Njuguna v Bakindu & another (Enviromental and Land Originating Summons E008 of 2021) [2025] KEELC 8406 (KLR)

4. 5. b) The plaintifi be registered as the sole proprietor of the said parcel of land namely ALL that property known as Sipili/Donyoloip Block 1/1058 in place of the above named 1st defendant in whose favour the land is currently registered. c) An order of permanent injunction to restrain the defendants, themselves or through their servants, agents or employees from entering, occupying, evicting, the plaintifi from or in any other way interfering with the plaintifi’s occupation and enjoyment of ALL that property known as Sipili/Donyoloip Block 1/1058. d) An order of eviction from the said premises. e) Interest thereon. f) Costs of this suit. The pleading of the 2nd defendant is the amended statement of defence and counter claim filed on 17.1.2023. She denies the claim of the plaintifi, averring that on 17.9.2015, she purchased 3 acres from the 1st defendant which land was to be excised from the suit land. That she took possession thereof and has been occupying the land since year 2017. In her counterclaim, the 2nd defendant has named the 1st defendant and the plaintifi in the main suit as the respective 1st and 2nd defendants. She reiterates that she purchased the suit land from the 1st defendant, and that the plaintifi has often attempted to occupy her portion forcefully. She seeks for judgment in the following terms; “ a) An order of specific performance of the agreement dated 17/9/2015 directing the 1st defendant to transfer a portion of 3 acres out of Sipili/donyoloip Block 1/1058. b) In the alternative and without prejudice to prayer (a) above, an order directing the 1st defendant to pay the plaintifi the full value of the said portion of 3 acre at the market value. c) A permanent injunction restraining the 2nd defendant by herself, her servants, employees, agents and/or any person acting under her authority or claiming through her from entering, using, keeping possession, encroaching or in any manner dealing with the plaintifi’s portion of 3 acres out of Sipili/donyoloip Block 1/1058. d) Costs of the suit with interest. e) Any other relief that this honourable court may deem just and fair to order”. The 1st defendant was served with summons to enter appearance as per the Afidavit of Service dated 6.4.2022, but he never entered appearance, thus the matter proceeded as a formal proof against the said defendant. The 2nd defendant was represented by Kariuki Mwangi advocates who eventually filed an application dated 21.3.2024 to cease acting for the 2nd defendant. The application was allowed on19.9.2024. The matter proceeded for hearing on 26.5.2025 in absence of the 2nd defendant who had been duly served in person. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8406/eng@2025-12-01 2

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6. At the trial, the plaintifi Margaret Muthoni Njuguna testified as PW1. She adopted her witness statement dated 7.2.2023 as her evidence. She also produced the 4 documents in her list dated 7.2.2023 as her exhibits 1-4. Her evidence mirrors the contents of her pleadings. 7. PW2 is one Joseph Njuguna Mwangi who also adopted his witness statement dated 7.2.2023 as his evidence. He introduced himself as a son of the plaintifi, while the 1st defendant is his paternal uncle. He contends that he was born and raised on the suit land. The other contents of his witness statement are similar to what his mother has stated. 8. The plaintifi filed submissions on 16.7.2025 where she relies on the case of Mtana Lewa vs Kahindi Ngala Mwangangi (2015) eKLR to buttress the adverse possession claim. It is argued that the family of the plaintifi has been on the suit land for the last 37 years, the same being their ancestral land as well as matrimonial home. Determination 9. The issue falling for determination is whether the plaintifi has met the threshold in an adverse possession claim. It is noted that the defendants did not tender any evidence, nevertheless, the plaintifi is duty bound to prove her case in terms of the provisions of Section 107 of the Evidence Act. In the case of Gichinga Kibutha v Caroline Nduku [2018] eKLR, the Court held that; “ It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.” 10. In the case of Mistry Valji v Janendra Raichand & 2 others [2016] eKLR, the Court of Appeal set out some of the principles to be considered in a claim of adverse possession as follows; “ i. Adverse possession is not available to a party who is on the registered owner’s land with his consent or where the entry and occupation was lawful and based on some agreement. In other words where the title of the owner is admitted there can be no claim for adverse possession. See Samuel Miki Jane v Jane Njeri Richu Civil Appeal No. 122 of 2001. ii. The occupation of the land must be nec vi, nec clam, nec precario. See Mtana Lewa v Kahindi Ngala, Civil Appeal No. 56 of 2014. iii. The adverse possessor must prove that through his occupation, the true owner has been dispossessed or his possession discontinued. See Wambugu v Njuguna (1983) KLR 172. iv. It is equally established that adverse possession does not arise merely by occupation and use. See Alfred Warimo v Mulaa Sumba Baraza, Civil Appeal No. 186 of 2011 (Ksm) v. The filing of a suit for recovery of land or any other recognized assertion of title to the land by the owner stops time from running for purposes of section 38 of the Limitation of Actions Act. See William Gatuhi Murathe v Gakuru Gathumbi, Civil Appeal No. 49 of 1996”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8406/eng@2025-12-01 3

