Esabel Wambui Kamau v Jane Wagio

EAST BLOCK 2/5056 and in default whereof the said documents be executed by the Deputy Registrar of this Court. d) THAT an order of permanent injunction be issued to restrain the Defendant, herself or through her servants, agents or employees from entering, occupying or evicting the Plaintiff from or in any other way interfering with the Plaintiff’s occupation and enjoyment of all that RUIRU/RUIRU EAST BLOCK 2/5056. Plaintiff’s Case 2. The grounds relied upon in support of the Originating Summons are set out in the Affidavit of Isabel Wambui Kamau sworn on the even date. 3. The grounds of the claim are that the Plaintiff has been in continuous, uninterrupted and public occupation of the suit property since 1984 to date and that she and her late husband built a permanent matrimonial home on the property where they raised their eleven (11) children. Further that her husband was buried on the suit property in 1993 and the grave remains there. 4. Additionally, it is the Plaintiff’s case that the Defendant has never interrupted or challenged the Plaintiff’s occupation during the said period and that the Defendant’s registration as proprietor is allegedly irregular given that the Plaintiff held documents from Nyakinyua Investment Limited relating ELCOS NO. E033 OF 2022 2|Page

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to the suit property and finally that it is just and equitable that the Plaintiff be granted ownership of the suit property. 5. In the Supporting Affidavit, Isabel Wambui Kamau reiterates her occupation and claim and annexes a copy of certificate of official search dated 19/06/025. See (“Annexure IWS1”). Plaintiff’s Evidence 6. The Plaintiff testified as PW1 and adopted her witness statement dated 24/03/2023 at pages 14-15 of the trial bundle as her evidence in chief and prayed that it be admitted by the Court. She also produced exhibits contained at pages 6-23 of the trial bundle and asked that the same be adopted as evidence before the Court. Further she stated that she purchased the suit property in 1983 from Wanjiku Ngaruiya and entered into possession in 1985 together with her nine (9) children. She added that she later discovered unlawful occupation by a trespasser, confirmed by her lawyer upon inspection of the property that someone else had occupied her property illegally. 7. PW2, Charles Mwira Kamau testified that he is Plaintiff’s son and he adopted his witness statement dated 29/032023 at pages 16-17 of the trial bundle and prayed that it is admitted as evidence in chief. He confirmed that he was familiar with the suit property, noting that Wanjiku Ngaruiya was the Director of Ngaruiya Investment and that the Plaintiff bought the suit property from her. Further that in ELCOS NO. E033 OF 2022 3|Page

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2016 they discovered that the suit property was registered in the name of Jane Wagio the Defendant herein. Additionally, he testified that they went to the offices of Ngaruiya Investment to try and resolve the issue however the Defendant produced the title deed to the suit property. He stressed that since 2016 the Defendant has never served them any notice to vacate the suit property and that since 1983 no one has asked them to leave the suit property. 8. Counsel for the Plaintiff thereafter closed the Plaintiff’s case and Court fixed a date for delivery of Judgment and granted the Plaintiff 14 days to file written submissions. Plaintiff’s Submissions 9. The Plaintiff through her Counsel asserts that she has been in continuous, open, uninterrupted occupation of the suit property since 1984, adding that she and her late husband built a permanent matrimonial home where they raised their eleven (11) children. She further states that her husband was buried on the suit property in 1993. See (Annexure “EWK3” Photos of the grave). 10. On the issue of Adverse Possession, the Plaintiff invokes the following sections of the Limitation of Actions Act; Section 7 which establishes the twelve-year limitation period for actions to recover land, Section 13 which explains when the cause of action accrues and Section 38 which provides the procedure for enforcing adverse possession. ELCOS NO. E033 OF 2022 4|Page

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11. She places further reliance on Daniel Kimani Ruchine v Swift Rutherford Co Ltd & Another [1977] KEHC 30 (KLR) [13] where the Court held that the burden lies on the claimant of adverse possession to prove use of the land nec vi, nec clam, nec precario (as of right). Also, the Plaintiff referred to Munyu Maina v Hiram Gathiha Maina Nyeri Civil Appeal No.239 of 2005 [2013] eKLR, where the Court of Appeal clarified that when a registered proprietor’s title is challenged, it is not enough to simply produce the title deed. The proprietor must go beyond the instrument and demonstrate the validity of the root of the title. 12. Additionally, she referred to Danson Kimathi Gania v Embakasi Ranching Co Ltd (2014) where the Court clarified that for unregistered land, ownership is established through documentary evidence tracing the root of the title. Further that there must be an unbroken chain of documents proving the true owner. Also, in Murimi v David & 2 Others (2005) KEELC 3883 (KLR) where the Court reaffirmed the doctrine of adverse possession, nothing that it entails possession inconsistent with and denying the title of the true owner. In addition, Adverse Possession requires proof of factual occupation coupled up with the intention to possess. The Claimant thus has to demonstrate use of land openly, peacefully and without permission for twelve years with the registered owner’s knowledge of such occupation and the possession must be continuous and uninterrupted ELCOS NO. E033 OF 2022 5|Page

