Nyoro Construction Company Limited v Sugden Limited

this suit and on which he has lived openly and continuously as of right and in adverse possession and without any interruption from the Defendant servants or in its the predecessors or agents or above and that the title Defendant's title to the said parcel of land has been extinguished in favour of the Plaintiff under section 37 and 38 of the Limitation of Actions Act. b. In the alternative, a declaration that the Defendant holds L.R. No. 142942/96 in trust for the Plaintiff herein and the Plaintiff is entitled to have the said parcel of land transferred to him by the Defendant forthwith. c. That the Defendant do transfer L.R. No. 14242/26 to the Plaintiff, and in default, the Deputy Registrar be authorized to do and or sign all documents to effect transfer of LR. No. 14242/26 to the Plaintiff herein. d. An order for costs of this summons. ELC(OS) E009 OF 2024 PAGE 2

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2. The Defendant despite being served by way of substituted service failed to enter appearance or file its response to the summons. 3. On 27th April, 2026, the court directed that the matter proceeds by way of affidavit evidence. 4. The Plaintiff in addition to its supporting affidavit dated 8 th September, 2024, filed a further affidavit filed on 13 th May, 2026 in support of the Originating summons. 5. The affidavits were sworn by one of it’s directors, Josiah Njoroge Njuguna where he stated that the Defendant was the registered owner of parcel of land known as L.R No. 14242/26, the suit parcel herein. 6. He further stated that the Plaintiff has been on the suit property from the year 1996 to date after it purchased portions of it, from one Wilson Kipkeror Kibet and the Defendant on 8 th November, 1996 and 22nd November, 1996 respectively. 7. He stated that the Defendant’s advocate confirmed receipt of the purchase price and forwarded a copy of the title to them. He added that the Defendant has neglected to execute the transfer of the suit parcel in favour of the Plaintiff. ELC(OS) E009 OF 2024 PAGE 3

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8. He stated that the Plaintiff has been enjoying quiet and uninterrupted possession of the suit land with the Defendant’s knowledge for more than twelve (12) years. 9. In conclusion he stated that the Plaintiff had acquired the suit property by way of adverse possession and was therefore entitled to the prayers sought. THE PLAINTIFF’S SUBMISSIONS 10. Counsel for the Plaintiff filed his submissions dated 25 th May, 2026 where he relied on Section 7 and 38 of the Limitation of Actions Act. He also relied on the case of Kasuve V Mwaani Investments Limited & 4 Others 1 KLR 184 and Tabitha Waitherero Kimanu V Joshua Ng’ang’a [2017] eKLR. 11. It was his submission that the Plaintiff purchased the suit parcel in two phases and that there was evidence that the purchase price was paid. 12. Counsel further submitted that the Plaintiff has been in occupation of the suit property and no one including the Defendant has challenged its occupation. ELC(OS) E009 OF 2024 PAGE 4

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13. He submitted that the Plaintiff proved its case on a balance of probabilities having been in continuous and uninterrupted occupation of the suit property for more than 12 years. 14. On costs, counsel relied on Section 27 of the Civil Procedure Act and urged the court to award costs of the suit to the Plaintiff. ANALYSIS AND DETERMINATION 15. I have considered the pleadings, evidence on record and the written submissions and the issues for determination are: 1. Whether occupation and possession by the Plaintiff over the suit property constitutes adverse possession. 2. Who should bear the costs of the suit? 16. The doctrine of adverse possession is founded under Section 7, 13, 37 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Defendant was aware of such. Section 7 of the Act provides as follows: “An action may not be brought by any person to recover land after the end of twelve years from the ELC(OS) E009 OF 2024 PAGE 5

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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 “(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…” 17. In Kasuve V Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove thus; “In order to be entitled to land by Adverse Possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after ELC(OS) E009 OF 2024 PAGE 6

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dispossessing the owner or by discontinuation of possession by the owner on his own volition”. 18. It was the Plaintiff’s case that he has been in in continuous, peaceful and uninterrupted possession of the suit parcel for more than 12 years. The Plaintiff purchased the suit property from the Defendant and despite having paid the full consideration, the Defendant was yet to effect transfer in its favour. 19. In the case of Richard Wefwafwa Songoi V Ben Munyifwa Songoi [2020] KECA 942 (KLR) the court held as follows: “A person who claims adverse possession must inter alia show: (a) on what date he came into possession. (b) what was the nature of his possession? (c) whether the fact of his possession was known to the other party. (d) for how long his possession has continued and (e) that the possession was open and undisturbed for the requisite 12 years.” ELC(OS) E009 OF 2024 PAGE 7

