Kanga Mwirabua & 12 Others v Ndereba Naichu

2. The subject matter of the suit herein, which is the land parcel Karingani/Mariani/395 (the suit land and sometimes also simply Page 2 of 14

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referred to as parcel No.395) got registered in the name of the respondent on 30th October 2013 as first proprietor after the land was subjected to the process of adjudication under the Land Adjudication Act (Cap 284) Laws of Kenya. Prior to the respondent becoming the registered proprietor, there was an adjudication dispute with the family of the appellants, over who should be registered as proprietor of the suit land, which dispute was decided in favour of the respondent by the Land Adjudication Officer sometimes in 2007. The appellants did not file an appeal to the Minister against that decision pursuant to Section 29 of the Land Adjudication Act. Nevertheless, at the time of adjudication the appellants and/or their families were in possession of the suit land and continued being in possession even after the respondent obtained registration and title in his name. 3. Through an Originating Summons filed on 23 rd June 2016 in the Environment and Land Court at Meru and registered as Meru ELC No. 83 of 2016 (OS), Kanga Mwirabua, Mbiuki Mwirabua, and Baini Nkari, the 1st, 2nd and 13th appellants herein, filed suit seeking a declaration that they have acquired title to the suit land by way of adverse possession. In the supporting affidavit, sworn by Mbiuki Mwirabua, on behalf of himself and the other applicants, he deposed that they had been on the suit land since 1940, uninterrupted, and that the respondent had never entered the land. 4. The respondent filed a replying affidavit to oppose the Originating Summons. He deposed that he got registered as proprietor of the Page 3 of 14

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suit Page 4 of 14

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land on 30th October 2013 after the adjudication process was completed in 2006. He however mentioned that the title had an error in the acreage, as it reflected 4.63 Ha instead of 7.5 Ha, which error he explained arose after the surveyor failed to include a portion divided by a road. He deposed that the appellants are settled on their own land, Kiringai/Mariani/4786 (parcel No.4786), measuring 17.04 Ha, and denied that they were in possession of the suit land. He asserted that time could only run in favour of the appellants after 30th October 2013 which is the time that he got his title deed. 5. To assert his right to the suit land, the respondent filed a separate suit of his own, being Chuka ELC No. 278 of 2017 against 11 persons, being the 3rd to 13th appellants herein, and one Kangangi Nkari. In that suit, he averred that the defendants had taken occupation of the suit property hoping to prevail to be awarded the land during the adjudication process but they failed. He sought orders for their eviction, a permanent injunction against them, and mesne profits. The defendants filed a defence and counterclaim. They contended that they had been in possession of the land for a period of more than 12 years, and in their counterclaim, they sought a declaration that the respondent had lost his right to claim the land by operation of Section 7 of the Limitation of Actions Act, Capp 22, Laws of Kenya. It is noteworthy that Kangangi Nkari died in 2018 before the suit could be heard and the respondent discontinued the suit against him. That is the reason that there are 13 appellants and not 14. Page 5 of 14

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6. The Originating Summons was transferred to the Chief Magistrates’ Court at Chuka and registered as Chuka CMCC No. 47 of 2018. It would also appear that the respondent’s suit was transferred to the Chief Magistrates’ Court at Chuka and registered as Chuka CMCC No. 166 of 2017. The two cases, that is the Originating Summons and the Plaint filed by the respondent, were consolidated on 31st July 2019 vide a ruling delivered in Chuka ELC Miscellaneous Case No. 7 of 2018. Upon consolidation, the consolidated suits were registered as Chuka ELC No. 19 of 2019 (OS) and heard in the Environment and Land Court, with the appellants being treated as plaintiffs and the respondent as defendant. 7. At the hearing, the appellants called five witnesses. 8. Ciambere Kangangi Nkari (the 3rd appellant and PW1) is an old lady of over 90 years and wife of Kangangi (deceased). She testified that she was on the suit land though she could not tell of the parcel number. She could not remember the proceedings on adjudication. She did not know of the parcels number 395 and 4786 and whether they have titles. She nevertheless averred that the suit land has belonged to them since time immemorial. 9. Doris Ciamui Kangangi (the 4th appellant and PW2), an 88-year-old lady and wife of one Zakaria Kangangi, stated that she got married in 1958 and lived on the suit land since. She was not aware of any objection filed by the respondent at the time of adjudication and did not know the parcel No. 395. She was not aware of any land Page 6 of 14

