Kiriinya v Kathiga (Sued as the Administratix of the Estate of M’tuerandu M’ithiuru – Deceased) (Enviromental and Land Originating Summons E034 of 2025) [2026] KEELC 1873 (KLR)
The bottom line
#The Environment and Land Court in Meru dismissed a buyer's adverse possession claim because he bought land from someone who had no legal right to sell a deceased person's estate.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff has established the requisite elements underpinning a claim for adverse possession or otherwise
- 2.What reliefs (if any) ought to issue
- 3.Whether a plaintiff who entered onto the suit property on the basis of an illegal contract ought to remain in occupation
Key legal issues
#Whether the Plaintiff established the elements of adverse possession
No. Time never began to run because the final instalment of the purchase price was never paid and the contract was never repudiated; in any event the sale was illegal as intermeddling
The plaintiff's claim rested on a sale agreement dated 11.10.2011 under which the balance of the purchase price was payable on transfer. No transfer occurred, so the balance was never paid; occupation therefore remained permissive under the contract. The plaintiff also tendered no evidence of repudiation of the contract. Further, the vendor Jotham Mwirigi had no grant of letters of administration when he sold, so the sale was an illegal intermeddling with the estate of the deceased contrary to Section 45 of the Law of Succession Act, disentitling the plaintiff from pleading adverse possession.
Whether a plaintiff who entered the property under an illegal contract ought to remain in occupation
No. The illegality vitiates the claim and the court exercised its jurisdiction under Section 13(7) of the Environment and Land Court Act to order eviction notwithstanding the absence of a counterclaim
Applying the ex turpi causa principle as stated in Mapis Investment (K) Limited v Kenya Railways Corporation, the court held that no party may benefit from an illegal or criminal act, and a court must avert illegality once brought to its attention. The failure of the defendant to file a counterclaim did not sanitize the illegality. Relying also on the court's inherent and residual jurisdiction as elucidated in Narok County Government v Ntutu, the court found a basis to issue an order of eviction.
What relief, if any, ought to issue
Dismissal of the suit, costs to the defendant, and an order that the plaintiff vacate within 90 days with an eviction order to issue on default
Having found that the plaintiff failed to prove hostility of occupation and that his entry was founded on an illegal contract, the declarations and registration orders sought could not issue. The court nonetheless invoked Section 13(7) of the Environment and Land Court Act to order vacation and vacant possession, giving the plaintiff 90 days, with liberty to evict on default.
Legal principles established
#- Where a claim for adverse possession is predicated on a sale/purchase agreement, time only begins to run upon payment of the last instalment of the purchase price or upon repudiation of the contract
- A purchaser in occupation who has not concluded payment of the purchase price cannot invoke adverse possession, as his occupation is founded on contract or permission
- A sale of a deceased person's property before issuance of a grant of representation is illegal and void as intermeddling, and a claimant cannot benefit from such an illegal transaction
- A court ought not to enforce an illegal contract where the illegality is brought to its notice and the person invoking its aid is implicated in the illegality
Court orders
#- 1.The Plaintiff's suit be and is hereby dismissed
- 2.Costs of the suit be and are hereby awarded to the Defendant
- 3.The costs shall be agreed upon and in default be taxed in the conventional manner
- 4.The Plaintiff be and is hereby ordered to vacate and hand over vacant possession of the suit property to the Defendant within 90 days from the date hereof
- 5.In the event of default, the Defendant shall be at liberty to evict the Plaintiff either by himself, agents or servants, and an eviction order shall issue
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 37 Rule 7 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Section 38 of the Limitation of Actions Act (Cap 22); Section 13(7) of the Environment and Land Court Act, 2011
Relief refused
#Declaration that the Plaintiff has become entitled by adverse possession to ½ acre of Abothuguchi/Gaitu/1143
The Plaintiff failed to demonstrate that his occupation was adverse/hostile to the rights of the Defendant or the estate of the deceased
Order that the Plaintiff be registered as proprietor of ½ acre of the suit property and that the Land Registrar and County Surveyor carve out the portion
Follows from the failure of the adverse possession claim; the claim was predicated on an illegal contract amounting to intermeddling
Order that the Defendant execute transfer instruments or that the Deputy Registrar execute them in default
Not entitled as the adverse possession claim failed and the underlying sale agreement was illegal
Costs
Costs of the suit awarded to the Defendant, to be agreed upon and in default taxed in the conventional manner
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Where the purchaser, who is in occupation on the basis of the sale/purchase agreement, has not concluded the payment of the purchase price, such a purchaser cannot invoke the doctrine of adverse possession.
In any event, there is no gainsaying that a claimant must demonstrate the ingredients of nec vi, nec clam, nec precario conjunctively.
To my mind, the Plaintifi cannot benefit from illegal and criminal act which are prohibited by the provisions of Section 45 of the Laws of succession Act.
If the evidence adduced by the Plaintifi proves the illegality the court ought not to assist him.
The Plaintifi’s suit be and is hereby dismissed.
Additionally, and taking into account the provisions of Section 13 [7] of the Environment and Land Act, 2011; the Plaintifi be and is hereby ordered to vacate and hand over vacant possession of the suit property to the Defendant within 90 days from the date hereof.
Issues in the judgment
#Conflicting dates of death of the registered owner within the judgment itself
Conflicting dates of the sale agreement within the judgment itself
Conflicting dates of the defendant's replying affidavit within the judgment itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiriinya v Kathiga (Sued as the Administratix of the Estate of M’tuerandu M’ithiuru – Deceased) (Enviromental and Land Originating Summons E034 of 2025) [2026] KEELC 1873 (KLR)", Case Analysis (2026). Originating Summons dated 28.10.2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1873/eng@2026-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.