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ELCDismissedOriginating Summons dated 20th June 2025 (Meru ELC)

George Kiunga M'Rinkanyaa & Another v Nderia Farmers' Cooperative Society Limited

Environment and Land Court
29 January 2026
5,934 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru dismissed a claim for land by adverse possession because the occupants were on the land with the owner's permission, not against the owner's will.

What this practically means

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Executive summary

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The Plaintiffs brought an Originating Summons dated 20th June 2025 under section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, seeking declarations that they had acquired LR No. Abothuguchi/Gitie/437 by adverse possession after over 12 years of continuous occupation, and that the Defendant's title be extinguished and the register rectified. The Defendant, a cooperative society to which the suit land was transferred after the collapse of Nkando Farmers' Cooperative Society, denied the claim, averring that the Plaintiffs' entry and farming on the vacant portions occurred in 2024 with the society's permission, subject to instructions not to erect structures. The matter proceeded to full trial by viva voce evidence, with three witnesses for the Plaintiffs and two for the Defendant. The court framed two issues: whether the ingredients of adverse possession were established, and what reliefs should issue. It held that adverse possession requires open, continuous, uninterrupted and non-secretive possession known to the registered owner (nec vi, nec clam, nec precario), and that the Plaintiffs lacked animus possidendi since they only discovered the Defendant's ownership in February 2025. The uncontroverted replying affidavit of the Defendant's chairman established that occupation was permissive; the Plaintiffs neither filed a supplementary affidavit nor cross-examined DW1 on these averments. The court also drew an adverse inference from the 2nd Plaintiff's failure to testify despite incriminating evidence that he held the Defendant's machinery in safe custody as area manager. The suit was dismissed with costs to the Defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiffs have proven and established the requisite ingredients underpinning the claim of adverse possession or otherwise
  2. 2.What reliefs (if at all) ought to be granted

Key legal issues

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01

Whether the Plaintiffs established adverse possession

Holding

No - their occupation was with the Defendant's permission and lacked the requisite hostility and animus possidendi

Reasoning

The court found the Plaintiffs did not even know who owned the land until February 2025 when they bought a green card, negating animus possidendi. The Defendant's uncontroverted replying affidavit averred that the Plaintiffs entered in 2024 with permission to farm vacant portions and were barred from erecting structures. The 2nd Plaintiff, entrusted with machinery as area manager, chose not to testify, inviting an adverse inference. Permission negates adversity.

02

Whether the Plaintiffs discharged the burden of proof

Holding

No - the burden lay squarely on the Plaintiffs and was not discharged

Reasoning

Relying on sections 107-109 of the Evidence Act and the Mucheru and Karugi authorities, the court reaffirmed that the burden on a plaintiff remains constant throughout the trial and is not lessened where the case is undefended or heard by formal proof. The Plaintiffs failed to controvert the Defendant's evidence or cross-examine DW1 on the permission averments.

p. 11

Legal principles established

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  • Consent and permission by the registered owner of land negates a claim of adverse possession
  • A claimant must prove open, continuous, uninterrupted and non-secretive possession known to the registered owner (nec vi, nec clam, nec precario)
  • A claimant unaware of the registered owner lacks animus possidendi
  • Failure to respond to pertinent averments in a replying affidavit renders them unrebutted

Court orders

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  1. 1.The Plaintiffs' suit be and is hereby dismissed
  2. 2.Costs of the suit be and are hereby awarded to the Defendant
  3. 3.The costs in terms of clause (ii) shall be agreed upon and in default be taxed in the conventional manner

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22) and Order 37 Rule 7 of the Civil Procedure Rules 2010

Relief refused

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Declaration of acquisition of the suit property by adverse possession

Possession was permissive, not hostile; adverse possession ingredients not proven

Cancellation of the defendant's title and rectification of the register

Follows from failure of adverse possession claim

Costs

Costs of the suit awarded to the Defendant, to be agreed upon and in default taxed in the conventional manner.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Plaintiffs' suit be and is hereby dismissed.
Final orders - dismissal
Costs of the suit be and are hereby awarded to the Defendant.
p. 12Final orders - costs
consent and permission by the registered owner of the land negates a claim of adverse possession. In this regard, the Plaintiffs who are on the land by virtue of permission cannot become chameleons and seek adverse possession.
p. 9Permission negates adverse possession
The mere fact that one has been in possession of land for more than twelve years is not enough.
p. 8Animus possidendi requirement
where a party who is a compellable witness and is available to testify, fails to testify despite incriminating evidence, then a court of law is enjoined to invoke and deploy the doctrine of adverse inference.
p. 10Adverse inference

Issues in the judgment

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minor

The pleading names Nkando Farmers' Cooperative Society Limited as the party that purchased the land and was later fragmented into three societies, 'one of them being the defendant herein', but DW1's evidence and the exhibits describe the defendant as Nderia Farmers' Cooperative Society, and PW3 states the houses were constructed by 'Nderia Farmers' Cooperative Society'; the exact identity of the defendant society relative to Nkando is not fully clarified on the record.

minor

The Plaintiffs claim occupation since the 1990s while their own supporting affidavit and the evidence indicate they only discovered the Defendant's ownership in February 2025 and sought permission to farm in 2024; PW2 also testified the Plaintiffs 'have been in the property since the year 1998', a contradiction the court noted implicitly.

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, "George Kiunga M'Rinkanyaa & Another v Nderia Farmers' Cooperative Society Limited", Case Analysis (2026). Originating Summons dated 20th June 2025 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/325/eng@2026-01-29

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