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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether adverse possession can be premised on a claim of fraudulent acquisition of the title
No; the plaintiff cannot plead fraud in the acquisition of the title and simultaneously claim adverse possession, as the two claims are mutually inconsistent
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.
Whether the suit can succeed in the face of an existing permanent injunction issued in Meru HCC Appeal No. 100 of 2019
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
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.
Whether the plaintiff proved the ingredients of adverse possession
No; by the plaintiff's own testimony her occupation was not peaceful, being disturbed by assaults and successive court battles, negating a critical ingredient
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.
Legal principles established
#- 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
#- 1.The plaintiff's suit be and is hereby dismissed
- 2.Costs of the suit be and are hereby awarded to the 3rd Defendant only
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.