Kakeshe v Union Developers Limited (Land Case (Originating Summons) E063 of 2024) [2025] KEELC 8534 (KLR)

4. The Applicant contends that the Respondent’s title has been extinguished by operation of Sections 7, 13 and 38 of the Limitation of Actions Act, and that she has ipso jure acquired proprietary rights over the entire parcel by way of adverse possession. 5. She therefore seeks, inter alia: A. A declaration that the Respondent’s title and interest in the Suit Land stands extinguished by operation of law. b. A declaration that she has acquired title to the Suit Land by adverse possession. B. A vesting order in her favour. C. Orders directing the Deputy Registrar of this Court to execute all requisite conveyancing documents and obtain all necessary consents to efiect transfer. D. An order directing the Land Registrar, Kajiado County, to issue a title deed in her name without requiring production of the original title. E. Costs of the Summons. 6. The Respondent, though duly served, failed to enter appearance and or file any response within the prescribed period, whereupon the matter proceeded as an undefended cause. On 25th February 2025, this Court certified the matter ready for hearing by way of viva voce evidence, following which the Plaintifi testified and produced documentary evidence on 30th September 2025, which evidence remains unchallenged and uncontroverted. Plaintifi /Applicant’s Evidence 7. The Plaintifi/Applicant, Ntemes Ene Ogele Kakeshe, testified as PW1 and adopted on oath the contents of her Supporting Afidavit sworn on 19th June 2024 together with all annexures thereto. Her oral testimony was consistent with the pleadings and averments forming the basis of the Originating Summons. She informed the Court that she has resided on the parcel of land known as Kajiado/Olooloitikoshi/Kitengela/2063 for a period exceeding fifty (50) years, having established her matrimonial home thereon and continuously engaged in livestock farming without interruption all through. She further confirmed that she has occupied the entire parcel exclusively, openly and peacefully, and urged the Court to declare her the lawful owner by way of adverse possession and to order the issuance of title in her name. 8. In support of her testimony, the Plaintifi produced the documentary exhibits attached to her afidavit, which the Court duly admitted and marked as PE 1 – PE 6 in the sequence in which they were listed and filed. Analysis of Submissions 9. The Plaintifi’s written submissions reiterate the case presented through viva voce and afidavit evidence and sets out the legal and factual basis upon which she seeks judgment in her favour. The Plaintifi begins by submitting that she moved the Court through an Originating Summons dated 19th June 2024 seeking a declaration that she has acquired title to land parcel Kajiado/Olooloitikoshi/ Kitengela/2063 through adverse possession. She highlights that the Defendant, despite being duly served, failed to enter appearance or file any response within the prescribed statutory timelines, leading the Court to certify the matter ready for hearing as an undefended cause and to direct that it be heard by way of oral evidence. Consequently, the Plaintifi testified and produced documentary exhibits, none of which was challenged or rebutted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8534/eng@2025-11-27 2

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10. In support of her claim, the Plaintifi recounts her testimony whereby she adopted her supporting afidavit in full and gave sworn evidence that she has resided on the suit property for over fifty years, during which period she has continuously occupied, developed and used the land for cattle rearing, poultry farming and general homestead purposes. She further relies on photographic evidence, filed and marked as Plaintifi’s Exhibit 3, which she submits, depicts the open, visible and uninterrupted nature of her occupation. 11. In analyzing the legal framework, the Plaintifi placed reliance on the definition of adverse possession in the Black’s Law Dictionary, 11th Edition, which describes it as ‘a continuous, open, exclusive and hostile enjoyment of land over a statutory period’. She further cites Section 7 of the Limitation of Actions Act which bars actions for recovery of land after the lapse of twelve years from the date when the right of action accrued. She submits that having lived on the suit property for over fifty years without disturbance, she has met the statutory threshold and the registered owner’s right of action has therefore been extinguished by operation of the law. 12. To buttress her argument, the Plaintifi cites judicial authorities including Celina Muthoni Kithinji v Safiya Bwinti Swaleh & 8 Others [2018] eKLR, where the Court explained that a claimant for adverse possession must demonstrate occupation that is ‘nec vi, nec clam and nec precario’ – meaning peaceful, open, uninterrupted and without permission of the true owner. The Plaintifi asserts that her occupation meets the criteria since it has been known to the registered proprietor who has never taken steps to evict her or reassert control over the Suit Land. In further support, she refers to the Court of Appeal decision in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, which held that adverse possession arises from the neglect or inaction of the legal owner over an extended period, and that by failing to pursue recovery of the land, the registered proprietor efiectively allows the occupier to acquire title by operation of the provisions of the Limitation of Actions Act. 13. Based on this legal reasoning, the Plaintifi submits that the uncontroverted evidence before the Court establishes continuous and exclusive occupation for far longer than the statutory period of twelve years, thereby extinguishing the title of the Defendant and vesting ownership in her. 14. The Plaintifi also cites Section 27(1) of the Civil Procedure Act in support of her prayer for costs, arguing that costs ordinarily follow the event unless the Court directs otherwise. 15. In conclusion, the Plaintifi urges the Court to find that all the elements of adverse possession have been fully proved on a balance of probabilities and to declare her the lawful owner of the Suit Property; the Defendant having lost proprietary rights through efiuxion of time under Sections 7 and 17 of the Limitation of Actions Act. Issues for Determination 16. Having considered the pleadings, the uncontroverted oral testimony of the Plaintifi, and the documentary evidence produced, the Court is of the considered view that the following issues arise for determination: i. Whether the Plaintifi’s occupation of land parcel Kajiado/Olooloitikoshi/Kitengela/2063 satisfies the legal requirements of adverse possession and has, by operation of law, extinguished the title of the registered proprietor; ii. Whether the Plaintifi is entitled to be declared the lawful owner of the Suit Property and to be issued with title accordingly; and iii. Whether the Plaintifi is entitled to the costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8534/eng@2025-11-27 3