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11. In the case at hand, the plaintifi contends that her family came to occupy the suit land as their ancestral land, but her husband’s cousin, the 1st defendant caused the land to be registered in his name, then purported to sell the said land to the 2nd defendant. 12. In such circumstances, can the claim of adverse possession succeed? In the case of Eunice Karimi Kibunja v Mwirigi M'ringera Kibunja [2013] eKLR , the Court of Appeal was dealing with a situation whereby the claimant on adverse possession happened to be a child of the original owners of the ancestral land. The court allowed the claim while stating as follows; “ In this case before us, there was no dispute that Eunice was in possession, indeed according to her, and her witnesses she always lived on the suit land with her parents since she was not married but according to the respondent, she returned to the land in 1965 after she was divorced by one Stephen M'Ringera, due to lack of children. Whichever the case, whether she was married or not, by the time she filed this case, she was in exclusive possession of the suit land, this was also openly and as of right and without any interruption for a period of over 12 years. She was also in open occupation and as of right because she participated and paid for the adjudication fees for the suit land to be registered in the name of the respondent then a minor in 1963. She continued in occupation without interruption, developed the suit land and the members of the clan deliberated on her case and decided that she should be given 5 acres. Unfortunately the determination by clan elders had no legal force and Eunice had to pursue her claim in Court.” Also see; Charles Muriuki M’mwari v M’mbogori M’ambutu [2017] eKLR 13. Similarly in the case at hand, I am inclined to find that from the time the 1st defendant acquired the title to the suit parcel, then time started running for purposes of an adverse possession claim. The copies of the green card and the search indicate that the 1st Defendant was registered as the owner of the suit land on 4.4.2007. Thus, the statutory period of 12 years matured on 4.4.2019. This suit was filed on 16.8.2021 which means that the plaintifi has met the requisite criteria in an adverse possession claim. It matters not that the 1st defendant had tried to sell the land, even if the sale had been achieved, that would still not have afiected the plaintifis claim. Final Orders 14. In the end, I find that the plaintifi has proved the claim of adverse possession on a balance of probabilities and I proceed to give orders as follows; i. It is hereby declared that the plaintifi is entitled to the suit land Sipili/Ndonyoloip Block 1/1058 by way of adverse possession. ii. An order is hereby issued for the plaintifi to be registered as the owner of parcel Sipili/ Ndonyoloip Block 1/1058 instead of the 1st defendant. iii. The 1st defendant is hereby directed to facilitate the transfer of the suit land from himself to the plaintifi within 60 days. iv. In the event of none compliance on the part of the 1st defendant, the Deputy Registrar of this court is hereby authorized to execute all the necessary documents to facilitate the transfer as set out in this judgment, and in that regard the production of the original title of parcel Sipili/Ndonyoloip Block 1/1058, as well as the consent from the land control board shall be dispensed with. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8406/eng@2025-12-01 4

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v. A permanent injunction is hereby issued restraining the defendants, themselves or through their servants, agents or employees from entering, occupying, evicting, the plaintifi from or in any other way interfering with the plaintifi’s occupation and enjoyment of all that property known as Sipili/Donyoloip Block 1/1058. vi. Each party shall bear their own costs of the suit. DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 1ST DAY OF DECEMBER, 2025 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Court Assistant – Vanessa Nyambura Macharia for Plaintifi No appearance for Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8406/eng@2025-12-01 5

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