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ELCPartially AllowedOriginating Summons dated 20th May 2021· [2025] KEELC 4041 (KLR)

Gitonga (Suing an Administrator of the estate of the Late Gideon Gitonga Nkaabu - Deceased) & 3 others v Kinyua (Sued as the Administratrix of the Estate of the Late Dionysius Muturuchiu Kinyua - Deceased) (Environment & Land Case E016 of 2021) [2025] KEELC 4041 (KLR)

Environment and Land Court
27 February 2025
CYC. K. Yano
5,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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An Eldoret land court dismissed a family's 32-year adverse possession claim, ordered them to vacate within 90 days, and awarded the titleholder costs.

What this practically means

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Executive summary

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The plaintiffs, by an Originating Summons dated 20th May 2021, claimed the whole of parcel No. Abogeta/Lower Kiungone/236 by adverse possession, asserting open, continuous and uninterrupted occupation for over 32 years since registration of the land in the name of the defendant's late father on 24/4/1989. They alleged the late Dionysius Muturuchiu Kinyua had fraudulently transferred the entire land to himself when he was only entitled to one acre, and sought registration as proprietors, rectification of the register and costs. The defendant filed a replying affidavit and counter-claim contending that her late father lawfully acquired and possessed the land, that the plaintiffs' occupation was interrupted by Meru Succession Cause No. 166 of 1997 (in which Mabeya J on 6/12/2018 revoked the 4th plaintiff's grant, cancelled the subdivisions and ordered the land to revert to the original registration), and sought eviction and a permanent injunction. The court framed three issues: whether adverse possession was proved, whether the plaintiffs were entitled to the reliefs sought, and whether the defendant was entitled to the counter-claim orders. The court applied sections 7, 13, 17 and 38 of the Limitation of Actions Act and s.28(h) of the Land Registration Act, and held that the plaintiffs failed to demonstrate when their possession became adverse and when the limitation period crystallised, especially as the land was for part of the period registered in their late father's name after the 1999 cancellation order was quashed by certiorari. The court also held that a claimant in adverse possession cannot simultaneously challenge the title holder's title on fraud. The Originating Summons was dismissed with costs and the counter-claim was allowed; the plaintiffs were given 90 days to vacate, failing which eviction could proceed without further reference to the court. The defendant was awarded costs of the suit and counter-claim.

Key legal issues

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01

Whether the plaintiffs proved adverse possession of L.R. No. Abogeta/Lower Kiungone/236

Holding

The claim failed. The land was at various times registered in the plaintiffs' late father's name following subdivisions (parcels 874 and 875), and although a 1999 order cancelled those registrations, it was quashed by certiorari in 2001; the Mabeya J decision revoking the grant and restoring the original registration came only on 6/12/2018. The plaintiffs could not show when their possession became adverse and when the 12-year period began to run.

Reasoning

The court examined the green cards for parcels 236, 874 and 875 and the succession cause judgment. The subdivisions in favour of the plaintiffs' late father were effective after the 1999 order was quashed in 2001. Part of the limitation period therefore ran while the plaintiffs' father was himself the registered proprietor, which is incompatible with adverse possession. The plaintiffs also failed to prove the acts of possession and the intention to dispossess to the required standard, and could not challenge the defendant's title on fraud while claiming prescriptive rights.

p. 9
02

Whether the defendant was entitled to the orders in her counter-claim

Holding

Yes. The defendant proved her counter-claim for eviction and permanent injunction, having relied on the unchallenged judgment in Meru Succession Cause No. 166 of 1997 restoring the land to her late father's name, and the plaintiffs having failed to prove the alleged fraud.

Reasoning

The court found no evidence that the transfer and registration in the name of the defendant's late father was fraudulent, and no indication that the succession cause judgment had been set aside, varied or reviewed. Having held that the plaintiffs' adverse possession claim failed, the court found no justifiable reason for their continued possession and allowed the counter-claim as sought.

p. 10

Legal principles established

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  • A claimant under the doctrine of adverse possession must prove peaceful, open and continuous possession for the statutory period of 12 years, adverse to the title of the owner and with intention to dispossess, and not by force, stealth or licence
  • A claimant in adverse possession cannot simultaneously challenge the title holder's title on grounds of fraud while seeking to dispossess him of that title
  • The plaintiff bears the onus of establishing the date possession was taken, its nature and duration, whether it was with intention to dispossess, and whether it was open and uninterrupted for the 12-year statutory period

Court orders

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  1. 1.The Originating Summons dated 20th May 2021 is dismissed with costs to the defendant
  2. 2.The Defendant's counter-claim is allowed as sought
  3. 3.The plaintiffs are directed to vacate the suit land within 90 days from the date of the judgment
  4. 4.In default of vacating, the defendant/counter-claimer shall be at liberty to evict them without further reference to the court
  5. 5.The defendant is awarded costs of the suit and the counter-claim

Authorities

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Legislation

  • Limitation of Actions Act, Cap. 22section 7
  • Limitation of Actions Act, Cap. 22section 13
  • Limitation of Actions Act, Cap. 22section 16
  • Limitation of Actions Act, Cap. 22section 17
  • Limitation of Actions Act, Cap. 22section 38(1) and (2)
  • Land Registration Actsection 28(h)

Cases cited (3)

  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over claims relating to land, including adverse possession

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gitonga (Suing an Administrator of the estate of the Late Gideon Gitonga Nkaabu - Deceased) & 3 others v Kinyua (Sued as the Administratrix of the Estate of the Late Dionysius Muturuchiu Kinyua - Deceased) (Environment & Land Case E016 of 2021) [2025] KEELC 4041 (KLR)", Case Analysis (2025). Originating Summons dated 20th May 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4041/eng@2025-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.