Kamuiru v Forest Paradise Village Ltd

5. a. This Honourable Court be pleased to declare that the Applicants and any other person claiming under them has by way of adverse possession acquired title to LR No: Kwale/Diani S.S/1348. b. This Court be pleased to order the Respondent to bear costs. c. This Court do make an order as to interest on costs. d. This Court do make any other order deemed expedient in the circumstances. The originating summons was premised upon grounds listed on its face and the supporting adavit of Steven Gitau Kamuiru, Applicant herein. He averred that: a. In the year 2005, he entered into possession of the Land Parcel No. Kwale/Diani S.S/1348 (hereinafter referred to as "the suit property") measuring approximately 0.220Ha where he settled and raised his family on the suit property for almost 20 years uninterrupted. b. The boundaries and beacons were clearly delineated. c. He carried out farming activities on the land including planting coconut trees, mango trees, cashew nuts, oranges among other fruits. d. A man later showed up and claimed that the said parcel of land belonged to the Respondent. A search at the Kwale Land’s Oce conrmed the said ownership. e. He maintained that the Respondent was aware of his occupation of the suit property. f. He asserted that he had been in continuous and uninterrupted occupation of part of the suit property and as such he had attained proprietary rights over the same by virtue of his adverse possession. g. The Respondent had not led any claim to evict him and his family from the suit property. h. His occupation of the suit property had been long, open, continuous and quiet since 2005 and with the knowledge of the Respondent. The oral evidence by the Applicant. The Applicant, a resident of Ukunda testied that he instituted the present suit in respect of Land Parcel No. Kwale/Diani S.S/1348 (hereinafter referred to as "the suit property") seeking a declaration that he has attained registrable rights by virtue of his adverse possession. He stated that he has been in occupation of the suit property for approximately twenty (20) years, during which period he constructed a permanent residential house thereon. He further testied that he had drilled a borehole, conducted farming, installed solar power on the house, and fenced the property. He produced as evidence photographs in support of his assertions. 6. It was his evidence that he had not been permitted to be on the land by the registered owner of the suit property the Respondent herein. He stated that in the year 2008, a man visited the suit property and informed him that the Respondent company was the registered proprietor of the land. According to the Applicant, the said individual never returned to the suit property thereafter. He produced as evidence a copy of the title deed in the name of the Respondent and a copy of CR12 showing the incorporation status of the Respondent Company, the directors and their shareholding. 7. The Applicant further testied that he has no other parcel of land and that he lives on the suit property together with his family. He stated that he was not a caretaker of the owner of the suit property and that no person had ever questioned his occupation and development of the suit property. He further https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5627/eng@2026-09-23 2

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stated that the neighbours regarded him as the owner of the suit property. He accordingly sought to be registered as such and a title deed to the land be issued to him. Submissions by the Applicant 8. After close of the Applicant’s case, Applicant’s Counsel led written submissions. She identied the following issues for determination; i. Whether the Applicant has been in actual, open and exclusive possession of the suit land. ii. ii. Whether such possession has been continuous, uninterrupted and adverse to the Respondent's title for at least twelve years. iii. Whether the Respondent's title has been extinguished under the Limited of Actions Act. iv. Whether the Applicant is entitled to registration as proprietor. 9. In summary, counsel submitted that Section 7 of the Limitation of Actions bars an action to recover land after twelve years from the date the action accrued while Section 13 and 17 provide that where adverse possession is established, the proprietor's title is extinguished. That, section 38 empowers the court to order registration of the adverse possessor as proprietor. 10. She argued that the Applicant has discharged the burden imposed by section 107,108 and 109 of the Evidence Act (Cap80) and has proved all the facts that he set out in the Summons. She noted that the Applicant has produced documentary evidence in addition to his oral testimony proving that he been and is in actual possession of the land, that his possession has been open and notorious, without force and not in secrecy, that it has been exclusive, continuous and uninterrupted for a period of over twelve years and has been without permission of the registered owner. 11. Counsel surmised that the Applicant's evidence demonstrates that he has actual uninterrupted occupation of the suit property for over twelve years. He has exercised exclusive dominion over the land by residing on it, building permanent and semi-permanent structures, cultivating it, and excluding all other persons for approximately Nineteen years to the extent that neighbours consider him and his family as the owners of the land. That the Respondent is aware that the Applicant is in occupation of its land and no eort has been done to evict him despite the fact that he is neither a caretaker, a licensee or a lessee of the suit land nor does he pay any rent to the Respondent herein. 12. That there has been no demand to vacate the suit premises, no successful eviction, recovery proceedings or re-entry. Counsel submitted that mere registration of the title without actual assertion of possessory rights cannot defeat an accrued claim for adverse possession and that such occupation is inconsistent with the Respondent's ownership and clearly amounts to dispossession within the meaning of the law. She noted the Respondent who is the registered owner has slept on his rights while the Applicant openly occupies the land for more than twelve years, and that the law intervenes by extinguishing the registered owner's title. 13. She submitted that the Respondent has failed to rebut that evidence or demonstrate any interruption of possession sucient to stop time from running. She surmised that the evidence adduced satises the legal threshold for adverse possession as enunciated in the Court of Appeal in Wambugu v Njuguna [1983] KLR 172 where the court held that adverse possession is proved where the registered owner has either been disposed or has discontinued possession for the statutory period. Counsel also gave refence to the case of Mtana Lewa v. Kahindi Ngala Mwagandi [2015] eKLR where the Court of Appeal dened adverse possession as occupation that is without force, secrecy and without permission. She too cited Kasuve v Mwaani investments Ltd &Others[2004] 1 KLR 184, where the Court held that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5627/eng@2026-09-23 3

