REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MURANG’A ELCLOS E018 OF 2024 ZACHARIA KANYI KIMANI………………………………………………APPLICANT =VERSUS= NYAMBURA KAMAU………………………………..……………………RESPONDENT JUDGMENT (1)In the originating summons dated 20-8-2024, the Applicant seeks the following reliefs against the Respondent. 1. There be a declaration that the Applicant has acquired all rights and title to land parcel No. Loc. 10/Gatheru/T.77 by way of adverse possession. 2. Title to land parcel No. Loc.10/Gatheru/T.77 be accordingly cancelled to read Zacharia Kanyi Kimani. 3. The costs of this Applicant be in the cause. (2)The summons is premised is nine grounds and it is supported by an affidavit sworn by the Applicant which read as follows. Firstly, the Applicant has been in occupation of land parcel No. Loc.10/Gatheru/T.77 since the year 1970. The said plot together with plot numbers Loc.10/Gatheru/T.4 and T.49 had been purchased by the Applicant’s father around the year 1963. Soon after purchase, the Applicant’s father gave the Applicant’s mother plot numbers T.4 and T.49 while the Applicant was given the suit plot. Secondly, the Applicant has been in continuous occupation of the suit plot for a period exceeding twelve (12) years. Thirdly, the sellers of plots Nos. T.4 and T.49 transferred those plots to the Applicant’s mother. Unfortunately the Respondent who is the registered owner of the suit plot did not transfer it to the Applicant because she cannot be traced. Every effort to trace her has not borne any fruit. It is only fair that the Applicant be declared the lawful owner of the suit premises through the doctrine of adverse possession. (3)In support of his case, the Applicant filed the following evidence. MRG ELCLOS E018 OF 2024 1J of 3
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(a) Supporting affidavit dated 19-8-2024. (b) Copy of register of L.R. No. Forthall Loc.10/Gatheru/T.49. (c) Copy of register of L.R. No. Loc.10/Gatheru/T.77 (4)Efforts to trace the Respondent proved futile. The Court ordered that the Respondent be served through the office of the Chief of the area where the suit land is situated. The acting chief of Gathamba location, one Antony Wamukangu, swore an affidavit dated 20-5-2026 to the effect that the Respondent, Nyambura Kamau, is unknown in the area and that even the former chief Mr. Macharia had indicated that she was not known to him. (5)For the reasons stated in paragraph [4] above, the Respondent did not file any reply to the summons and the case proceeded as undefended. (6)At the trial on 15-7-2026, the Applicant testified by adopting his filed evidence. (7)Upon consideration of the originating summons and the evidence adduced , I find the following to be the issues. (a) Whether the Applicant has proved all the ingredients of adverse possession. (b) Whether the Respondent’s title to the suit land has been extinguished by operation of the law. (c) Whether the Applicant should be registered as the owner of the suit land. (d) Who should bear the costs of the suit. (8)The law relating to adverse possession is to be found in Sections 7, 13,17 and 38 of the Limitation of Actions Act. While Section 7 provides that an action may not be brought to recover the land after the expiry of twelve(12) years from the date when the right of action accrued, Section 13 provides that a right of action to recover land does not accrue unless the land in question is in possession of a person in whose favour the Limitation period can run. In addition to the above, Section 17 provides for the extinguishing of the title of a person whose right to recover the land has expired while Section 38 vests jurisdiction in the High Court (read Court of equal status with jurisdiction to deal with environment and land disputes). MRG ELCLOS E018 OF 2024 2J of 3
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(9)In the case of Mtana Lewa Vs. Kahindi Ngala Mwagandi[2015] eKLR,, the Court of Appeal held that adverse possession arises where a person takes possession of land and asserts rights over it while the registered owner fails to take action during the statutory period of twelve (12) years. In this case, the Plaintiff has proved all the ingredients of adverse possession because his evidence remains unchallenged and uncontroverted. (10) For the above stated reasons, I find that the Applicant has proved his claim on a balance of probabilities as against the Respondent. Consequently I enter judgment for the Applicant in terms of prayers 1 and 2 of the originating summons dated 20-8-2024. No orders as to costs. It is so ordered. Dated, Signed and Delivered virtually at Murang’a this 22nd day of September, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Antony Applicant’s Counsel – Miss Macharia h/b Respondent’s Counsel – Absent MRG ELCLOS E018 OF 2024 3J of 3
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