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belonging to the respondent. According to her the parcel No. 395 does not exist. She was nevertheless Page 7 of 14

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aware of previous disputes which she thought were decided in an unjust manner. 10.John Mutegi (the 5th appellant and PW3) and Stanley Kaburu Kangangi (the 6th appellant and PW4) also testified that they have been on the suit land for a long time. PW4 mentioned that he had 2 houses, a miraa crop, and some trees on the land. He elaborated that all appellants had houses on the land and that the respondent has never lived on it nor cultivated it. He was aware that during adjudication, their family was allocated the parcel No. 4786 and the respondent allocated the suit land i.e parcel No. 395. He thought that the decisions during adjudication were unfair. 11.Justin Kithinji Nderi (PW5), is a land surveyor. He produced a survey report which demonstrated that the appellants were the ones in occupation of the suit land. 12.The respondent testified as sole witness for his case. He produced his title deed and green card which demonstrated that he is the first registered owner of the suit land. He testified that he had several disputes with the appellants during the adjudication process which ended with him being declared the owner of the land. He mentioned that upon adjudication, John Mutegi (5 th appellant) was awarded the neighbouring land (No. 4786) and no appeal was filed to the Minister against the decision of the Adjudication officers. Cross-examined, he testified that the appellants forcefully moved into the land in 1986 and demolished his property. He has therefore never used the land Page 8 of 14

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since. Page 9 of 14

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13. In his judgment, the trial judge found that there was consensus that it was the appellants who were in occupation of the suit land. He held that during the adjudication process the suit land was ascertained to the respondent, whereas the land parcel No. 4786 was ascertained to the appellants and registered in the names of Kanga Mwirabua, Mbiuki Mwirabua and Baini Nkari, and the appellants never appealed this decision to the Minister. He also found that the appellants did not challenge the integrity of the adjudication process through a judicial review. He held that the appellants could not assert adverse possession where land is ascertained to somebody else during adjudication and they could not resort to self-help to declare themselves the owners of the suit land. He held, in reliance to the persuasive decision in the case Koech Kangogo v Chebii Yego (2018) KEELC 2580 (KLR), that the period during the adjudication process does not count in determination of the threshold for adverse possession. He thus dismissed the case of the appellants and allowed the counterclaim of the respondent. He issued the order of eviction and awarded the respondent Kshs.320,000/= as mesne profits. He also issued the order of permanent injunction against the appellants. 14.Aggrieved, the appellants have preferred this appeal on the following grounds: (1) That the learned trial judge erred in law and in fact in failing to consider the respondent’s unequivocal admission that the Page 10 of 14

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appellants took possession of the suit land in 1986 without the Page 11 of 14

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respondent’s permission and have since dispossessed the respondent. (2) The learned trial judge erred in law and in fact in failing to use the admitted year of 1986 as the basis to calculate the period of adverse possession. (3) The learned trial judge erred in law and in fact in failing to find that the dispossession of the suit land by the appellants against the respondent was completed before the registration of the suit land and the same was continuous before and after registration. (4) The learned trial judge’s orders of eviction of the appellants from the suit premises is contrary to the letter and spirit of Article 11 (i) of the International Convention on Economic, Social and Cultural Rights of which Kenya is a party under Article 2 (5) and (6) of the Constitution of Kenya, 2010. (5) The learned trial Judge’s orders of eviction against the applicants herein is arbitrary and infringe on the appellants’ right to adequate housing if the same is executed contrary to Article 17 of the International Covenant on Civil and Political Rights in which Kenya is a party. The appellants pray that the appeal be allowed, the judgment be set aside, and judgment be entered in their favour as prayed in the Originating Summons. They also seek costs of this appeal and any other relief deemed fit to grant. 15.The appeal was urged through written submissions and oral highlights. We have gone through the written submissions of Mr. Anampiu, learned counsel for the appellants, and Mr. Kaumbi Kioga, learned counsel for the respondent though the latter did not appear at the Page 12 of 14

