Mburu (Suing as the Personal Representative of the Estate of James Edward Mburu) v Thuo & another (Enviromental and Land Originating Summons E026 of 2024) [2026] KEELC 4479 (KLR)

Relying on Kirugi & Another v Kabiya & 3 Others, the court held that a defendant's failure to contest does not constitute an automatic win. The legal burden on the plaintiff remains exactly the same whether the suit is contested or heard as formal proof, so the Applicant had to satisfy the statutory elements of adverse possession on a balance of probabilities despite the non-response of the Defendants.

The court evaluated the uncontroverted affidavit and oral evidence, finding proof of administrator ad litem status, entry in 1986 following an incomplete sale, seasonal farming of maize and beans, and total neglect by the registered owner to assert re-entry. Applying J A Pye (Oxford) Ltd v Graham and the twelve-year threshold in Kasuve v Mwaani Investments, the claim exceeded the statutory period and the registered title was extinguished.

The court acknowledged the traditional conveyancing principle that entry under a sale agreement is a licence, not hostile possession. However, citing Chandrakant Devraj Shah v Alibhai Haji and Bridges v Mees, it held that when a purchaser has paid the purchase price and been let into possession but the vendor fails to convey, the licence mutates into adverse possession, with time running against the vendor once the purchaser treats the land as their own.

Addressing constitutional critiques of the doctrine, the court relied on the Supreme Court's decision in Willy Kimutai Kitilit v Michael Kibet, which upheld adverse possession as a public policy mechanism encouraging productive use of land and punishing owners who sleep on their rights. Article 40 protection is not infringed because the owner's right of action is extinguished by operation of law after the limitation period.