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the claimant must prove that they have exclusive possession openly and as of right without secrecy, without permission and interruption for at least twelve years. Analysis and determination Issues for determination 14. The Court has carefully read and considered the pleadings by the Applicant, the evidence adduced, written submissions, authorities cited and the relevant provisions of law and distills that the salient issue for determination is; i. Whether the Applicant has established his claim for adverse possession over L.R No. Kwale/ Diani S.S/1348? Whether the Applicant has established his claim for adverse possession over L.R No. Kwale/Diani S.S/1348? 15. It is the Applicant’s case that he has been in the suit property for more than twenty (20) years wherein he avers that he has constructed a permanent house, dug boreholes and cultivated on the land. He further contends that the Respondent was aware of his presence on the suit property and did not interrupt his occupation and possession thereof. 16. From the outset, the Court notes that the Respondent neither entered appearance nor led any response to the Originating Summons. Consequently, the suit proceeded undefended. Be that as it may, the mere absence of a defence does not entitle the Applicant to the orders sought as of right. The Applicant bears the legal burden of proving his case on a balance of probabilities, and it therefore behoves this Court to carefully scrutinise and evaluate the evidence on record to determine whether the Applicant’s claim has been established to the requisite standard. This was clearly enunciated in the case of Gichinga Kibutha vs Caroline Nduku [2018] eKLR, where the Court held as follows; “ The hearing referred to above is the one commonly known as “Formal proof”. The Civil Procedure Rules do not dene “Formal Proof”. Black’s Law Dictionary denes “Formal” as including “rules established by an institution according to certain processes”. This particular hearing is for the claimant to proof his claim. It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.” 17. The legal burden of proof rests upon the person asserting the existence of a particular set of facts to prove the said facts. This principle that ‘he who alleges must prove’ is expressly espoused under Sections 107, 108 and 109 of the Evidence Act, which provides as follows: 107 108 Burden of proof (1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact is said that the burden of proof lies on that person. Incidence of burden The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5627/eng@2026-09-23 4

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109 Proof of particular fact. “ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided for by law that the proof of that fact shall lie on any particular person.” 18. 19. This Court in Mwangi v Kariuki (Environment and Land Case Civil Suit E020 of 2020) [2022] KEELC 2471 (KLR) while determining an undefended claim for adverse possession, stated as follows: “ 8. It is trite that the burden of proof, according to Sections 107, 108 and 109 of the Evidence Act, is placed on the person alleging the occurrence of an event, and where there is no evidence to challenge the allegations, the standard of proof automatically is higher. Undoubtedly, owing to the nature and extent of orders for adverse possession to wit extinction of the right to property, the burden is particularly high. 9. In the instant suit, the burden of proof squarely rests upon the Plainti who has a duty to demonstrate that he has met the requirements for the grant of an order of adverse possession. (See Gabriel Mbui vs Mukindia Maranya [1993] eKLR, where the Court stated as follows; “The burden of proving title by adverse possession rests upon the person asserting it. This is to say the burden of proof is upon the person setting up and seeking to prove title by adverse possession (Mamuji v Dar [1935] 2 E A CA 111, Bwana v Ibrahim (1948) 15 EACA 7; and Forbes, JA, in Abdulkarim and another v Member for Lands and Mines and another 1 [1958] EA 436). He proves it on the usual standard of proof in civil cases namely, on a balance of probability. What does he prove? He proves three adequacies: continuity, publicity, and extent. For to prove title by adverse possession, it is not sucient to show that some acts of adverse possession have been committed: the possession must be adequate in continuity, in publicity and in extent, to show that it is adverse to the rightful, paper title owner.” The doctrine of Land adverse possession in Kenya is envisaged in the provisions of Sections 7, 13 & 38 of the Limitation of Actions Act, Cap. 22. Section 7 of the Act provides: “ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it is rst accrued to some person through whom he claims, to that person”. Section 13 of the Act provides: “ PARA (1) A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession” Section 38 of the Act provides; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5627/eng@2026-09-23 5