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Analysis and Determination i. Whether the Plaintifi ’s occupation satisfies the legal requirements of adverse possession and has, by operation of law, extinguished the title of the registered proprietor 17. The Court begins its analysis by outlining the established legal test for adverse possession in Kenyan jurisprudence. Under the Limitation of Actions Act (Cap 22), the relevant provisions are Sections 7, 13, and 17, which together provide the legal mechanism for a claim of adverse possession. In John Kimini Kamutu v Joseph Macharia Ngunjiri & 3 others [2020] KEELC 2763, the court observed that: “ The combined efiect of the relevant provisions of sections 7, 13 and 17 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya is to extinguish the title of the proprietor of land in favour of an adverse possessor … at the expiry of 12 years of Adverse Possession of that land.” 18. In addition, the Court is guided by the definition and essential ingredients of adverse possession as articulated by the Kenyan courts. In Ibrahim Wachira Karaguri v Mary Mwihaki Simon & another [2020] KEELC 111, the Court of Appeal held that the burden lies on the person seeking adverse possession to prove that they have used the land; “ as of right” and that “nec vi, nec clam, nec precario (No force, no secrecy, no evasion) … The possession must be continuous. It must not be broken …” 19. The maxim nec vi, nec clam, nec precario (not by force, not in secrecy, not by permission) is a recurrent standard in our law. In Samuel Kihamba v Mary Mbaisi [2015] eKLR, the court stated that: “ Strictly, for one to succeed in a claim for adverse possession, one must … occupy the land openly, that is, without force, without secrecy, and without license or permission … These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi…” 20. Turning to the facts in this case, the Plaintifi’s unchallenged evidence overwhelmingly meets these legal requirements. She swore an afidavit, and testified that she has lived on the suit land continuously for more than fifty years; that her occupation has been actual (she built a home, grazed livestock, kept chicken); open and notorious (there is no suggestion of clandestine or hidden use); peaceful (no force or violence); and without any implied or express permission from the registered proprietor. These facts strongly support a finding of non-permissive occupation (animus possidendi), which further satisfies the standard set out above. 21. Given the Plaintifi’s long and uninterrupted occupation that satisfies all the required elements, the Court is persuaded that she has proven adverse possession. As a result, by operation of Sections 7, 13 and 17 of the Limitation of Actions Act, the court declares that the registered proprietor’s title is extinguished in her favour. ii. Whether the Plaintifi is entitled to be declared the lawful owner and to be issued with title accordingly 22. Having established that the Plaintifi has satisfied the test for adverse possession, the Court must consider the appropriate remedy. The extinguishment of the Defendant’s title by operation of the Limitation of Actions Act entitles the Plaintifi to a judicial declaration of ownership. In the case Magige https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8534/eng@2025-11-27 4

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& 4 others v Wasonga w/o Samwel Chacha, the Court granted a vesting order in similar circumstances after finding that all necessary elements were proved. 23. Moreover, Section 38 of the Limitation of Actions Act, together with Order 37 of the Civil Procedure Rules, provides the procedural mechanism for applying to court to be registered as proprietor once adverse possession is established. The court noted that adverse possession is an “overriding interest” under Section 28(h) of the Land Registration Act. 24. In the instant case, given that the Plaintifi has proved her case, and given that she has clearly manifested the requisite animus possidendi (her acts on the land plainly refiect an intention to exclude the registered owner and treat the land as her own), it is proper for this Court to issue a vesting order in her favour. 25. The Court directs the Deputy Registrar to execute all necessary conveyancing documents, and further orders the Land Registrar, Kajiado County, to register the Plaintifi as proprietor of Kajiado/ Olooloitikoshi/Kitengela/2063 and issue a title in her name. iii. Whether the Plaintifi is entitled to the costs of the suit 26. Considering that the Plaintifi’s case was undefended, the court makes no orders as to costs. Final disposition 27. Having found that the Plaintifi has satisfied all legal requirements for adverse possession, it is hereby ordered as follows: a) That the Respondent’s title and interest in the land comprised Land Title No. Kajiado/ Olooloitikoshi/Kitengela/2063 measuring approximately 40.47 hectares (hereinafter “the Suit Land”) stands extinguished by operation of law. b) That the Plaintifi, Ntemes Ene Ogele Kakeshe, has acquired title to the Suit Land Title No. Kajiado/Olooloitikoshi/Kitengela/2063 by way of adverse possession and is therefore the lawful owner thereof. c) That a Vesting Order is hereby issued in favour of the Plaintifi, Ntemes Ene Ogele Kakeshe, vesting the Suit Land Title No. Kajiado/Olooloitikoshi/Kitengela/2063 in her. d) That the Deputy Registrar of the Environment and Land Court at Kajiado is directed to execute all requisite conveyancing documents and obtain all necessary consents to efiect transfer of the Suit Land Title No. Kajiado/Olooloitikoshi/Kitengela/2063 to the Plaintifi’s name without any further delay. e) That the Land Registrar, Kajiado County, is directed to issue a title deed in the name of the Plaintifi for the Suit Land Kajiado/Olooloitikoshi/Kitengela/2063 without requiring production of the original title deed for cancellation or surrender. f) There shall be no orders as to costs. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 27TH DAY OF NOVEMBER 2025. M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8534/eng@2025-11-27 5

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In the virtual presence of: Mr. Terer for the Plaintifi N/A by the Defendant Court Assistant: Kendi M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8534/eng@2025-11-27 6

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