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20. Similarly, the case of Lewa V Mwagandi [2015] KECA 532 (KLR), the court defined what entails adverse possession as follows: “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 license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 21. Additionally, in the case of Public Trustee V Wanduru Ndegwa [1984] KECA 72 (KLR) Kneller JA held as follows: “The position of a vendor and a purchaser of registered land is this. The vendor as the registered owner retains the legal estate and becomes the trustee of it for the purchaser when the purchaser pays a deposit for it. The ELC(OS) E009 OF 2024 PAGE 8

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vendor retains a lien on the property for the balance of the purchase money which disappears when it is paid and the purchaser then becomes the sole beneficial owner and the vendor becomes a bare trustee for the purchaser. If the vendor trustee allows the purchaser cestui qui trust to remain in possession the latter is in adverse possession because the vendor as the absent registered owner always retains the legal estate and this prima facie entitles him to resume possession from the purchaser in possession. The limitation period will begin to run from the date of the payment of the purchase price in full or last instalment of it. See Harman J in Bridges v Mees, [1957] I Ch 475; and Simpson J (as he then was) in Hosea v Njiru Ors, [1974] EA 526 (K). The upshot is that although Kamau is the proprietor of this registered land Mrs Muthoni is in possession and actual occupation of it and has been in possession of it for over twelve years so she has rights acquired under the Limitation of Actions Act…” ELC(OS) E009 OF 2024 PAGE 9

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22. Further, in East Africa Pentecostal Church through the Registered Trustees V Hezekiel [2024] KEELC 4589 (KLR) the court held as follows: “…For adverse possession arising out of an aborted sale agreement or license, the time for adverse possession starts to run after the payment of the entire purchase price or when the license terminates…” 23. In the instant case, it is not in dispute that the Plaintiff purchased the suit property from the Defendant vide two sale agreements 8th and 22nd November, 1996. 24. I have perused the record and it is a fact that, Wilson Kipkeror Kibet owned three (3) acres part of the suit parcel and the building thereon while the Defendant owned the larger part. 25. It is also not in dispute that the full purchase price was paid by the Plaintiff through it’s advocate to the Defendant’s advocate. This is evidenced by the letter dated 17th March, 1997 by the Defendant’s advocate confirming receipt of the consideration. ELC(OS) E009 OF 2024 PAGE 10

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26. I have also perused the sale agreement dated 8 th November, 1996 for the purchase of the three (3) acres and building forming part of the suit parcel L.R 14242/26/4 and it is evident that payment was made upon execution of the agreement. 27. It was the Plaintiff’s case that it has been in quiet, peaceful and continuous occupation of the suit property after purchasing the same from the Defendant. It is also not in contention that the Plaintiff’s claim remains controverted. 28. In view of the above, it is this court’s opinion that the Applicant purchased the suit property from the Defendant and having paid the full purchase price, the limitation period begun running on 17th March, 1997. It is my view that twenty-seven (27) years have since lapsed from the time the Plaintiff took possession. 29. In conclusion, I find that the Plaintiff has satisfied the requirements on adverse possession and therefore rightfully acquired the suit property by way of adverse possession. 30. Accordingly, judgment is entered in favour of the Plaintiff as against the Defendant. The prayers as sought in the originating summons dated 8th September, 2024 are hereby allowed as follows:ELC(OS) E009 OF 2024 PAGE 11

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(a) That a declaration is hereby issued that the Plaintiff is entitled to be registered forthwith as owner of parcel L.R. No. 14242/26 by dint of adverse possession. (b) Each party shall bear own costs. 31. It is so ordered. Judgment dated, signed and delivered virtually at Nakuru this 24th day of September 2026. L KOMINGOI JUDGE In presence of:Ms Wangari for the Plaintiff No appearance for the Defendant ELC(OS) E009 OF 2024 PAGE 12

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Court Assistant: Irene/Derrick ELC(OS) E009 OF 2024 PAGE 13

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