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thereby extinguishing the title of the true owner under the Limitation of Actions Act. 13. Further, the Court in Wahiu v Nzoka (2025) KEELC held that after twelve years of occupation the title of the registered proprietor is extinguished in favour of the adverse possessor and emphasized that Section 28 (h) of the Land Registration Act recognizes overriding interests, including rights acquired under the Limitation of Actions Act or by prescription under the Land Act. The Court of Appeal in Kasuve v Mwaani Investments Ltd & Others 1 KLR 184, where the Court of Appeal restated the requirements for Adverse Possession. 14. In conclusion the Plaintiff prays that the Court be persuaded with foregoing and allow the suit as prayed. The Claim remains uncontested. 15. The primary issue for determination by the Court is whether the Plaintiff has satisfied the legal requirements for a claim of adverse possession under Sections 7, 13, and 38 of the Limitation of Actions Act (Cap 22, Laws of Kenya) to warrant the extinguishment of the Defendant's title and the registration of the Plaintiff as the sole proprietor of the suit property, RUIRU/RUIRU EAST BLOCK 2/5056. 16. the For a claimant of adverse possession to be successful in claim, they must demonstrate open, continuous, exclusive, and uninterrupted physical occupation of the land ELCOS NO. E033 OF 2022 6|Page

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without the owner's permission or nec vi, nec clam, nec precario for a statutory period of 12 years, coupled with the requisite animus possidendi (intention to possess). 17. The foundation of adverse possession in Kenya is anchored on specific provisions of the Limitation of Actions Act (Cap 22). Specifically, Section 7 provides that an action to recover land may not be brought by any person after the end of twelve years from the date on which the right of action accrued. This is complemented by Section 13, which outlines how a right of action to recover land accrues on dispossession or discontinuance of possession, and Section 38, which sets out the procedural mechanism enabling a person claiming title by adverse possession to apply to the Court for an order vesting the land in them. 18. Courts in Kenya have consistently interpreted these statutory principles. In the definitive case of Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR, the Court described the nature of the doctrine, stating: "Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a requisite period, in this case, twelve years. The process results in the acquisition of legal ownership by ELCOS NO. E033 OF 2022 7|Page

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the adverse possessor and extinguishment of the title of the original owner." 19. Furthermore, in the foundational case of Wambugu v Njuguna [1983] KLR 172, the Court addressed the requirement of exclusivity and hostile intent, noting: "The limits of adverse established. The continuous, exclusive, demonstrating an possession possession must and unmistakable are well be open, uninterrupted, intention to possess the land adversely to the title of the registered owner for the full statutory period." 20.In the present case, the Plaintiff has discharged this burden convincingly. The evidence demonstrates that the Plaintiff entered the land in the mid-1980s, specifically between 1984 and 1985, constructed a permanent matrimonial home where she raised eleven children, and notably buried her late husband on the property in 1993. The presence of a permanent home and a gravesite spanning over three decades constitutes a quintessential open, notorious, and physical assertion of ownership that is entirely inconsistent with the Defendant's title. 21. Regarding the procedural process, the Defendant never filed any response, defense, or Replying Affidavit, which renders the suit wholly uncontested. While an uncontested claim does not automatically translate to an automatic win as the Plaintiff still bears the legal burden to prove her case ELCOS NO. E033 OF 2022 8|Page

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on a balance of probabilities the evidence presented remains unrefuted and unchallenged. In the absence of crossexamination or a rebuttal from the Defendant, the Plaintiff's timeline of occupation from 1984, the construction of the home, and the 1993 burial stand as uncontroverted facts. Consequently, the Court is entitled to accept the Plaintiff's uncontested narrative as the truth, making it significantly straightforward for the Court to rule in favor of extinguishing the Defendant's title under Section 38 of the Limitation of Actions Act. 22.Similarly, the fact that the Plaintiff has never met the Defendant does not negatively affect the claim for adverse possession. Adverse possession does not require a contractual or personal relationship between the claimant and the registered proprietor, but is instead founded on the true owner's absence or neglect of their land coupled with the claimant's actual possession. Furthermore, the fact that the parties have never met strongly reinforces the requirement that the Plaintiff's occupation was nec precario, meaning not by license or permission. If the true owner is entirely absent, unaware of the occupation, or neglectful of their property for over 12 years, the clock on limitation continues to run uninterrupted against them. As noted in jurisprudence surrounding adverse possession, the essence of the doctrine is that the owner sleeps on their rights while the occupier openly develops the land. ELCOS NO. E033 OF 2022 9|Page

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23.Upon review of the pleadings, the uncontroverted evidence, and the applicable law, Judgment is hereby entered for the Plaintiff against the Defendant in terms of the Further Amended Originating Summons dated 30/06/2025. It is ordered as follows: a) A declaration be and is hereby issued that the Plaintiff, Isabel Wambui Kamau, is the legal owner of all that parcel of land known as RUIRU/RUIRU EAST BLOCK 2/5056 through adverse possession. b) An order be and is hereby issued directing that the Plaintiff be registered as the sole proprietor of all that parcel of land known as RUIRU/RUIRU EAST BLOCK 2/5056 in place of the Defendant, Jane Wagio, and that the Land Registrar do cancel the title currently held in the name of the Defendant. c) An order be and is hereby issued directing the Defendant to execute all documents and take all necessary steps to effect the transfer of RUIRU/RUIRU EAST BLOCK 2/5056 to the Plaintiff, and in default thereof, the Deputy Registrar of this Court is authorized to execute all requisite transfer documents on behalf of the Defendant. d) An order of permanent injunction be and is hereby ELCOS NO. E033 OF 2022 issued restraining the Defendant, 10 | P a g e

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whether by herself or through her servants, agents, employees, or any persons claiming under her, from entering, occupying, evicting, or in any other way interfering with the Plaintiff's quiet occupation and peaceful enjoyment of RUIRU/RUIRU EAST BLOCK 2/5056. e) Each party shall bear its own costs of the suit. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 8TH DAY OF OCTOBER 2026. ........................... MOGENI J JUDGE In the presence of:Ms. Muranda holding brief Plaintiff/Applicant Defendant – Absent Mr. Melita – Court Assistant for Miss Wangui for the ........................... MOGENI J JUDGE ELCOS NO. E033 OF 2022 11 | P a g e

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