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plenary hearing. 16.The material facts of the case are largely not in dispute. It is common ground that it is the respondent who is the registered proprietor of the Page 13 of 14

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suit land. It is also common ground that he became registered as proprietor after the process of adjudication under the Land Adjudication Act. It is also common ground that during adjudication, there was a dispute as to who ought to be registered as proprietor of the suit land, which dispute was resolved by the Adjudication Officer in favour of the respondent pursuant to Section 26 of the Land Adjudication Act. The appellants did not lodge any appeal to the Minister as prescribed by Section 29 of the Land Adjudication Act. It would appear that instead, the 1 st, 2nd, 5th and 13th appellants, filed a plaint dated 9 February 2007 before the Chief Magistrates’ Court, being the case Meru CMCC No. 50 of 2007 John Mutegi & 3 Others vs Ndereba Naichu & 3 Others (including the District Land Adjudication Officer and the Director of Land Adjudication and Settlement). That case did not proceed, as the Magistrate, in a ruling delivered on 4 th December 2012, upon a preliminary objection being raised, held that the Magistrates’ court had no jurisdiction to overturn the decision of the Adjudication Officer. That court was of the opinion that the avenue was to appeal to the Minister or file a judicial review to impugn the process. The appellants did neither. It is not disputed that the appellants were in possession of the suit land at the time they commenced suit, and that they were in possession, at least from the year 1986, which is the year acknowledged by the respondent. 17.The central question, as pointed out at the beginning of this judgment, is whether time was running in their favour prior to the Page 14 of 14

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adjudication and Page 15 of 14

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registration of the suit land in the name of the respondent. If such time is computable, clearly, the appellants, besides any other vitiating factors, would be entitled to orders for adverse possession, since possession is conceded from the year 1986 and the suit was filed in 2016. That is a period of 30 years which is more than the 12 years required for one to prove adverse possession. The trial court was of the opinion that the period prior to registration could not start running in favour of the appellants. In this appeal, the appellants of course contend, among other things, that the time prior to the time of adjudication should have been considered. However, we hasten to state that we have not seen in the submissions of counsel for the appellants, any law or authority supporting this position. 18.The key issue is not novel. The Environment and Land Court (Ombwayo J), in the case of Koech Kangogo v Chebii Yego (supra) held the following opinion: “The defendant in this matter became the registered proprietor of the suit land on 20.5.2003. Prior to that, there was the process of consolidation, demarcation and adjudication. This court finds that time does not run during consolidation, demarcation and adjudication. Time starts running on the date of registration.” 19. This same question arose before this Court, differently constituted, in the case of Thaitumu v Iguathu & 8 others [2024] KECA 1084 (KLR) (19 August 2024) (Judgment) where the appellant filed suit Page 16 of 14

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asserting title by way of adverse possession. He claimed that before adjudication, the suit properties were owned by his grandfather, and that he Page 17 of 14

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bequeathed them to his mother who was to hold in trust for her male heir. As male heir, he moved into the suit properties and claimed to have been living on the same since 1963. When adjudication was being undertaken in the 1990s, he filed an objection which was dismissed in 1998 after which the respondents became registered as proprietors. His suit for adverse possession was filed in 2007. He lost at trial and lodged an appeal to the Court of Appeal. In dismissing the appeal, the Court (Karanja, Kimaru, Muchelule) expressed itself as follows: 22.We hold that, with respect to land that is subject to the adjudication process, time for purposes of adverse possession, does not start running until the adjudication process is completed, rights are ascertained, and owners of the said properties are registered. The appellant filed his suit in the year 2007. The statutory period of twelve years had not lapsed by he filed the said suit following the completion of the adjudication process. 20.We see no reason to depart from this decision. 21.It is necessary to understand the place of adjudication vis-à-vis a claim for adverse possession. Adjudication takes place over ancestral land or such other land where individual rights of ownership have yet to be ascertained. In other words, adjudication is that process which is undertaken to determine who ought to be registered as proprietor of the land that lies within an adjudication section. Generally, once an area is declared an adjudication section, the adjudication officers and the other institutions outlined in the Land Adjudication Act, such as the Adjudication Committee, undertake an inquiry to determine who Page 10 of 14

