Bundi & 4 others v Chelanga & 3 others (Sued as the Personal Representatives and Beneficiaries of the Estate of Ishmael Juma Chelanga-Deceased) (Environment and Land Case 52 of 2019) [2026] KEELC 512 (KLR)

2. The plaintifis support the originating summons through an afidavit sworn by Nicholas Bundi, the 2nd plaintifi, sworn on 15/7/2019, attaching copies of authority to act, signed by the plaintifis on 16/7/2019, a copy of a title deed issued to Ishmael Kiplagat Juma Chelanga on 13/2/1992, a copy of death certificate of the late Grace Bosibori Njoga, late James Bundi Nyairo, agricultural report serial No. 21818, boundary dispute summons dated 11/2/2005, chief’s letter dated 5/7/2019, copy of search, grant of letters of administration issued on 15/11/2019, rectified confirmed grant on 22/11/2011, with respect to the estate of the late Ishmael Juma Chelanga to the defendants. 3. The originating summons was also supported by a list of witness statements and a list of documents dated 4/12/2019 and 3/12/2019, respectively. 4. At the hearing, the plaintifis called Nicholas Bundi, John Mogaka Bundi, Pamina Juma, and Copernicus Mutoka as PW1, 2, 3, and 4. PW1, 2, 3, and 4 relied on their witness statements dated 27/11/2019, 8/12/2019, 5/12/2019, and 4/12/2019, respectively. 5. On his part, PW1 produced as plaintifis’ exhibits a copy of a title deed for Kapkoi/ Mabonde Block 1/Ex-Prison/206, a death certificate for his late parents, a photograph showing developments on the land, a copy of verification serial number 31818, summons from the Land Registrar, chief’s letter dated 5/7/2019, a copy of the confirmed and rectified grants as P. Exhibits No. (1) – (9), respectively. 6. In cross-examination, PW1, 2, 3, and 4 were all consistent that the plaintifis and their late parents' entry into the suit land was with efiect from 2000 or thereabouts, which they have developed with the full knowledge of the registered owner(s). PW1, 2, 3, and 4 told the court that at no time did the defendants enter the suit land to drive them out, or stop the developments therein, save for two attempts by one Andrew to visit the land. 7. Further, PW1, 2, 3, and 4 told the court that the plaintifis’ use, possession, and occupation of the suit land was open, uninterrupted, continuous, and exclusive. 8. In response to the originating summons, the defendants relied on a replying afidavit sworn by Shamira Chepkemei Chelanga, the 1st defendant, on 11/9/2019, on behalf of the rest of the defendants. The defendants admit that the suit land remains registered in the name of Philomen Chelanga, now deceased, as constituting one of the properties of the deceased’s estate, to which the 1st defendant is one of the legal administrators. 9. The defendants aver that before 1992, one Francis had been appointed as a caretaker to the suit land, and with efiect from 2000, one James Nyairo was allowed to come into the land and took over the house which the former caretaker used to occupy. 10. The defendants aver that to preserve the property, their late mother placed a caution on the register dated 11/8/2000, attached as SCC-(1), which has not been lifted or altered to date. The defendants aver that the plaintifis' burying their kin on the land does not confer any special right to them, since there is no property in a dead person. 11. Again, the defendants deny that the plaintifis have put up any structures on the suit land; otherwise, if any, they were temporary in nature and done with the consent of the deceased owner. The defendants blame the plaintifis for being ungrateful and out https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/512/eng@2026-02-02 2

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to take advantage of their benefactor’s generosity. The defendants urge the court, in the interest of justice and morality, to find the claim lacking merit. 12. At the hearing, the defendants did not attend to ventilate their defence. 13. The plaintifis rely on written submissions dated 10/3/2023, isolating four issues for determination. Reliance is placed on Chevron (K) Ltd -vs- Harrison Charo Wa Shutu [2016] eKLR, Section 7 of the Limitation of Actions Act, Cap 22, Jacob Mwanto Wangora -vs- Mary Waruga Wokabi & Others [2018] eKLR as cited in Samwel Nyakenogo -vs- Samwel Orucho Onyaru [2010] eKLR. 14. The defendants rely on written submissions dated 29/2/2023, isolating five issues for determination. It is submitted that the plaintifis’ witnesses and the evidence do not support the claim, since the caution placed on the suit land was an act that the registered owner was asserting ownership. Reliance is placed on Ahmed Suleiman & Another -vs- Noor Khamis Surur [2023] eKLR, Mtana Lewa -vs- Kahindi Ngala Mwagandi [2005] eKLR, Public Trustees -vs- Wanduru Ndegwa [1924] eKLR, and Tabitha Waithera Kimani -vs- Joshua Nganga [2017] eKLR. 15. The issues for my determination are: 16. a. Whether the plaintifis have met the ingredients of adverse possession. b. If the plaintifis are entitled to the reliefs sought. c. What is the order as to costs? In M’Riria & 5 Others -vs- Muthomi Civil Appl. NO. 253 of 2019 [2025] KECA 951 [KLR] (4th April 2025) (Judgment), the court held that the ingredients of adverse possession are: a. Ownership of the land by the person against the claim is made. (b) Open, continuous, and exclusive possession of the land by the claimant for 12 years. (c) Assertion of rights by the dispossessor by inconsistent acts to the right of the true owner. See also Mbira -vs- Gachuhi [2002] 1 EALR 137. 17. Adverse possession, therefore, sets in when a person takes possession of land and asserts a right over it, and the true owner, having title, neglects or omits to take action against such a person for 12 years. See Mtana Lewa (supra). 18. Adverse possession in Kenya is governed by Sections 7, 13, and 38(1) of the Limitation of Actions Act, Section 28 of the Land Registration Act and Article 40 of the Constitution to defeat a title of a registered owner, after 12 years of inaction and use of the land by the intruder through acts inconsistent with the intended use by the true owner. For such a case to succeed, the person in possession must have a peaceful and uninterrupted use of the land. 19. In this suit, the plaintifis plead, testify, and submit that they entered into the land without permission or authority of the true owner in 2000 or thereabout. 20. The physical facts of exclusive possession and the animus possidendi to hold as the owner to the exclusion of the actual owner, as held in Ndolo -vs- Kitutu & Others https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/512/eng@2026-02-02 3