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20. (1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under 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) An order made under subsection (1) of this section shall on registration take eect subject to any entry on the register which has not been extinguished under this Act. The procedure for seeking relief on a claim based on adverse is provided for under Order 37 of the Civil Procedure Rules, 2010 which states thus: 7. 21. Adverse possession [Order 37, rule 7] (1) An application under section 38 of the Limitation of Actions Act (Cap. 22) shall be made by originating summons. (2) The summons shall be supported by an adavit to which a certied extract of the title to the land in question has been annexed. (3) The court shall direct on whom and in what manner the summons shall be served. The Court of Appeal in Mtana Lewa – Versus - Kahindi Ngala Mwagandi (Civil Appeal 56 of 2014) [2015] KECA 532 (KLR) succinctly described the doctrine of adverse possession as hereunder; “ 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 licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 22. The same court in the case of:- “Bendera Karisa Karima – Versus - Kenya Airways Limited Civil Appeal E015 of 2023) [2025] KECA 1966 (KLR)”: restated the essential ingredients that a claimant must establish in order to succeed in a claim for adverse possession as follows: “ In Andafu – Versus - Akhulunya [2025] KECA 714 (KLR), this Court articulated the principle as follows: ‘‘Courts, on the other hand, have judicially developed the elements which must be satised before a claimant can succeed in an action for adverse possession. The leading cases from this Court in this regard include: Titus Mutuku Kasuve – Versus Mwaani Investments Limited & 4 others [2004] eKLR; Titus Kigoro Munyi – Versus - Peter Mburu Kimani, Civil Appeal No. 28 of 2014; Wambugu – Versus - Njuguna [1983] KLR 172) and Karuntimi Raiji – Versus - M'makinya [2013] eKLR. The principles distilled from these cases are that in order to establish a claim of adverse possession, the possession must be: a. Adverse to the interests of the owner- meaning that the claimant is in possession as owner in contradistinction to holding in recognition of or subordination to the true owner or to a recognized superior claim of another; b. Actual- as opposed to constructive possession where the test is the degree of the actual use and enjoyment of the parcel of land involved by the claimant or his agent, tenant or licensee; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5627/eng@2026-09-23 6

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c. Open and notorious - meaning that the possession must be open and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner's rights are being invaded. Dierently put, the possession must be manifest to the community; d. Without force - meaning that the possession and occupation must have been achieved peaceably not through actual or threatened violence; e. Exclusive - meaning that the possession must be of such exclusive character that it will operate as an ouster of the owner of the legal title. Dierently put, the claimant must demonstrate that she wholly excluded the owner from possession for the required period; f. Continuous and uninterrupted for the period of twelve years - meaning that the title owner did not re-enter the property under circumstances showing her intention to assert dominion against the adverse user for at least twelve years. See Joseph Ndafu Njurukani & 2 Others – Versus - Emily Naliaka Barasa, Kisumu Civil Appeal No. 149 of 2022; Titus Mutuku Kasuve (Supra); Titus Kigoro Munyi (Supra); Wambugu vs. Njuguna(supra) and Karuntimi Raiji (supra).” 23. Having set out the applicable legal principles governing claims for adverse possession, the Court must now determine whether the Applicant’s right of adverse possession claim over the suit property has accrued. In doing so, the Court is required to evaluate the evidence on record with a view of establishing, inter alia, the circumstances under which the Applicant entered the suit property, the nature of his occupation, whether such occupation was open, continuous, notorious and uninterrupted for the statutory period, and whether it was adverse to the title of the registered proprietor. 24. While the Applicant testied that he entered the suit property in or about the year 2005 and has remained in occupation thereof to date, that he has undertaken substantial developments on the land, including the construction of a permanent house, the drilling of boreholes, cultivation of the land and installation of a solar power system and that throughout the period of his occupation, neither the Respondent nor any other person interrupted or disputed his possession of the suit property, the evidence does not establish the circumstances under which he gained entry into the suit property. In essence, the Applicant did not tender any evidence on whether his entry onto the land was with the consent or permission of the registered proprietor or whether it was without permission. 25. The manner of entry is a critical ingredient in a claim for adverse possession, as possession that is initially permissive cannot, without more, found a claim for adverse possession. In Mwangi v Kariuki, supra¸ this Court considered the evidential burden of proving the circumstances of entry and the nature of occupation in a claim for adverse possession and observed as follows: “ 19. This Court notes that while the Plainti alleges to have gained entry into the suit land sometime in 1991 and to have been in occupation of it for about 29 years, but he has not established how he gained the said entry. This Court is unable to tell from the evidence produced and from the Plainti’s pleadings whether the said entry was permissive or non-permissive. Further, this court notes that while the Plainti alleges to have been in possession of the suit land for over 29 years since 1991, he has not adduced any evidence including but not limited to photographs to support his claim. In addition, the Plainti did https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5627/eng@2026-09-23 7

