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ELCPartially AllowedMakueni OS E003 of 2023 (Consolidated with ELC No. 20 of 2023)· [2025] KEELC 6845 (KLR)

Kithuku v Mulandi (Enviromental and Land Originating Summons E003 of 2023 & Environment and Land Case 20 of 2023 (Consolidated)) [2025] KEELC 6845 (KLR)

Environment and Land Court
16 May 2025
5,644 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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What this practically means

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Executive summary

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This consolidated first-instance dispute concerned parcel Mbitini/Mutyambua/658. The Applicant (defendant in the consolidated suit, ELC No. 20 of 2023) sought, by Originating Summons dated 16th May 2023, a declaration that the Respondent's title had been extinguished by adverse possession, cancellation of his title, and registration of a new title in her name. The Respondent, in the consolidated plaint, sought a permanent injunction restraining the Applicant and her family from interfering with the land. The Applicant testified that she and her children had occupied the land for over 28 years, that the 1975 sale agreement to the Respondent was coerced and fraudulent, that the purchase price was refunded in 1996, and that the 1982 objection was never heard. The Respondent testified that he purchased the land in 1975 under a written agreement witnessed and certified by local administrators, obtained a title in 2006, and that criminal cases had been mounted against the Applicant's family for interference. The court framed two issues: whether the Applicant was entitled to the orders sought in the Originating Summons and whether the Respondent was entitled to the orders in the Plaint. Applying sections 7, 13 and 37 of the Limitation of Actions Act and the Mtana Lewa and Wambugu v Njuguna principles, the court held that the Applicant's possession was not continuous or uninterrupted for 12 years and that time could only run from registration in June 2006. It found the 1975 sale agreement valid under section 3(3) of the Law of Contract Act and the Respondent's registered title indefeasible under the Land Registration Act, no fraud having been proved. The Originating Summons was dismissed with costs and the Respondent's suit allowed with a permanent injunction and costs.

Key legal issues

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01

Whether the Applicant proved adverse possession of the suit land.

Holding

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.

Reasoning

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.

p. 8
02

Whether the sale agreement dated 4th December 1975 was valid and conveyed good title.

Holding

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.

Reasoning

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.

p. 11
03

Whether the Respondent's registered title over the suit property stands.

Holding

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.

Reasoning

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.

p. 11
04

Whether the Respondent was entitled to a permanent injunction.

Holding

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.

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.The Originating Summons dated 16th May 2023 is dismissed with costs.
  2. 2.Judgment entered for the Plaintiff against the Defendants.
  3. 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. 4.The Plaintiff is awarded costs of the suit.

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Sections 7, 13, 37, 38, 12(3)
  • Law of Contract ActSections 3 and 3(3)
  • Land Act, 2012Section 38
  • Land Registration Act, 2012Sections 24, 25, 26, 26(1)
  • Evidence ActSection 107

Cases cited (8)

  • Arthi Highway Developers Limited v West End Butchery Limited & 6 Others
    [2015] KECA 816 (KLR)
  • Richard Wefwafwa Songoi vs Ben Munyifwa Songoi
    [2020] eKLR
  • Joseph Macharia Kairu vs Kenneth Kimani Muiruri
    [2021] eKLR
  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358
  • Wambugu Vs Njuguna
    (1983) KLR 173
  • Mtana Lewa Vs Kahindi Ngala Mwangandi
    (2015) eKLR
  • Mombasa Teachers Co-operative Savings and Credit Society Limited Vs Robert Muhambi Katana & 15 Others
    [2018] eKLR
  • Titus Kigoro Munyi Vs Peter Mburu Kimani
    (2015) eKLR
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

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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, "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.