Muturi v Njue alias Robert Kariuki Njue (Environment and Land Case E036 of 2021) [2026] KEELC 1985 (KLR)

4. The Defendant opposed the Plaintifi’s claim through his replying afidavit sworn on 15/3/2024. He claimed that on 27/2/2008, he was in secondary school in form 3 and that the agreement exhibited by the Plaintifi was a forgery. He relied on the school leaving certificate dated 12/2/2024 and denied knowledge of the sale agreement. He stated that he knew the Plaintifi in 2013 when he stopped him from constructing on the land. He relied on the demand letter dated 17/2/2016 issued by Kiogora Ariithi Advocates. He maintained that the sale agreement for the suit land was made between the Plaintifi and someone else and that the Plaintifi had no claim against him. 5. The hearing of the suit proceeded on 1/10/2025, when the Plaintifi testified. He told the court that he purchased an acre of land from Kariuki Njue alias Robert Kariuki Njue on 27/2/2008. The agreed purchase price was Kshs. 80,000/=. He stated that he paid Kshs. 60,000/= upon execution of the agreement and that on 4/9/2008, he paid Kshs. 6,000/= leaving a balance of Kshs. 14,000/=. 6. He told the court that in March 2008, he entered the land with his wife, Judith Wangari and they built a permanent house and planted various fruit trees and Napier grass on the land. He stated that the Defendant was to apply for Land Control Board (LCB) Consent but he failed to do so and ran away from home. He told the court that he had fenced the land and had utilized it since 2008. He urged that since the Defendant’s father was a witness in the sale transaction, the Defendant could not claim that he was not there when the transaction was undertaken. 7. On cross-examination, he stated that he did a search before purchasing the land. He knew the Defendant in 2008 when he was selling the land and he also knew that the land belonged to the Defendant. The agreement was drawn in the ofice of Njeru Ithiga Advocate. He stated that a demand letter was served upon him in 2016 but he did not move out of the land. 8. Judith Wangari, the Plaintifi’s wife gave evidence. She confirmed that the Defendant sold them land in 2008. Further, that they took possession of the land in 2008 and have remained thereon to date. On cross-examination, she told the court that she knew the Defendant in 2008 with his father when they sold the land to her husband. She confirmed that they paid Kshs. 60,000/= and Kshs. 6,000/= later, leaving a balance of Kshs. 14,000/= to await the transfer. 9. The Defendant gave evidence and told the court that he was registered as the owner of Evurore/ Nguthi/2435. He learned that he was the registered owner in 2013. He stated that he knew of the Plaintifi in 2013 when he stopped him from erecting a structure on his land. He sent a notice to the Plaintifi in 2016 to vacate the suit land. 10. He denied selling an acre of land to the Plaintifi and added that the value of such a piece of land would have been Kshs. 300,000/= at the time. Further, that subdivision and processing the title would have costed Kshs. 120,000/= which is higher than the purchase price stated in the sale agreement that the Plaintifi produced. 11. He denied entering into any agreement with the Plaintifi over the suit land and reiterated that the agreement was forged because in 2008, he was in school at St. John Kathunguri Secondary School. He added that he had never stepped in the ofices of Njeru Ithiga Advocates. The other issue that he took up was that his name on the sale agreement should have been typed on a computer like the Plaintifi’s and not on a typewriter, which in his view showed that it was a forgery. He asserted that at the time the agreement was drawn, Njeru Iguna was the registered owner of Evurore/Nguthi/2435 and urged the court to dismiss the suit. 12. On cross-examination, he told the court that he was born on 1/10/1987 and that in 2008 he was in school in form 3. He stated that he did not sell land to the Plaintifi in 2008 because at the time he did not know that he owned land. He issued a demand letter to the Plaintifi to vacate the land in 2016 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1985/eng@2026-02-23 2

