Njeri & another (Suing as the Administrators and Legal Representatives of the Estate of the Late Mwangi Wambugu) v Kinyanjui

3. b. Whether the Defendant’s title to the said parcel of land measuring approximately 0.7760 Hectares (in their capacities as administrators of the estate of Mwangi Wambugu) has now been extinguished as a result of such continuous, open and adverse possession by the Plainti. c. Whether the Plainti is entitled under Section 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya to be registered as the absolute proprietor of the parcel of land Rare/Teret Block 1/1907 measuring approximately 0.7760 Hectares in place of Mwangi Wambugu, who is now and presently registered. d. Whether the Defendants should pay the costs of these proceedings. The Plainti led a Replying Adavit dated 19th March, 2018, in opposition to the Originating Summons, and on 23rd October 2018, the court directed that ELC No.555 of 2016 and ELC No.94 of 2018(O.S) be consolidated. Plainti ’s Case 4. PW1 Daniel Maina adopted his witness statement dated 30th June 2025 as his evidence in chief and stated that he is the son and one of the Administrators of the estate of the late Mwangi Wambugu. 5. PW1 testied that he knew the defendant in 1978, and that his father took him to Mutukanio Farmers’ Cooperative to show him the suit land No.1907, where he had four shares. He stated that the shares in his father’s name were 1904 and 1907. 6. It was PW1’s testimony that they were staying in Kiptinga Forest Station but were evicted and went to construct on parcel No. 1904 and 1907. He stated that when they arrived, three people namely, Francis Chege, and Stephen Kinyanjui stopped them from building, claiming that the land belonged to them. They reported the matter to the headman, and later led a case in court, which held that the land belonged to his father. PW1 produced documents dated 12th May, 2022 and a further list dated 3rd February, 2018 with payment receipts for the land as Pex No.9. He further stated that he is not aware of a company known as Gilgil Mitigari Company Limited and that his late father r had a case against the defendant from 1978, which they have been following to date. 7. Upon cross-examination by counsel for the Defendant, PW1 testied that he was taken to the suit land in 1978 and that the land had been cultivated and there was a small structure. It was his evidence that the Defendant was one of the people who had put up a temporary structure on the suit land. 8. PW1 further testied that his father gave his brother Nathan one parcel and his father remained with parcel Nos.1904 and 1907.PW1 referred to Land Dispute No.7 of 1987 in respect of Plot Nos. 1903, 1904 and 1907, and stated that a decree was issued in 1988 in favour of his father. He stated that apart from the 1988 case where they got the decree, they did not le any other case until 2016. 9. PW1 testied that one share was equivalent to 2.5 acres, and the title in respect of Parcel No. 1907 hectares, 1.218 Hectares, Plot No.1904 measures 0.7760Hectares, but has not sued Chege who is in occupation of Plot No.1904. He further stated that they were following up the issue of the parcels through the Chief and the D.O, but were not in occupation of the parcels as the Defendants are trespassers. 10. Upon re-examination by counsel, PW1testied that they are in court for eviction orders and that there were other cases which were decided in his father’s favour and would like the court to look at them. 11. PW2 Jane Njeri Mwangi, a wife and a co-administrator of the estate of Mwangi Wambugu adopted her witness statement dated 30th June 2025, as her evidence and testied that her late husband was given https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6275/eng@2026-10-07 2

