Mutata (Legal representative to the Estate of Mutata Muli Ndolo aka Mutata Muu) v Mutiso (Enviromental and Land Originating Summons E009 of 2023) [2026] KEELC 216 (KLR)

3. c. An order of permanent injunction does issue, restraining the defendant, whether by himself, his wife, children, agents, servants, or anyone acting under his instructions, from entering upon, interfering with, occupying, evicting, alienating, subdividing, or in any way interfering with the deceased plaintifi’s occupation and use of the suit property. d. Costs be provided for. On service, the defendant filed a replying afidavit in opposition to the OS, sworn on 22/10/2024. Alexander subsequently made a brief rejoinder through his supplementary afidavit deposed on 19/12/2024. Thereafter, pre-trial directions were issued, and the case proceeded by viva voce evidence, with the parties involved presenting their respective evidence. Notably, all these afidavits by the various parties were accompanied by annexures. Hearing and evidence 4. The hearing commenced on 11/06/2024, with Alexander testifying as PW1. The plaintifi also produced documents to substantiate his case, marked as Pex. 1-3, which included letters of representation of the deceased plaintifi’s estate, a certificate of oficial search of the suit property, and a bundle of photographs. Concerning the defendant, he testified as DW1, and Raphael Mutisya Kieti led his evidence. Supporting documents were also produced, marked as Dex. 1-6. Furthermore, all witnesses relied upon witness statements, afidavits, and oral testimonies, as applicable. 5. Alexander testified that the deceased plaintifi and his family had, for a period of forty-one to forty-two years or since time immemorial, fully occupied the suit property and engaged in farming and grazing activities without interference. Since acquiring the suit property, the defendant had never occupied or constructed upon it, or had he evicted them. 6. It was his evidence that the deceased plaintifi had seven children, the majority of whom had left the household. Only his siblings, Kavindyo and Joseph Mutuku Mutata, remained at the residence, which was situated on a parcel of land adjacent to the suit property. Both siblings were over 60 years old, given that the afiant, the youngest child, was 60. He (Alexander) vacated the family residence in 1984 and had since made only occasional visits to his parents. He was unaware that the suit property was never their family land, and one of the photographs showed his mother and a worker ploughing it. 7. In his testimony, the defendant asserted he acquired the suit property measuring 9.2 hectares from Munywoki Muli in 1982, who was a brother of the deceased plaintifi. Upon purchase, indigenous trees and natural vegetation grew thereon, and the deceased plaintifi had never been in adverse occupation of the same. In October 2019, Mutuku Muteta and Kioko Muteta, the sons of the deceased plaintifi, unlawfully entered the suit property and clandestinely cut down indigenous trees for charcoal burning. 8. Consequently, through letters dated 4th February 2020 and 22nd February 2020, the matter was reported to the assistant chief and the village elders, after which both parties refrained from further cutting of trees. In November 2023, he found that Kioko Muteta had cultivated a small area on the suit property and warned him about trespassing. Muteta asked to harvest his crops before leaving, and he was inclined to permit it. Shortly thereafter, this suit was filed. 9. He made considerable efiorts to elucidate the inconsistencies within his documents. It was revealed that his purported letter to the Assistant Chief at Itikoni Sub-Location, dated 4/02/2020, and another addressed to the Chief of Kathama, dated 22/02/2020, were unsigned and lacked an acknowledgement stamp. He also had dificulty articulating the contents of this correspondence. Moreover, he stated that at various times, he had harvested trees on the disputed property with his workers' assistance. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/216/eng@2026-01-27 2

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10. DW2, a registered valuer, relied on his valuation report dated 27/03/2024. Significantly, the report included aerial photographs of the suit property sourced from Google Maps and another taken by an expert. He stated that the boundaries of the suit property could only be definitively established by a surveyor. Significantly, the report noted the land was vacant and undeveloped, with no buildings or structures; however, it also indicated that approximately half an acre of the land was cultivated with cowpeas. 11. Although the photos did not clearly depict the cultivated area, as most of the image showed shrubs and trees on the suit property, he stated that the cultivated portion was very small and located adjacent to a house neighbouring the suit property. He also mentioned that during the visit, he was unable to physically enter the suit property due to the thick, overgrown bush, which was covered with thorns. Submissions 12. After the hearing concluded, the parties filed written submissions, which were received from the law firm of Ms Pius M. Muli & Associates Advocates representing the plaintifi, dated 8/07/2025, and from the Kihara & Wyne Advocates dated 26/09/2025. Therefore, in its analysis and determination, the judgment will carefully consider the arguments presented in the rival submissions, along with the relevant law and judicial precedents cited. Issues for determination, Analysis, and Determination 13. Accordingly, after a thorough review of the pleadings, evidence, applicable law, and jurisprudence, the singular issue requiring this court’s adjudication, as emphasised in the submissions of both parties, pertains to whether the deceased plaintifi’s claim satisfies the threshold for adverse possession. 14. The legal foundation concerning adverse possession is statutorily established within our Limitation of Actions Act. The pertinent provisions are located in Sections 7, 13, and 38 thereof, and they provide as follows: Section 7 provides that: “ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” Section 13 states that: “ “ (1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/216/eng@2026-01-27 3

