Wambua v Ngilai (Enviromental and Land Originating Summons E002 of 2023) [2026] KEELC 3890 (KLR)

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. (2) 4. An order made under subsection (1) of this section shall on registration take efiect subject to any entry on the register which has not been extinguished under this Act.” And section 37 of the Limitations of Actions Act Cap 22 states as follows: ‘This Act applies to land registered under the Government Lands Act (Repealed), the Registration of Titles Act (Repealed), the Land Titles Act (Repealed) or the Registered Land Act (Repealed), in the same manner and to the same extent as it applies to land not so registered, except that— (a) 5. where, if the land were not so registered, the title of the person registered as proprietor would be extinguished, such title is not extinguished but is held by the person registered as proprietor for the time being in trust for the person who, by virtue of this Act, has acquired title against any person registered as proprietor, but without prejudice to the estate or interest of any other person interested in the land whose estate or interest is not extinguished by this Act;’’ The law in respect to adverse possession is now settled. For a party to succeed in a claim of adverse possession he/she must satisfy the following criteria stated in the case of Maweu vs Liu Ranching and Farming Cooperative Society 1985 KLR 430 where the Court held; Thus, to prove title by adverse possession, it was not suficient to show that some acts of adverse possession had been committed. It was also to prove that possession claimed was adequate, in continuity, in publicity and in extent and that it was adverse to the registered owner. In law, possession is a matter of fact depending on all circumstances”. 6. I am also guided by Samuel Miki Waweru vs. Jane Njeru Richu, Civil Appeal No. 122 of 2001, the Court of Appeal delivered the following dictum: …it is trite law a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in (accordance with) provisions of an agreement of sale or lease or otherwise. Further, as the High Court correctly held in Jandu v Kirpal [1975] EA 225 possession does not become adverse before the end of the period for which permission to occupy has been granted.” 7. The copy of the search title annexed as AMW 7 dated 3rd October 2022 shows that Wyclifi Musyoka Ngilai is the registered owner of Wamunyu/Kilembwa/84. PW1 testified that he is in possession of the suit land and does horticulture there. That he has been in occupation of the suit land since the 1980’when he bought it. He has produced photos of the land as exhibits. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3890/eng@2026-06-23 2

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8. The Defendant testified that he does not know the Plaintifi. That the Plaintifi was the previous owner of the suit land which was registered in his name inon the 20th1st march 1974. He stated that the Plaintifi secured a loan of Kshs. 300,000/= from the Kenya Commercial Bank and used the property as a collateral. The charge was registered on the 16th June 1989. The Plaintifi defaulted in repayment of the said loan and the land was sold through a public auction on the 19th October 2005. The Defendant was declared the highest bidder and purchase the same for kshs. 210,000/=. He maintains that the Plaintifi is not on the suit land and that he is the one in possession. 9. The law and requirements for adverse possession was reiterated in the case of Mbira vs Gachuhi, (2002) IEALR 137 where it was held that: ……. a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutory prescribed period without interruption….” 10. The Plaintifi stated that he bought the land and has been in possession from the 1980s. PW2 stated that he is the Plaintifi’s caretaker and lives there. Nevertheless, the testimony of the Plaintifi’s is not corroborated by the evidence. 11. In the instant matter, the Defendant contends that he bought the suit land in a public auction and that the Plaintifi is currently not in possession of the suit property. In a claim for adverse possession, the non-use of the property by the owner even for a long period of time will not afiect his title. The position will only be altered when another person takes possession of the property and asserts a right over it. 12. I find that the Plaintifi did not produce any evidence showing that he took open, exclusive and uninterrupted possession save for photos of vacant land. Indeed, the Plaintifi does not dispute the loan to the bank. I find that the Plaintifi has failed to prove his case on a balance of probabilities and I dismiss it. Cost generally follow the event under section 27 of the Civil Procedure Act and hence the Plaintifi is to bear the costs of this suit. 13. It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 23RD DAY OF JUNE 2026. N.A. MATHEKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3890/eng@2026-06-23 3

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