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Civil Appeal No. 294 of 2018 [2022] KECA 12891 [KLR] (18th November 2022) (Judgment), have to be established in a claim for adverse possession. The court held that the direct import of the cited provisions of the law are the person dispossessed of land cannot bring an action to recover the land after 12 years from the date on which the right to action accrued, which is the date of dispossession, and that after the expiration of the 12 years, the title held by the true owner stand extinguished. 21. In Jandu -vs- Kirplal & Another [1975] EA 225, what constitutes adverse possession was said to mean possession by a person holding the land on his own behalf, and while in possession, the statue is set running, and it continuous to run for 12 years, with no action, afiective entry, or otherwise the title of the true owner become extinguished, and the intruder becomes the owner. 22. In Samuel Kihamba -vs- Mary Mbaisi [2015] eKLR, and in Wambugu -vs- Njuguna [1983] [KLR] 171, the ingredients to establish are: open occupation of the land, without force, without secrecy, and without licence or permission of the land owner, with the intention to have the land. Therefore, from the case law cited, two key elements are to be established: dispossession and discontinuance of, which has remained there until the 12 years expired, undertaking adverse acts on it as per the photograph, with the knowledge of the true owner, openly, and with the intention to own the land as of right. 23. In Richard Wefwafwa Songoi -vs- Ben Munyifwa Songoi [2020] eKLR, the court held that a claimant must show that the occupation was peaceful and uninterrupted, with physical facts of exclusive possession, and the animus possidendi. 24. Exclusivity of possession must be proved by the claimant. Evidence of joint use by the claimant and other people has not been shown by the defendant. The plaintifis have identified the land under their exclusive use. The defendants have not denied that for 12 years, they have not made an efiective entry, use, and occupation of the land. See Wilson Kazungu Katana & 101 others -vs- Salim Abdalla Bakshwein & Another [2015] eKLR. 25. Apart from the caution registered by the late mother to the defendants, there is no evidence of an efiective entry, notice to vacate the land, and legal action for repossession made to drive out the intruder. 26. In Alfred Welimo -vs- Mulaa Sumba Barasa CA No. 186 of 2011, the court held that adverse possession is not merely established by the abandonment of the land, but must be coupled with the intention to possess. 27. In this suit, the plaintifis' late parents, after their demise, were interred on the suit land with no objection to the same by the true owner(s). 28. In Maweu -vs- Liu Ranching & Farming Cooperative Society Ltd[1985] eKLR, the court held that adverse possession is a fact to be observed upon the land. Further in Githu -vs- Ndeete [1984] KLR 776, the court held that the mere change of ownership to a legal representative does not interrupt adverse possession. 29. Time for adversity in this case began running during the lifetime of the late Ishmael Chelanga, during the lifetime of his successors in title, the wife, and it currently afiects the defendants, since adverse possession is part of overriding interests, which a title https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/512/eng@2026-02-02 4

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deed is subject to. Therefore, the time that has begun to run is stopped when the true owner asserts his right or when his right is admitted by the adverse possessor. 30. In Joseph Gachumi Kiritu -vs- Lawrence Munyambu Kabura [1996] eKLR, the court held that assertion of right occurs when the owner takes legal proceedings or makes an efiective entry into the land. Further, the court held that a peaceful and efiective entry or a suit for recovery of land is what is required. See also Andafu -vs- Akhulunya Civil Appeal 70 of 2019 [2015] KECA 714 [KLR] (25th April, 2025). 31. In this suit, the defendants have not tendered evidence to substantiate the contents of the replying afidavit that the late John Tengea or the plaintifis were mere licences or permitted tenants on the suit land. Evidence of the terms and conditions of the licence or tenancy has not been provided. Evidence of notice to vacate or admission of the superior rights of the defendants by the plaintifis is also missing. Placing caution on the title register was not enough. See Maina -vs- Langat & Others Civil Appeal No. 21 of 2016 [2025] KECA 75 [KLR] (24th January 2025). 32. The upshot is, I find the suit proved to the required standards. The plaintifis are declared owners of Title No. Kapkoi/Mabonde Block 1/Ex-Prison/206, by virtue of adverse possession. 33. The defendants, as the legal representatives of the estate of the late Ishmael Juma Chelanga, are directed to sign the transfer forms for the same to the plaintifis within 2 months from the date hereof. In default, the Deputy Registrar of the court to efiect the transfer in favour of the plaintifis. The costs of the transfer and registration to be met by the plaintifis. There will be no order as to costs. 34. Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 2ND DAY OF FEBRUARY 2026. In the presence of: Court Assistant - Dennis Miss Njambi for the plaintifis Miss Rotich for the defendants 1st plaintifi present 2nd plaintifi absent 3rd plaintifi absent 4th plaintifi absent 1st defendant absent HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/512/eng@2026-02-02 5

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