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(3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3) of this Act, the land in reversion is taken to be adverse possession of the land.” Lastly, Section 38 (1) elucidates that: “ (1) 15. Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” The principles of law on adverse possession are settled in Kenya, and the onus is usually on the adverse possessor to strictly prove all the elements of adverse possession to the required standards. It must be emphasised that claims of adverse possession are factual matters observed on the land. The guiding principles were clarified in the decision of Mwagandi v Lewa [2025] KECA 1036 (KLR), which stated thus: “ As explained by Makhandia JA in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve [12] years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms:-“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 16. Having laid the law and guiding principles, we shall now proceed to test these principles against the facts as presented by the witnesses. On the first test of registration status of the land and considering the relevant law and jurisprudence, specifically Sections 17 and 37 of the Limitation of Action Act, adverse possession is efiective against the title; consequently, such claims must be brought against the registered owner or his legal representatives. This criterion was satisfied, as evidenced by the oficial search certificate, which corroborated the uncontested evidence that the defendant was the registered owner of the suit property. 17. As for the other ingredients, this court faced a challenge as Alexander continually altered the alleged time of entry, fiuctuating between 41 and 42 years ago or claiming an indefinite period. According to the evidence, he departed from the locality of the suit property in 1984, which was 39 years prior to the filing of the suit. 18. He testified that since he lived in Mombasa, he would occasionally visit the family home, which was not within the suit property but on an adjacent property; however, the alleged purported occupants of the family home, who were his siblings, Kavindyo and Joseph Mutuku Mutata and his mother, who allegedly tilled the suit property as contended in the photographs, were not called to testify. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/216/eng@2026-01-27 4

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19. The evidence of these particular witnesses who would know the day-to-day activities of the suit property that would have been corroborated by neighbours, demonstrating that the deceased plaintifi occupied the suit property continuously, publicly, visibly, and exclusively and to an extent to show that possession is adverse to the title owner, would have suficed, but that was not so. 20. To this court’s mind, the credibility of Alexander's evidence is questionable, given his infrequent visits to the vicinity of the suit property and his failure to personally verify the continuous use of the property by his family. Furthermore, this court finds that it has been unable to ascertain the precise time when the deceased plaintifi entered the suit property, as the evidence presented was vague and contradictory. Furthermore, in this court’s considered opinion, Alexander could not rely on the defendant’s letters to the chief and assistant chief to support his claim regarding occupancy, as these letters were unsigned and unstamped, thus rendering them unreliable. 21. The disputed property is extensive, measuring 9.2 hectares, and to substantiate occupancy, Alexander provided photographs depicting seasonal crops and cows and goats grazing on shrubby land. All these agricultural activities are seasonal, as herds of cattle and goats typically wander while grazing, implying that they do not remain in a fixed location unless they are zero-grazed or confined to feedlots. There is no evidence indicating the existence of a cow or goat pen to substantiate that these animals were indeed kept on the suit property. Regarding the food crops, there are no records of a granary or structure used to store farm implements for ploughing the land or to stock farm produce, which would be located on the suit property. 22. Accordingly, it was incumbent upon Alexander to submit documentary evidence regarding the farm produce collected from the suit property over several years; however, such evidence was not provided. Moreover, there is no evidence to indicate that the suit property was enclosed by fencing, which would have buttressed the deceased plaintifi’s claim of adverse possession. 23. The evidence provided by the defendant is also deemed unreliable concerning his activities on the suit property, as it was rife with contradictions and appeared to have been fabricated. Nevertheless, the Google Maps image submitted by the DW2, an expert valuer, was corroborated by physical photographs of the suit property and a site inspection, which revealed that the entire suit property, except for ½ acre at the boundary, was covered with shrubbery and natural trees. This court finds this evidence was consistent, substantiated and credible. This dispelled Alexander’s line of evidence that the deceased plaintifi occupied the entire suit property. 24. Alexander argued that the defendant had never taken possession of the suit property; however, it is trite law that a registered owner's failure to possess his land did not mean that his title had been afiected by a person. To buttress this, this court resonates with Gichomo & another v Kiiru [2025] KECA 124 (KLR), which was relied upon by the plaintifi, and it held: “ In a claim for adverse possession, the owner's non-use of the property, even for an extended period, does not afiect their title. The situation changes only when another individual takes possession of the property and asserts a claim over it.” 25. Accordingly, the absence of the defendant from the suit property did not impact his ownership rights. The plaintifi was required to rigorously demonstrate the elements of adverse possession by providing substantive evidence, which he failed to do adequately, as mere entry onto the suit property cannot be considered suficient to establish adverse possession. 26. Ultimately, given the circumstances and based on the reasons and findings stated above, this court concurs with the defendant and determines that the plaintifi has failed to establish his claim of adverse https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/216/eng@2026-01-27 5

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possession to the requisite standards. Consequently, the plaintifi’s case is hereby dismissed, with costs awarded to the defendant. Judgment accordingly. DELIVERED AND DATED AT MACHAKOS THIS 27TH DAY OF JANUARY, 2026. HON. A. Y. KOROSS JUDGE 27. 01.2026 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant. Mr. Muli for Applicant. No appearance for respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/216/eng@2026-01-27 6

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