Ngahu v Ngahu (Environment and Land Case E012 & E004 of 2025 (Consolidated)) [2025] KEELC 8229 (KLR)

7. The costs of this suit be borne by the defendant. 2. The plaintifi’s case is as follows: Firstly, in the year 1994, the suit land was advertised for auction by Kenya Commercial Bank. The plaintifi and the defendant who are brothers were interested in the land. They both bought it. It was sold for Kshs.240,000/= plus some auctioneers charges. Each of the parties contributed half of the purchase price. Secondly, the plaintifi trusted the defendant to register the land in their joint names. He had no reason to doubt the defendant who is his elder brother. Secondly, both parties occupied the suit land immediately upon purchase. In the presence of both parties and their wives and other people, the defendant instructed Jackson Migwi Njoroge to subdivide the land into two equal halves running from the lower side to the upper side and Migwi duly complied. At the time of occupation of the suit land, it was covered with tea bushes in the middle part. With the assistance of his wife, the plaintifi planted 10 eucalyptus trees on the upper side bordering the access road. He also planted some grevillea robusta trees and out of the 1500 tea bushes that he had found on the land, he planted about 2000 more. In addition to the plaintifi occupying a half of his said land, he gave his daughter Racheal Nyanjiru about 500 tea bushes on the suit land and she got registered at Kamwiyoni Tea Buying Centre as number GB 360320 since March 2023. Thirdly, the defendant has recently turned against the plaintifi when he caused the plaintifi’s son by the name Simon Ngahu to be arrested and charged in a criminal case for sawing timber growing on the suit land to build shelter for the plaintifi’s grandchildren. The defendant also sued the plaintifi in Murang’a Chief Magistrate’s Case No. E031 of 2024 seeking to evict him from the suit land. Finally, on 2-3-2024 at the home of the parties’ stepmother Esther Njeri Ngahu, the plaintifi demanded the subdivision and transfer of his portion of the suit land but the defendant refused and said that he would rather refund the purchase price. The plaintifi rejected the ofier and preferred to file this suit because he occupied the suit land on account of his contribution of half of the purchase price and not out of any favour by the defendant. 3. In support of his case, the plaintifi filed the following evidence; 4. i. Supporting afidavit dated 3-7-2024. ii. Witness statements by the plaintifi, Jackson Migwi Njoroge, Elizabeth Muthoni Maina and Rachael Nyanjiru Maina. iii. Copy of certificate of oficial search for the suit land dated 27-5-2024. iv. Copy of register for the suit parcel from 11-4-1960 to 13-12-2017. v. Bundle of KTDA advise slips for Josphat M. Ngahu and Rachael Nyanjiru Maina vi. Copy of growers statement from Murata Farmers Sacco Society for Josphat M. Ngahu and Rachael Nyanjiru Maina. vii. Copy of Surveyors Report by Geomatics Services dated 19-6-2024. In his replying afidavit dated 24-7-2024, the defendant denies the plaintifi’s claim and replies as follows; Firstly, the originating summons is frivolous, vexatious and an abuse of the due process of the law as it does not meet the requisite conditions for adverse possession. Secondly, the defendant is the absolute proprietor of the suit land having bought the same in the year 1994 through a public auction. Upon purchase, the defendant was issued with a title deed on 28-6-1994. He has used the tittle deed to acquire loans with the Family Bank Ltd. Thirdly, after he was registered as proprietor of the suit land, he allowed the plaintifi who is his younger brother to occupy and use part of the suit land. It is not true to say that he allowed the plaintifi to plant tea bushes, eucalyptus and grevillea tree as alleged and the plaintifi has not planted such trees. Again the plaintifi has never been in actual occupation and use of any part of the suit land and he only sends his agents to harvest tea bushes that the defendant gave https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8229/eng@2025-11-25 2

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him. Finally, the occupation of the suit land by the plaintifi has been with the defendant's permission and it cannot be correct to say that adverse possession is established when the entry into the suit land was with the defendant’s permission. 5. In support of his case, the defendant filed the following evidence; i. Replying afidavit dated 24-7-2024. ii. Copy of witness statement dated 20-5-2024. iii. Copy of certificate of oficial search dated 7-5-2024 in respect to the suit land. iv. Copy of title deed for the suit land dated 18-6-1994. v. Copy of letter by Shine Merchants dated 18-5-1994. vi. Copy of transfer by chargee in exercise of power of sale dated 24-5-1994. vii. Copy of letter dated 10-6-1994 by the oficial receiver issued in winding up Cause No. 31 of 1984. 6. At the trial on 23-6-2025 and 22-7-2025 the plaintifi testified and called three witnesses who included his wife, his daughter and Jackson Migwi. They all reiterated the plaintifi’s case as outlined herein before. They did not deviate from the pleadings. On the other hand, the defendant testified alone as per his pleadings merely restating what is also outlined herein before. 7. Counsel for the parties filed written submissions dated 13-8-2025 and 15-9-2025 respectively. The defendant's counsel did not identify any issues for determination. The plaintifi's counsel identified the following issues; 8. i. Whether the plaintifi entered into the suit land in the year 1994. ii. Whether the plaintifi only occupied a quarter of the land which would be 1.1 acres out of 4.4 acres as the defendant claimed in his examination in chief and not the half identified in the surveyor’s report. iii. What, in case of the position in (2) above, is the situation of the other 1.1 acres claimed by the plaintifi. iv. What is the efiect of the counterclaim for eviction vis avis the allegation of permissive possession. v. Is the plaintifi’s claim being one suited for trust and if so, can the same be dealt with under the case of Odd Jobs Vs Mubia [1970] KECA 306 (KLR). vi. Should the claim be allowed. vii. Should the counterclaim be allowed. viii. Who should bear the costs of the claim and the counterclaim. ix. What is the legal position and efiect of the oral agreement to jointly purchase the land. I have carefully considered all the evidence adduced in this case by both sides including the afidavits, witness statements, documents and testimony at the trial. I have also considered the written https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8229/eng@2025-11-25 3

