant's title having been vindicated and the plaintiff's adverse possession claim having failed, the defendant proved its claim on a balance of probabilities and was entitled to recovery of the parcel, eviction and injunction. However, no evidence was led on mesne profits, so that head of relief was refused.
Legal principles established
#- A certificate of title is only impeachable where the title holder is shown to have participated in or been privy to fraud or misrepresentation; fraud by a predecessor in title cannot be transferred to a purchaser for value without notice.
- A claimant's adverse possession is interrupted where a landowner makes peaceable and effective entry or institutes legal proceedings for recovery of the land, including proceedings resulting in an adopted decree.
- For limitation purposes under Section 4(4) of the Limitation of Actions Act, time for execution of a decree is reckoned from the date of adoption of the award as judgment, and upon expiry of the limitation period time for adverse possession begins running afresh.
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court, for good reason, directs otherwise.
- An allocating authority whose sub-division and re-allocation is impugned as fraudulent ought to be joined as a party to the suit.
Court orders
#- 1.The plaintiff's originating summons dated 01.03.2019 is dismissed in its entirety.
- 2.Judgment entered in favour of the defendant company: an eviction order directing the plaintiff Robertson Njoroge Njuguna and his son Kahungura Njoroge, their family members, servants, agents and persons claiming under them to vacate Title No. Nyandarua/Ndemi/2021 forthwith, failing which they shall be forcibly evicted.
- 3.An injunction restraining the plaintiff and his son Kahungura Njoroge from undertaking any further construction or any other activities on Title No. Nyandarua/Ndemi/2021.
- 4.The defendant Josenga Company Ltd is awarded costs of the consolidated suits.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; originating summons under Section 26(1) of the Land Registration Act, 2012 and Section 38(1) of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna v Josenga Company Ltd (Land Case E026 of 2023) [2025] KEELC 732 (KLR)", Case Analysis (2025). Nyahururu ELC No. 10 of 2019 (OS), consolidated with Nyahururu ELC No. 311 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/732/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.