Mainoya v Kongoacheke Enterprises Limited

3. The Applicant contends that the Respondent exploited his mother’s excessive consumption of alcohol and, taking advantage of her vulnerability, fraudulently deprived her of the suit property. He further avers that his request to the Land Registrar for rectication of the register, specically to eect a temporary entry of his name on the title, was not acted upon, as evidenced by a recent ocial search conducted by him. 4. The Applicant maintains that he was born on the suit property and has, over the years, established a permanent home thereon, where he resides with his wife and adult children. He further depones that he engages in livestock rearing and cultivation of the land. He avers that the Respondent has never confronted him, challenged his occupation, or otherwise asserted any claim over the suit property, and that his possession thereof has at all material times been peaceful, open, and uncontested. In the premises, the Applicant prays for a declaration that he is lawfully entitled to the suit property and for an order directing the Kajiado Land Registrar to issue a title deed in his favour. 5. Being unable to trace the Respondent for purposes of eecting personal service of the Originating Summons, the Applicant moved the Court by way of a Chamber Summons dated 14th October 2024, seeking leave to serve the Respondent through substituted service. The said Application was duly allowed on 5th May 2025. Notwithstanding that substituted service was eected, as evidenced by the Adavit of Ezra Sifuna sworn on 25th July 2025, the Respondent neither entered appearance nor led any response to the allegations levelled against it by the Applicant. Court’s directions 6. With the concurrence of counsel for the Applicant, the Court issued directions that the Originating Summons be disposed of by way of adavit evidence and written submissions. In compliance with the said directions, the Applicant duly led written submissions dated 27th October 2025 in support of his case. Analysis of Submissions 7. In the written submissions, it is contended that the Applicant has fullled all the requisite and essential conditions for establishing a claim of adverse possession. This is demonstrated by his open, continuous, and exclusive occupation of the suit property for a period of twelve years, without permission, secrecy, or interruption. Regarding the element of actual possession, the Applicant reiterates that, from his youth to the present, he has actively resided on the property, constructed his home, engaged in cultivation, and conducted his daily life thereon. These activities have been visible, open, and wellknown to the local community and relevant authorities. The Respondent’s prolonged inaction, it is argued, evidenced acquiescence and an eective abandonment of ownership over the suit property. 8. It is further contended that the Applicant’s forty years of actual, continuous, and peaceful occupation of the suit property, without the permission of the Respondent or any third party, demonstrates that he has exercised absolute control over the property. Reliance is placed on Ruth Wangari Kanyagia v Josephine Muthoni Kinyanjui [2017] eKLR, to support the submission that the Respondent’s prolonged silence and inaction constitutes abandonment of title, which has been extinguished by the Applicant’s adverse possession. The Applicant emphasizes that his activities on the suit property— including residing, cultivation, and construction of permanent structures—were undertaken without the consent, license, or indulgence of the Respondent. Moreover, as his entry and occupation were neither by force nor in secrecy nor with permission, it is submitted that his possession was adverse to the true owner’s title. This argument is reinforced through reference to various judicial authorities. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18607/eng@2025-12-18 2