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not even call any witnesses to corroborate and substantiate his averments about the nature of his possession.” 26. The burden rested upon the Applicant to demonstrate, on a balance of probabilities, that his entry and subsequent occupation of the suit property were non-permissive or if it was with the Respondent’s permission, such permission ceased at a particular point. In the absence of such evidence, this Court cannot conclusively determine that time began to run against the Respondent from the alleged inception of the Applicant's occupation. 27. In addition, save for Applicant’s oral evidence, no other cogent corroborative evidence to establish that he entered the suit property in the year 2005 and has remained in continuous occupation thereof to date was tendered. The Court is therefore left only with the Applicant's bare assertions, which, without corroboration, are insucient to discharge the higher burden of proof required to extinguish the Respondent’s right to the suit property. Despite the evidence that he has neighbours who regards him as the owner of the suit land, he made no attempt to call any of those neighbours. A person who is continuously and permanently residing in an area for 20 years would obviously develop social connections that comes with long residency including being known as such by local administrators. None of the local administrator be it chief, assistant chief or village elder was called to conrm that indeed the Applicant is a resident of his area of jurisdiction and has been so for 12 years. 28. The Applicant produced photographs of what he testied were his developments on the suit land. Photographs however cannot attest to the duration of his occupation of the suit land. They cannot even attest the continuity of that occupation. Photographs are only evidence of the status as at the time when they were taken. There was no evidence of when the photographs were taken or who took them. Also the court can only assume that they are indeed photographs of the suit property. They are of little probative value and oers little in terms of corroboration of the Applicant’s oral evidence. 29. The Court of Appeal in Mwagandi v Lewa [2025] KECA 1036 (KLR) addressing the issue of admissibility and probative value of photographs relied upon in claims for adverse possession held: “ 23. The Appellant in addition produced photographs to demonstrate his occupation and developments he had made on the suit property. It is notable rstly, that photographs are electronic records, and to be admissible, they require authentication by way of the certicate required by section 106B[4] of the Evidence Act, which conrms the following: a. the identity of the electronic record containing the statement and describing the manner in which it was produced; b. giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; c. the matters to which the conditions mentioned section 106B[2] relate, including the period the electronic record relates to; and d. the signature by a person occupying a responsible position in relation to the operation of the relevant device used in the production of the electronic document. 24. No such certicate was produced by the Appellant to authenticate the photographs; particularly as regards the time they were taken and location of the items therein. Secondly, this Court held in Eliakim Masale v Ilale Mohamed & 4 Others, Mombasa Civil Appeal 135 of 2019, that a photograph, being a static and inert representation of facts, can only objectively identify a certain person, item, or place at the particular period of time when the photograph is taken, and has limited evidentiary and probative value as regards the facts https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5627/eng@2026-09-23 8

