Kiunjuri v Nyahu & another (Land Originating Summons E005 of 2023) [2026] KEELC 4181 (KLR)

price to Kshs 120,000/=. Yet again, on 15-4-2002, the two parties amended the size of the land to 0.4 acres. Secondly the Plaintifi and his late wife took possession of the suit land on 13-9-1999. Since then, they have been in continuous and uninterrupted occupation of the land to date. The land that the Plaintifi and his late wife bought was clearly marked out by the vendor. Thirdly, the Plaintifi’s wife died on 25-1-2022 before the suit land could be transferred to her. The Plaintifi has been appointed the administrator of her estate. Fourthly, in April 2023, the 1st Defendant purported to fence the parcel occupied by the Plaintifi in an attempt to evict him. When he applied for a certified copy of the register, he found out that the land that he occupies has been divided into two and the first Defendant was registered as the owner on 6-4-2022 vide Succession Cause No. 33 of 1990. The land had been subdivided into two parcels being numbers Loc.12/Sub-Loc.1/3577 and 3578. On 22-12-2022, the portion occupied by the Plaintifi had been transferred to the second Defendant. Finally, on 19-4-2023 before filing this suit, the Plaintifi wrote a demand letter to the 1st Defendant demanding 1 acre of land. 3. 4. In support of his case, the Plaintifi filed the following evidence. 1. Supporting afidavit dated 1-8-2023. 2. Witness statement dated 1-8-2023. 3. Copy of limited granted dated 14-6-2023 issued in Kangema Succession Cause No. E065 of 2023. 4. Copy of certificate of death of Jane Wangari B. Kihara dated 27-5-2022. 5. Copies of sale agreements dated 13-9-1999, 3-12-1999 and 15-4-2002. 6. Copy of letter dated 19-4-2023. 7. Copies of register for L.R. No. Loc.12/Sub-Loc.1/1567, copy of map and certificate of oficial search for L.R. No. 3578. 8. Five(5) photographs showing a recently fenced parcel of land with napier grass growing thereon. 9. Copy of register running from 14-9-1999 to 17-10-2008 showing various amounts received by Peter Kimani. The summons is opposed by the Defendants and the first Defendant has sworn a replying afidavit dated 22-9-2023 in which he responds as follows. One, even though the limited grant dated 14-6-2023 is for filing a suit against the first Defendant only, this suit is also against the second Defendant. Two, the three sale agreements dated 13-9-1999, 3-12-1999 and 15-4-2002 allege that the deceased wife of the Plaintifi bought three(3) difierent parcels. Three, L.R. No. Loc. 12/Sub-Loc.1/1567 was initially registered in the name of Egilah Wanjiku – deceased on 24-6-1983 and the first Defendant became registered as owner on 6-4-2022. This makes the sale agreements void and of no legal efiect because L.R. No. 1567 related to the estate of a deceased person and the Applicants have therefore admitted intermeddling with the estate contrary to Section 45 of the Law of Succession Act. Four, L.R. Nos. Loc.12/Sub-Loc.1/3577 and 3578 are subdivisions of L.R. 1567 and L.R. No. 3578 is registered in the name of the second Defendant and it is not true that her title has been extinguished by limitation. Five, the first Defendant has been utilizing the two parcels for agriculture purposes and the Plaintifi, if at all he utilized the land did so as a mere licencee. Six, the Plaintifi has not demonstrated that he has been in open, continuous and exclusive use of the suit property for a period in excess of 12 years to warrant the Court to issue the orders sought in the originating summons. Seven, from annexure BKK-7, it is clear that L.R. No. 3578 measures 0.12 Ha. which is difierent from the acreages of 0.5, 0.4 and 0.3 being https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4181/eng@2026-07-08 2

