Kithuku v Mulandi (Enviromental and Land Originating Summons E003 of 2023 & Environment and Land Case 20 of 2023 (Consolidated)) [2025] KEELC 6845 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant proved adverse possession of the suit land.
No. The parties were in open, continuing dispute at the chief's office, before the Land Adjudication Officer, in criminal prosecutions and in court; possession was never uninterrupted, and in any event time could only run from registration of the Respondent's title in June 2006.
The court reviewed sections 7, 13, 37 and 38 of the Limitation of Actions Act and the Wambugu v Njuguna and Mtana Lewa formulations. It found that the applicant's own evidence showed disputes, objections and criminal charges interrupting possession throughout, and that adverse possession runs against a registered title, so the 12-year period computed from the 2006 title had not elapsed without interruption.
Whether the sale agreement dated 4th December 1975 was valid and conveyed good title.
Yes. The agreement complied with section 3 of the Law of Contract Act: it was in writing, signed, attested and certified, and the vendor admitted the sale in objection proceedings.
The court applied section 3 of the Law of Contract Act and section 38 of the Land Act, 2012. The agreement was in writing, signed, thumbprinted by the vendor, witnessed and certified by the Assistant Chief and Chief. Allegations of coercion lacked evidence; objection proceedings confirmed the vendor admitted the sale, and the claim that price was refunded did not displace the valid agreement.
Whether the Respondent's registered title over the suit property stands.
Yes. The Respondent held a title issued on 29th March 2006, which is prima facie and indefeasible under sections 24, 25 and 26 of the Land Registration Act, and no fraud was proved against him.
The court applied sections 24, 25 and 26 of the Land Registration Act, which vest absolute ownership in the registered proprietor and protect the title from challenge except on proof of fraud, misrepresentation, illegality, unprocedurality or corrupt acquisition. The Applicant adduced no evidence of fraud, so the Respondent was held to be the lawful registered owner entitled to a permanent injunction.
Whether the Respondent was entitled to a permanent injunction.
Yes. Having established valid title and lawful ownership, the Respondent was entitled to a permanent injunction restraining the Defendants from interfering with the suit land.
With ownership established on title and the adverse possession claim failing, the court entered judgment for the Plaintiff in the consolidated ELC No. 20 of 2023, issuing the permanent injunction sought and awarding costs. The Applicant failed to prove her case on a balance of probabilities.
Legal principles established
#- Adverse possession can only run against the title of a registered proprietor, and time runs from registration of the title.
- A claimant for adverse possession must prove peaceful, open, continuous and non-permissive possession for at least 12 years.
- A contract for the disposition of an interest in land must be in writing, signed by all parties and attested by witnesses present at signing (section 3(3) Law of Contract Act).
- A registered proprietor's title is prima facie and indefeasible, subject only to challenge on grounds of fraud or misrepresentation to which the proprietor is proved to be a party, or illegality, unprocedurality or corrupt acquisition.
- He who alleges fraud or coercion must prove it (section 107 Evidence Act).
Court orders
#- 1.The Originating Summons dated 16th May 2023 is dismissed with costs.
- 2.Judgment entered for the Plaintiff against the Defendants.
- 3.An order of permanent injunction issued restraining the Defendants, their agents, servants, employees, and anyone acting on their behalf from trespassing, entering, cultivating, planting, cutting down trees and grass, or in any other way interfering with the Plaintiff's parcel of land being Mbitini/Mutyambua/658.
- 4.The Plaintiff is awarded costs of the suit.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction) - implied by the court's nature; the judgment does not expressly cite it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithuku v Mulandi (Enviromental and Land Originating Summons E003 of 2023 & Environment and Land Case 20 of 2023 (Consolidated)) [2025] KEELC 6845 (KLR)", Case Analysis (2025). Makueni OS E003 of 2023 (Consolidated with ELC No. 20 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6845/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.