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submissions by both sides and the law cited therein. In addition to the issues identified by the plaintifi’s counsel, I find that there is an issue of fact that calls for determination. 1. Who between the plaintifi and the defendant has adduced credible evidence on ownership of the suit land. I identify this issue under Order 15 Rule 2 (c ) of the Civil Procedure Rules which provides as follows; 2. The court may frame the issues from all or any of the following, (c) 9. the contents of documents produced by either party” At the centre of this dispute is simply whether the plaintifi paid half of the purchase price or if he was allowed to farm on the suit land by the defendant who is his elder brother. My finding on this critical issue of fact is that the plaintifi paid half of the purchase price. My reasons for this finding is that I believe his testimony which was credible and consistent. Secondly, his evidence is corroborated suficiently in all the material particulars by the evidence of his wife and daughter whom I also believed as they were consistent in their testimony and unshaken in cross examination. Moreover, there is the independent evidence by Jackson Migwi Njoroge that immediately upon purchase the plaintifi and the defendant shared the land into two equal halves from the lower side all the way to the upper side. I believe that this is exactly what happened. I also believe that the plaintifi planted tea bushes and that he and his daughter have been harvesting them and selling to the local tea factory. Maintaining tea on half of the suit land is inconsistent with temporary cultivation rights that the defendant claims to have granted the plaintifi. The evidence by the defendant stands alone and is not corroborated by any other evidence. It cannot possible be true in the face of the overwhelming evidence of purchase, occupation and use tendered by the plaintifi and his witnesses. 10. Having found that the plaintifi entered the suit in 1994 and that he occupied half of it as the owner of that half, I find that this determination takes care of the first three (3) issues as identified by the plaintifi’s counsel. Regarding the fourth issue, I find that the claim for adverse possession cannot succeed simply because the condition of lack of permission from the registered owner is missing. I agree with the defendant’s counsel that as per the case of Samuel Kihamba Vs Mary Mbaisi (2015) eKLR it was held as follows; Strictly, for one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is, without force, without secrecy, and without license or permission of the land owner, with the intention to have the land….” 11. There can be no denying that the defendant is the registered owner of the suit land. He has the title deed to show for it. He has the certificate of oficial search as well as the copy of the register. This ownership is not absolute. It is subject to overriding interests recognized under Section 30 of the Registered Land Act first and later under Section 28 of the Land Registration Act. In the repealed Act (Cap 300) the specific provision was Section 30 (g) which provides as follows; Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and afiect the same, without their being noted on the register - https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8229/eng@2025-11-25 4

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(g) the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed.” Section 28(b) of the Land Registration Act (Article No. 3 of 2012) recognizes trusts including customary trusts as interests that overide the register even without such rights being noted on the register. In this case, those are the rights that the plaintifi has and they are borne out of the half contribution that he made when they bought the suit land at the auction and his immediate occupation of the land from 1994 to date, a period of over 31 years. In the case of Kiebia Vs M’lintari and another Petition No. 10 of 2015, it was held by the Supreme Court of Kenya that the rights of a person in possession of actual occupation are overriding interests and they need not be registered in the register. 12. Since the plaintifi is a co-owner of the suit land as well as co-occupant, the counter claim by the defendant seeking to evict him has no basis at all. 13. For the above stated reasons, I find that the plaintifi is entitled to half of the suit land. I order that the defendant subdivides the suit land into two equal halves and transfers to the plaintifi the half that he has occupied and developed since the year 1994. In case the defendant does not cooperate in the subdivision and transfer of half of the suit as stated above, the Deputy Registrar to execute all the necessary instruments to give efiect to the subdivision and transfer of half of the suit land to the plaintifi. 14. Finally on costs, though I strongly feel that the plaintifi should be awarded such costs, to foster harmony between the two brothers, I will order that each party bear its own costs. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED THIS 25TH DAY OF NOVEMBER, 2025 ………………… M. N. GICHERU JUDGE In the presence of: Plaintifi’s Counsel-Mr. Mbuthia Defendant’s Counsel- Mr. Kirubi Mohamed Dabar-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8229/eng@2025-11-25 5

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