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claimed by the Applicant. For the above stated reasons, the Defendants pray for the dismissal of the originating summons with costs to the Defendants. 5. In support of their defence, the Defendants filed the following evidence. i. Replying afidavit dated 22-9-2023. ii. Witness statements by the first Defendant and Wanjohi Murukwa. iii. Copy of title deed for L.R. No. Loc.12/Sub-Loc.1/1567. iv. Four photographs showing trees and napier grass growing on a fenced parcel of land. v. Copy of certificate of confirmation of grant in Nairobi High Court Succession Cause No. 318 of 1999. vi. Copies of register for L.R. No. Loc.12/Sub-Loc.1/2614, 2615 and 2616 all in the Jane Wangari B. Kihara. 6. At the trial on 16-7-2025 and 12-5-2026, only the Plaintifi and the 1st Defendant testified and produced the documentary evidence that they had filed. Both of them reiterated their cases as per their pleadings. The only deviation by the first Defendant was that he received only Kshs, 40,000/= for the suit land and the balance of Kshs. 160,000= was never paid to him. He was to refund this amount but the Plaintifi sued him before he could efiect the refund. 7. Counsel for the parties filed written submissions dated 4-6-2026 and 29-6-2026 respectively. The issues identified are as follows. a. Whether the Plaintifi has established a claim for adverse possession. b. Whether the alleged sale agreements conferred any legal or equitable interest. c. Whether the 2nd Defendant is properly joined in this suit. 8. I have carefully considered the evidence adduced in this case by both sides including the two Afidavits, the witness statements, the documents and the testimony at the trial. I have also considered the written submissions by learned counsel for the parties, the issues identified and the law cited in the submissions. I find that the issues as identified will resolve the dispute. 9. Looking at the first issue, it is not clear when exactly the Plaintifi’s occupation of the suit land became adverse to the title by the Defendants or their predecessor in title. The Plaintifi’s wife’s occupation of the suit land on 13-9-1999 was with the first Defendant’s permission. The burden was on the Plaintifi to prove exactly when time started running. The sale agreement dated 13-9-1999 states as follows in part. “ That an advance payment of Kshs. 40,000/= has been paid to Mr. Kimani. The other balance will be paid when Kimani receives the title deed in his names and the after transfer, consent from the Land Control Board.” In his evidence as well as the pleadings, the Plaintifi lacks clarity as to when his occupation of the suit land became adverse to the title of the Defendants or their predessor in title. Such a clarity is necessary because if the original entry is with the permission of the Defendant, then all the ingredients of adverse possession are not proved. As correctly stated by the Defendants’ counsel all the ingredients of adverse possession must be proved by the Plaintifi. They include open, exclusive, continuous and uninterrupted occupation of the specific parcel for at least 12 years. The occupation must be without https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4181/eng@2026-07-08 3

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the permission of the registered or equitable owner. It must be non-permissive. In this case, the occupation was with the permission of the Defendant until April 2023 when the permission of the first Defendant was withdrawn. In the case of Wambugu vs. Njuguna Civil Appeal No. 10 of 1982 it was held as follows. “ Where the claimant is in exclusive possession of the land with leave and licence of the owner in pursuance of a valid agreement the possession becomes adverse and time begins to run at the time the licence is determined. Prior to the determination of the licence the occupation is not adverse but with permission.” The Plaintifi’s occupation of the suit land from 13-9-1999 to April 2023 having been with the permission of the 1st Defendant defeats his claim for adverse possession. 10. Regarding the second issue, I find that sale agreements confer some legal and equitable interests over the suit land especially because the Defendant has not filed any counter claim alleging breach of the sale agreement by the Plaintifi. It is however noteworthy that the said agreements were strictly between the Plaintifi’s late wife and the first Defendant. The Plaintifi himself was not even a witness to the sale agreements. It is therefore the first Defendant who is a firsthand witness to the agreements. He is therefore more credible as a witness than the Plaintifi especially when he says that he received only Kshs 40,000/= and not the full purchase price. 11. Regarding the final issue, I find that the limited grant dated 14-6-2023 is very specific on who it relates to. It states in part, “ Limited for purposes of filing suit against Peter Kimani Nyahu.” There is therefore no limited grant in respect of the second Defendant. The second Defendant is therefore not properly sued in this case. The Plaintifi lacks the requisite authority to sue her. 12. One final issue remains to be resolved and it is what happens to the Kshs. 40,000/= which the first Defendant wished to refund to the Plaintifi. I find that the said amount should be refunded to the Plaintifi by the first Defendant. Since the Plaintifi and his late wife have benefited from the suit land for all those years, the Plaintifi is not entitled to interest. 13. In conclusion and for the reasons given, I order as follows. a. The Plaintifi’s suit is dismissed. b. The first Defendant to refund Kshs. 40,000/= to the Plaintifi. c. No order as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 8TH DAY OF JULY, 2026. M. N. GICHERU JUDGE Delivered online in the presence of:Court Assistants – Antony and Jackline Plaintifi’s Counsel – Mr. Kimani https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4181/eng@2026-07-08 4

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Defendants’ Counsel – Mr. Mbue Ndegwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4181/eng@2026-07-08 5

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