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9. Reliance is placed on Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another [2015] eKLR, to contend that the transfer of title of the suit property from the name of the previous registered proprietor into the Respondent’s name did not disrupt the Applicant’s occupation and possession. It is submitted that the Respondent’s failure to assert ownership or evict the Applicant, despite his continuous and uninterrupted occupation for over forty years, amounts to abandonment and has the eect of extinguishing the Respondent’s title by operation of law. The Applicant further asserts that there is no documentary evidence demonstrating that the Respondent initiated any legal proceedings or took any eective steps to assert ownership of the suit property. 10. The Applicant urges the Court to grant his claim for adverse possession, noting that it has never been challenged or disputed by the Respondent. He submits that he has satised all the requisite criteria for establishing adverse possession. The Applicant contends that the Respondent’s prolonged silence and inaction over several decades demonstrates a discontinuation of possession and amounts to an abandonment of ownership over the suit property. Issues for determination 11. Upon a careful examination of the Applicant’s pleadings, the supporting documentary evidence, and the submissions led by his counsel, the central issue for determination is whether the Applicant has met the threshold to be declared an adverse possessor and thereby be recognized as the duly registered owner of L.R. Kajiado/Kaputei North/11612. Determination 12. The legal framework governing the doctrine of adverse possession in Kenya is primarily encapsulated in Sections 7 and 13 of the Limitation of Actions Act (Cap. 22). Under these provisions, a claimant seeking recognition of proprietary rights over land through adverse possession must establish certain conditions. These include continuous occupation and possession of the property for a period of at least twelve years, which serves to extinguish the original proprietor’s rights. Additionally, the proprietor must have been aware that the adverse possessor has exercised peaceful possession of the property throughout the twelve-year period. These principles were comprehensively summarized in the Court of Appeal decision in Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] KECA 942 (KLR) as hereunder; “ A person who claims adverse possession must inter alia show: 13. a. on what date he came into possession. b. what was the nature of his possession? c. whether the fact of his possession was known to the other party. d. for how long his possession has continued and e. that the possession was open and undisturbed for the requisite 12 years.” The Court of Appeal in Ndolo v Kitutu & 8 Others [2022] KECA 1289 (KLR), elucidated the requirements for a successful claim of adverse possession, providing guidance on the criteria an applicant must satisfy to establish entitlement to land through this doctrine. “ For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted use of the land. The physical fact of exclusive possession and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18607/eng@2025-12-18 3

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the animus possidendi to hold as owner to the exclusion to the actual owner are important factors in a claim for adverse possession. The principles stated in the above holding are also encapsulated in the local legislation referred to elsewhere in this judgment. The direct import of these two provisions is, rstly, that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued, which is the date of dispossession. Secondly, after the expiration of the said twelve years the title of the registered owner shall be extinguished. Thirdly, the person in adverse possession is entitled to a title by possession.” 14. Similar principles were echoed in Samuel Kihamba v Mary Mbaisi [2015] KECA 853 (KLR), wherein the Court held that: “ 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. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land.” 15. The Applicant submits that his continuous and uninterrupted possession and occupation of the suit property for over twelve years has never been challenged or opposed by the Respondent or any third party. 16. In Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another [2015] KECA 728 (KLR), the Court of Appeal emphasized that, in addition to the fundamental requirements set out in Sections 7 and 13 of the Limitation of Actions Act, a claim for adverse possession must be founded on the premise that the disputed property is registered in the name of the Respondent. The Court specically held that:“ ...beyond prescribing the limitation period, the Act does not expressly dene “adverse possession” as a term. Section 13(1) however, provides that a right of action in recovery of land does not accrue unless the land is in the possession of some person whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession). Tied to this, is section 7 of the Limitation Act which bars an owner of a parcel of land from an action to recover it at the expiry of twelve years. From all these provisions, what amounts to adverse possession? First, the parcel of land must be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, lastly, he must have been in that occupation for a period in excess of twelve years having dispossessed the owner or there having been discontinuance of possession by the owner.” 17. An ocial search conducted and certied on 9th November 2023, marked ‘JTM 5’ conrms that the suit property is registered in the name of the Respondent since 10th June 2003. 18. In view of the foregoing statutory provisions and judicial authority, including Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] KECA 248 (KLR) and Mtana Lewa v Kahindi Ngala Mwagandi [2016] KECA 544 (KLR), and the uncontroverted evidence by the Plainti, I am satised that the Applicant has established his entitlement to the suit property title through adverse possession. 19. Accordingly, I hereby direct and order as follows: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18607/eng@2025-12-18 4

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a. A declaration is hereby issued that the Applicant, Josephat Tumate Mainoya has acquired ownership of L.R. Kajiado/Kaputei North/11612 by virtue of adverse possession by way of adverse possession, having been in open, continuous and exclusive occupation thereof for a period exceeding twelve (12) years. b. An order is hereby issued that the title of the Respondent, Kongoacheke Enterprises Limited, to L.R. Kajiado/Kaputei North/11612 is deemed extinguished under Sections 7 and 17 of the Limitation of Actions Act, and the Applicant be registered as the proprietor thereof. c. An Order directing that Land Registrar, Kajiado, to register the Applicant as the absolute proprietor of L.R. Kajiado/Kaputei North/11612. d. There shall be no orders as to costs. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 18TH DAY OF DECEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Sifuna h/b for Mr. Kinisu for the Plainti (Respondent) N/A by the Respondent Court Assistant: Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18607/eng@2025-12-18 5

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