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but the Plaintifi did not move out of the land. He explained that he did not file suit because he had problems at that time. He did not report the forgery to the police. 13. He confirmed that his father is Anthony Njue Iguna and that his father signed the agreement and the acknowledgement dated 4/9/2008. He also confirmed that his name was on the land register as entry no. 3. He told the court that after High School, he went to look for work in Nairobi. He conceded that the Plaintifi had built on the suit land, was carrying out farming activities and lived on the suit land. He denied taking the Plaintifi’s money and reiterated that he asked the Plaintifi to move out of the land. 14. On conclusion of the hearing, parties filed written submissions, which the court considered. The Plaintifi submitted that his claim was grounded on Sections 7, 17, 37 and 38 of the Limitation of Actions Act, which bar filing of an action for the recovery of land after the expiry of 12 years from the date the right of action accrued to the registered owner. He submitted that the test for adverse possession was actual occupation which is open and notorious. It must be exclusive, continuous and uninterrupted. 15. He submitted that his possession began in March 2008 and that it became adverse when the Defendant failed to obtain the Land Control Board (LCB) consent. He elaborated that the consent as per Section 6 of the Land Control Act should have been obtained within 6 months of the date of the agreement and that time therefore started running from 27/8/2008. He urged that he met the conditions of actual, open and notorious possession as well as hostile and uninterrupted possession. He relied on Maweu v Liu Ranching & Farming Cooperative Society Limited (1995) KLR 430 on the point that a man who buys land without knowing who is in possession of it risks his title just as he does if he fails to inspect his land for 12 years after acquiring it. 16. The Defendant submitted that he was a student at St. John Gathunguri Secondary School and did not have the legal authority to sell the land to the Plaintifi. He argued that the court did not visit the site and no maps or images were produced in court to support the insinuation that the Plaintifi occupied one acre of the suit land. Further, he argued that the Plaintifi could not claim to have acquired the suit land from him while it was registered in the name of Njeru Iguna who was dead at the time of execution of the agreement. 17. The Defendant submitted that there had been several instances of confiict and litigation between the Plaintifi and his family including multiple cases in the Chief’s ofice and criminal cases filed in Siakago Law Courts. According to him, these cases demonstrated that the Plaintifi’s possession of the land was not peaceful or without challenge. He gave details of Criminal Case No. 992/2017- Republic v Silvia Mbura Njue where he claimed judgment was delivered on 21/7/2021 against his mother who was acquitted and Criminal Case No. 972/2023- Republic v Anthony Njue Iguna where judgment was delivered on 24/10/2024. 18. The Defendant submitted that the Plaintifi’s claim of adverse possession is undermined by the fact that the Plaintifi lodged a caution against the suit land on 29/6/2016 which remains registered. He argued that the caution was inconsistent with the claim of adverse possession because it suggested the Plaintifi was seeking to protect his interest in the land rather than asserting ownership hostile to the rights of the registered owner. 19. The Defendant submitted that by serving the notice to vacate the land on the Plaintifi in 2016, he was asserting his right of ownership. That the fact that the Plaintifi did not respond to the notice or file suit to challenge it within a reasonable time undermines his claim. He argued that the Plaintifi’s continued occupation of the land was without lawful authority. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1985/eng@2026-02-23 3

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20. The Defendant submitted that the Plaintifi’s statement contained inconsistencies regarding the purchase price and payment mode. That he initially stated that he paid Kshs. 60,000/= leaving a balance of Kshs. 14,000/= but later claimed that he had paid the full amount. He argued that the Plaintifi failed to prove his claim of adverse possession and that his occupation of the suit land was through violence. He argued that the Plaintifi failed to call the advocate who drafted the agreement as a witness and neighbours to corroborate his allegation of possession and use of the land. The Defendant invited the court to dismiss the Plaintifi’s claim, declare the agreement void due to forgery and order the Plaintifi to vacate the land. He also prayed for the costs of the suit and an order for the Plaintifi to withdraw the caution. 21. The issue for determination is whether the Plaintifi has proved his claim for adverse possession of one acre out of the land known as Evurore/Nguthi/2435. The copy of the land register shows that on 5/3/2008, Anthony Njue Iguna and Kariuki Njue were registered as proprietors of Evurore/ Nguthi/2435. During the trial, the Plaintifi conceded that his father witnessed the sale agreement and signed the Acknowledgment dated 4/9/2009. 22. The Plaintifi claimed that he entered the suit land in 2008 after purchasing it from the Defendant. The Defendant conceded that the Plaintifi had built a house and lived on the suit land, and that he was carrying out farming activities on the suit land. The Defendant did not bring an action for recovery of the suit land as envisaged by Section 7 of the Limitation of Actions Act. From 2008 to 2021 when this suit was filed, the Plaintifi had been on the suit land continuously for 13 years thereby bringing his claim within the ambit of Section 7 of that Act which bars the Defendant from filing an action to recover the land that the Plaintifi occupies. 23. From the evidence adduced, the Plaintifi has demonstrated that he has been in open, notorious and actual occupation of one acre of the land for more than 12 years. Further, he proved that he had been in exclusive, continuous and uninterrupted possession of an acre of land on which he had constructed his home and was carrying out farming activities. 24. The Plaintifi has proved on a balance of probabilities that he has acquired 1 acre out of Evurore/ Nguthi/2435 through adverse possession. The Deputy Registrar of this court will sign the necessary documents to facilitate the transfer of an acre out of Evurore/Nguthi/2435 to the Plaintifi. The Land Registrar will dispense with the need for the production of the original title deed, identity card, passport photographs and KRA PIN from the Defendant in the registration of the Plaintifi as the owner of one acre out of Evurore/Nguthi/2435. The Plaintifi is awarded the costs of the suit. DELIVERED VIRTUALLY AT BUNGOMA THIS 23RD DAY OF FEBRUARY 2026. K. BOR JUDGE In the presence of: Mr. Muriuki Muriithi for the Plaintifi No appearance for the Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1985/eng@2026-02-23 4

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