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ELCDismissedOriginating Summons dated 6th November 2020 (Meru ELC)· [2025] KEELC 6607 (KLR)

Mungania (Suing as an Administrator of the Estate of the Late M'Mungania M'Mbwii - Decease) v Muriira (Sued as an Administratix of the Estate Of The Late Lawrence Muriira M'Thiruaine - Deceased) & 2 others (Enviromental and Land Originating Summons E005 of 2021) [2025] KEELC 6607 (KLR)

Environment and Land Court
18 September 2025
5,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a land claimant's adverse possession case because she simultaneously alleged the title was fraudulently obtained.

What this practically means

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Executive summary

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The plaintiff, widow and administratrix of M'Mugania Mbuii, filed an Originating Summons seeking a declaration that she had been in open, continuous and unsanctioned possession of L.R. No. Ntima/Ntakira/2591 since 1992 and had acquired title by adverse possession, together with registration as proprietor and rectification of the register. The 1st and 2nd Defendants contended the claim was premature and barred by a permanent injunction issued in Meru HCC Appeal No. 100 of 2019 restraining the plaintiff from the land; they did not tender evidence at trial. The 3rd Defendant, a bank holding a charge over the property, testified to due diligence including an official search, and urged dismissal. The court framed three issues: whether adverse possession lies alongside a plea of fraud; whether the suit could succeed against a subsisting permanent injunction; and whether the ingredients of adverse possession were proved. On the first, the court held the claim unsustainable because the plaintiff consistently asserted that the 1st Defendant's husband acquired the land by fraud and trickery, which is antithetical to adverse possession, which requires conceding the registered owner's title. On the second, the permanent injunction was an order in rem, conclusive under Section 44 of the Evidence Act, and this court could not issue contradictory orders. On the third, the plaintiff's own testimony that her occupation was disturbed, punctuated by assaults and litigation, negated peaceful and uninterrupted possession for over twelve years. The suit was dismissed with costs to the 3rd Defendant only. Judgment delivered at Meru on 18th September 2025 by Oguttu Mboya, J.

Key legal issues

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01

Whether adverse possession can be premised on a claim of fraudulent acquisition of the title

Holding

No; the plaintiff cannot plead fraud in the acquisition of the title and simultaneously claim adverse possession, as the two claims are mutually inconsistent

Reasoning

Adverse possession stems from an acknowledgement that the property lawfully belongs to the registered owner who has been dispossessed. The plaintiff maintained throughout, in her affidavit and before the provincial appeals committee, that the property was obtained by trickery and that she wanted her land back. Relying on Haro Yonda Juaje and Richard Wefwafwa Songoi, the court held such prevarication defeats the claim; the proper remedy would be rectification, not adverse possession.

p. 6
02

Whether the suit can succeed in the face of an existing permanent injunction issued in Meru HCC Appeal No. 100 of 2019

Holding

No; the injunction is an order in rem, conclusive under Section 44 of the Evidence Act, and this court cannot grant a contradictory order, which would amount to sitting on appeal over a High Court judge's decision

Reasoning

The court perused the file in Meru HCC Appeal No. 100 of 2019 and confirmed a permanent injunction issued by Mabeya J on 29th July 2020 restraining the plaintiff from entering or remaining on the suit property. As an order in rem, its conclusiveness is entrenched by Section 44 of the Evidence Act. The plaintiff produced no evidence of any appeal against it. Granting the OS would contradict a subsisting order, an endeavour frowned upon by the rule of law.

p. 8
03

Whether the plaintiff proved the ingredients of adverse possession

Holding

No; by the plaintiff's own testimony her occupation was not peaceful, being disturbed by assaults and successive court battles, negating a critical ingredient

Reasoning

A claimant must show open, continuous, peaceful and uninterrupted possession for over 12 years under nec vi, nec clam and nec precario. PW1 admitted under cross-examination that she had not had peaceful occupation and was often assaulted and disturbed, and her affidavit recited numerous court battles over the land, including the tribunal proceedings and the permanent injunction. Following Jandu v Kirpal and Wilson Kazungu Katana, the absence of peace defeats the claim.

p. 9

Legal principles established

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  • A claimant for adverse possession must first concede that the property lawfully belongs to the registered owner; adverse possession is inconsistent with a plea that the title was fraudulently acquired
  • A court of concurrent status cannot issue orders contradictory to a subsisting permanent injunction in rem affecting the suit property
  • Adverse possession requires open, continuous, peaceful and uninterrupted possession for over 12 years (nec vi, nec clam, nec precario)

Court orders

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  1. 1.The plaintiff's suit be and is hereby dismissed
  2. 2.Costs of the suit be and are hereby awarded to the 3rd Defendant only
  3. 3.The costs shall be agreed upon; and in default be taxed by the Deputy Registry in the conventional manner
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over a claim for adverse possession of L.R. No. Ntima/Ntakira/2591

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, "Mungania (Suing as an Administrator of the Estate of the Late M'Mungania M'Mbwii - Decease) v Muriira (Sued as an Administratix of the Estate Of The Late Lawrence Muriira M'Thiruaine - Deceased) & 2 others (Enviromental and Land Originating Summons E005 of 2021) [2025] KEELC 6607 (KLR)", Case Analysis (2025). Originating Summons dated 6th November 2020 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6607/eng@2025-09-18

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