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holds rights to the subject land and who ought to be registered as proprietor Page 10 of 14

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thereof. The adjudication officers will take into account several factors, such as who is in possession, who holds the ancestral rights of ownership, whether a person has purchased the land, who may be registered as trustee, and how to distribute and demarcate family land held communally. It is during adjudication that proprietary rights of hitherto unregistered land are ascertained. If one has been in long possession, that will be taken into account and the adjudication officers will consider whether that long possession entitles the possessor to be registered as proprietor. The Land Adjudication Act has an elaborate quasi-judicial mechanism on ascertainment of rights where a decision of the Adjudication Officer is objected to. The final arbiter is the Minister (now Cabinet Secretary) under Section 29 thereof and his decision is final. Upon a final determination the person to whom the rights have been ascertained will become registered as proprietor. 22. Once rights under adjudication are ascertained, they cannot be reopened. A person can of course be registered as proprietor as trustee but an adverse possessor does not claim under trust. Adverse possession is a distinct claim where one needs to prove various ingredients, that is possession that is nec vi, nec clam, nec precario (without force, without secrecy and without permission) for a continuous period of at least 12 years. Trust is distinct from adverse possession and can indeed be proved even when one has not been in possession as held by the Supreme Court in the case of Kiebia v Page 11 of 14

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M’lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR) (5 October 2018) (Judgment). Page 12 of 14

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23.It follows that one needs to tailor his case appropriately. Trust is capable of tracing its roots prior to adjudication so that when title is issued it is encumbered by that right of the cestui que trust or beneficiary. Adverse possession commences where adjudication stops. It is thus only after adjudication and registration that time can start running in favour of an occupant. He must clock 12 years after registration of the title of the person to whom the land has been adjudicated. It is necessary to appreciate that for possession to be adverse, it must be against a particular title registered in the name of a particular person. Where the land is public land, or is unadjudicated, and has no title, there can be nobody claiming individual ascertained rights to it and it follows that there is no title against which time can run in favour of any possessor. For adverse possession to commence, there must be an individual title issued to a person. In the same way that time starts running in favour of an adverse possessor, time is also running against the registered proprietor. Before registration, time cannot start running for, or against, any party. According to law, it is from the time of registration that the rights of the registered proprietor crystalize under Section 24 of the Land Registration Act, which provides as follows: 24. Interest conferred by registration Subject to this Act— (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or Page 13 of 14

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appurtenant thereto; and Page 14 of 14

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(b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. 24.It is can be deduced from the above, that it is the act of registration that now vests in the proprietor the rights of ownership. Once the proprietor is registered, time starts running against him to recover land from any person in possession, in line with Section 7 of the Limitation of Actions Act (Cap 22) Laws of Kenya, and such action will be barred if not undertaken within a period of 12 years of such registration. After lapse of 12 years, if no action is taken, then the title of the registered proprietor may become extinguished pursuant to Section 17 of the Limitation of Actions Act. Time cannot start running against the proprietor prior to registration, and as a corollary, time cannot start running in favour of a possessor prior to registration of the proprietor. 25.In this case, the respondent obtained registration on 30th October 2013. The claim for adverse possession was filed on 23 rd June 2016 through the Originating Summons. The respondent’s plaint for eviction was filed on 17th August 2017. Twelve years had not lapsed before either action was taken. It follows that the claim for adverse possession could not succeed. 26.Within the memorandum of appeal, it was raised that eviction of the Page 15 of 14

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appellants would be against the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Page 16 of 14

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Political Rights to which Kenya is a party under Article 2 of the Constitution. We see no basis for such argument. Firstly, it was never raised nor was it subject for determination before the Environment and Land Court. Secondly, Article 40 of the Constitution protects the right to property and in this instance, it is the ascertained proprietary rights of the respondent that need protection. We see no need of saying any more. 27.From the foregoing it will be discerned that we find no substance in this appeal and it is hereby dismissed with costs to the respondent. Orders accordingly. Dated and delivered at Meru this 25th day of September, 2026. S. GATEMBU KAIRU, (P), FCIArb, C.Arb. …………....………………. JUDGE OF APPEAL H. I. ONG’UDI ………….....………………. MUNYAO SILA ……………....……………. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 17 of 14

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