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of duration of occupation, or the continuous occupation of a property that is the subject of a claim by adverse possession. The photographs produced by the Appellant were of semi-permanent houses and trees on a parcel of land, which he claimed was the suit property. The photographs were not dated, and there was no evidence as to when they were taken. It was also not evident that they related to the suit property. Lastly, the photographs being static and inert representations, are of limited evidentiary and probative value as regards the facts of the duration of occupation, or the continuous occupation of the suit property for the required period of twelve years by the Appellant.” [Emphasis mine] 30. The undated photographs produced are of little probative value in proving continuous occupation of the suit property for the statutory period of twelve years. 31. Finally, the Court of Appeal has restated that for time to run in favour of a Claimant, it has to be demonstrated that the registered owner of the property had knowledge of the Claimant’s occupation. In Chandrakant Devraj Shah v Alibhai Haji & another [2018] KECA 389 (KLR), the Court held thus: “ Turning to the prerequisite of want of proof of permission, agreement and or grant on the part of the respondents, our understanding of the holding on this prerequisite in Benjamin Kamau Murima & 2 others –versus Gladys Njeri (Supra) is that it denotes knowledge by the title holder of the presence of a person or persons in whom the adverse title is to run. In circumstances where the title holder was unknown to the appellant, the only inference to be drawn from the facts relied upon by the appellant in support of his claim to adverse possession of the suit property is that the title holder was not even aware of the presence of the appellant on the suit property. There was no way in our view, in the circumstances of this appeal, the trial court could have imputed lack of permission, agreement or Grant against the unknown respondents in favour of the appellant.” 32. The same principle was adopted by this Court in Karuru v Njuguna (Enviromental and Land Originating Summons 11 of 2019) [2024] KEELC 3446 (KLR), where, while citing with approval the above decision, the Court reiterated that a claimant must demonstrate that the registered proprietor knew, or had the means of knowing, of the claimant's occupation before such occupation can properly be described as adverse. The Court held; “ The plaintis have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion). So, the plainti must show that the company had knowledge (or the means of knowing actual or constructive) of the possession or occupation. The possession must be continuous.” 33. This Court in Karuru v Njuguna, supra, further posited as follows: “Without evidence that the original owner knew that his parcel of land had been occupied by another, then this court cannot hold that the Plainti’s occupation and possession of the said portion of 0.17 Ha from land parcel No.512, was adverse to the rightful owner and that time started running for purpose of computation of statutory period.” 34. Applying the foregoing principles, the Applicant did not produce any evidence demonstrating that the Respondent, a company, or its directors or its duly authorised representatives were aware of his occupation of the suit property. His evidence, that sometime in the year 2008 an unidentied man informed him of the name of the registered proprietor, does not establish the identity of that individual https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5627/eng@2026-09-23 9

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or his connection, if any, with the Respondent. In the circumstances, the Court is unable to nd that the Respondent had actual or constructive knowledge of the Applicant's occupation. It follows that the Applicant has not established that time commenced running against the Respondent for purposes of adverse possession. 35. In summary and upon a careful evaluation of the entire evidence on record, this Court nds that the Applicant failed to discharge the evidential burden resting upon him. He failed to prove the circumstances of his entry onto the suit property, the continuity of his occupation for the statutory period, or that such occupation was adverse to the Respondent with the latter's actual or constructive knowledge. 36. I associate myself with the observation of this Court in Mwangi vs Kariuki, supra, where the Court observed thus: 37. “ 20. This Court has herein above stated that the burden of proof was squarely upon the Plainti’s ambit, as he is the one who claims to be in adverse possession of the suit land. Further, this Court has also stated that this being an undefended claim, the Plainti’s duty to proof was higher. Therefore, this Court is duty bound to thoroughly investigate all the evidence adduced as though the claim was defended even if it was not. The Court is of the view that the Plainti failed to appreciate his evidential burden of proof and very lightly presented his case. The Plainti’s claim is premised on allegations, which allegations he seems to have put little or no eort to substantiate and/or proof with the help of evidence including but not limited to documents, witnesses and photographs. 21. As stated herein above, a claim for adverse possession is not to be taken ippantly as the nature and extent of orders for adverse possession amount to extinction of a right to property of the registered owner of the said property.” The upshot of the foregoing is that the Applicant has failed to prove, on a balance of probabilities, the essential ingredients of a claim for adverse possession. It follows therefore that the Originating Summons dated 28th March 2025 is found not merited and the same is dismissed. There is no order as to cost, the Respondent having not participated in the proceedings. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 23RD DAY OF SEPTEMBER 2026. HON. E.G NDERITU LJ ELC KWALE In the presence of: M/S Njogu for the Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5627/eng@2026-09-23 10

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