Munga v Karuga (Enviromental and Land Originating Summons 15 of 2023) [2026] KEELC 403 (KLR)
The bottom line
#A Kenyan court dismissed an adverse possession claim because the land occupier had lived there with the owner's permission, and ordered him evicted within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved adverse possession of the 1-acre portion
Claim dismissed: possession was established but it was permissive, not adverse
The court found the Plaintiff occupied the land for over 12 years, but concluded the occupation was with the permission of the late Crispus Maguru and his family, in the hope of a future transfer. If the Plaintiff's father had genuinely purchased land, the family would have claimed a share in the succession cause rather than relying on a beneficiary's goodwill. Citing Wilson Kazungu Katana and Samuel Miki Waweru, permission defeats adverse possession.
Effect of the Defendant's failure to call Samuel Muriithi Mwangi as a witness
No adverse inference drawn because the sale to the Defendant was undisputed and no fraud was alleged
Although failure to call a witness whose statement is on record may ordinarily justify an adverse inference, the Plaintiff himself admitted the sale of the suit land to the Defendant. Since there was no allegation of fraud against the Defendant or Samuel Muriithi, the non-appearance of the witness could not support the inference that his evidence would have been adverse to the Defendant.
Whether the Defendant is entitled to eviction and mesne profits
Eviction ordered within 90 days; no mesne profits awarded
The court noted Order 37 rule 19 allows conversion of an originating summons into a plaint, which the Defendant declined to invoke to pursue a counterclaim for mesne profits. As the adverse possession claim failed and the Defendant is the registered owner whose rights under section 25 of the Land Registration Act are protected, the Plaintiff's continued occupation was inconsistent with the Defendant's ownership, warranting eviction.
Legal principles established
#- A claim of adverse possession cannot succeed where the claimant is in possession with the permission of the owner
- Failure to call a witness whose statement is on record may justify an adverse inference, but not where the fact sought to be proved is undisputed and no fraud is alleged
- Where an adverse possession claim fails, a proprietor's rights under section 25 of the Land Registration Act entitle him to possession and eviction of the claimant
Court orders
#- 1.The Plaintiff's originating summons is dismissed with costs
- 2.The Plaintiff is ordered to be evicted from the suit land within 90 days from the date of the judgment if he does not vacate voluntarily
- Jurisdiction invoked
- Original jurisdiction under Order 37 rule 19 of the Civil Procedure Rules (adverse possession originating summons)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munga v Karuga (Enviromental and Land Originating Summons 15 of 2023) [2026] KEELC 403 (KLR)", Case Analysis (2026). Originating Summons dated 1-11-2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/403/eng@2026-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.