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Plot No.1907, by Mutukanio Company Limited. It was her testimony that her husband was allocated four shares, issued with receipts, and Share Certicates for Plot Nos.1904 and 1907. PW2 testied that they balloted for the parcels of land but the ballot papers and the Share Certicates got lost, which she reported to the Police Station. She conrmed that she has never been in occupation of the suit land. 12. PW2 further testied that they used to stay in the forest but they were given notice to vacate, but when they went to the suit land, three people had occupied it. She stated that they reported to the Chief, Headman and D.O who resolved that the land belonged to her husband. PW1 also testied that they later went to court, which determined that the land belonged to her husband. She stated that there were orders of eviction but the defendants have not vacated, and urged the court to grant the orders as prayed in the Plaint. 13. Upon cross-examination by counsel for the Defendant, PW2 testied that she got a title deed for Plot No.1907 on 28th July 1987, when the titles were being issued. PW1 further stated that most of the members of Mutukanio took occupation of the parcels, and that she has not sued Stephen Chege since 1987, when they got the title and further, they sued at the Tribunal and in the current case but there were no eviction orders. 14. PW2 stated that she has never gone to the land as the persons fought the husband with machetes. She testied that the Defendant constructed while this case was pending before the court. 15. Upon re-examination by counsel, for the Plainti, PW2 testied that there have been other cases in respect of this parcel of land since 1987. Defendant’s Case 16. DW1 Julius Kinyanjui adopted his witness statement dated 19th November 2018, and Adavit dated 17th February 2018, as his evidence and stated that he stays in Plot No.1907, which he acquired in 1977 as a member of Mutukanio Company Limited. He stated that Mwangi Wambugu claimed the suit plot in 1987 to belong to him. 17. DW1 stated that in 1987 he was called to the DO’s oce that there was a person claiming Plot No.1907, and when they went to court, they saw a title deed in the name of Mwangi Wambugu for 1907. It was his evidence that he constructed a house on the suit plot in 1977 and prayed that the Plaintis’ title be cancelled and be registered in his name. 18. Upon cross-examination by counsel for Plainti, DW1 testied that he paid for shares at Mutukanio Farmers Company Limited and produced a receipt for Gilgil Matigari Company Limited but did not produce a receipt for Mutukanio Company limited. 19. DW1 testied that he has ballot papers for 3943, and that the oce inserted Plot No.1907 on the ballot. DW1 further stated that he had two shares but No.3942 does not bear the parcel number. It was his evidence that he knew that Wambugu had a title when the case was led in court, was a member of Mutukanio Farmers Company Limited and he paid survey fees but was not present at the elders meeting. 20. On re-examination by counsel for the Defendant, DW1 testied that he did not go to the elders but went to the DO’s oce and later went to the Land Disputes Tribunal, and there were no other cases that were led. 21. DW1 stated that he produced the ballot papers 3942 and 3943, and the insertion of 1907 was done by the ocials. He stated that there were 14 companies under the umbrella of Mutukanio Farmers https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6275/eng@2026-10-07 3

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Company, of which Rongai Ngwataniro and Elburgon were some of the branches. He stated that he has never been evicted or told to vacate. 22. DW2 Stephen Chege Wainaina adopted his witness statement dated 17th November 2018, and testied that he stays in Njoro Mutukanio, where he cultivates on Plot No.1904. He stated that he knows Julius Kinyanjui who is his neighbor but does not know the late Wambugu and his family.DW2 testied that the Defendant stays in Plot No. 1907 and started occupying the land in 1979. He stated that the Defendant has never been evicted from the suit land. 23. During cross-examination by counsel for the Plainti, DW2 testied that all the receipts were in Ngwataniro Company Limited, his was in Mau Narok, and there were others in Rumuruti, Mau Narok, Elburgon, Bahati. He stated that his receipt read Mau Narok Ngwataniro where they balloted. DW2 further testied that the receipt by the Defendant does not read Ngwataniro, as it was issued by Gigil Matigari, which is the only receipt that does not have Ngwataniro, as all the receipts from the 14 branches were written Ngwataniro. The cases in respect of 1904 did not proceed. Plaintis’ Submissions 24. Counsel for the Plaintis led submissions on 7th May,2026, and relied on Sections 24(a) and 26(1) of the Land Registration Act, 2012, and submitted that there is no evidence that has been led by the defendant to show that the title held by the deceased Mwangi Wambugu was illegal or had been obtained fraudulently. 25. Counsel challenged the defendant’s claim of allocation of Plot Rare Teret Block 1/1907, and submitted that his reliance on a July 1998 receipt from Gilgil Matigari Company Limited bearing a handwritten entry No. 1907 was suspect and had no connection to Ngwataniro Farmers co. Ltd. 26. According to counsel, the Defendant could not legally or logically maintain a claim of adverse possession while simultaneously asserting ownership by way of allocation, and relied on the case of Mwalimu and 6 others vs Halal & Another (2025) KECA 1186(KLR). 27. Ms. Njoroge further cited the case of Francis Muthoga Muhika v Margaret Wangari Karonjo [2021] KEELC 2182 (KLR) and submitted that a suit previously instituted by the Defendant for cancellation of title, in 1988 had eectively stopped and determined the running of time for adverse possession. 28. Regarding the claim of adverse possession, counsel argued that time could only begin running against the Plaintis upon the registration of title in July 1987, and relied on the cases of Francis Gitonga Macharia v. Muiruri Waithaka Civil Appeal No.110 of 1997(1998) e KLR and Ravji Karsan Sanghani v. Peter Gakunu (2019) e KLR. Counsel urged the court to grant the orders of eviction against the Defendant from the suit land to allow the lawful owners to benet from what is legally theirs. Defendant’s Submission 29. Counsel for the Defendant led submissions dated 18th June, 2026, and identied three issues for determination: a. Whether the Defendant had proved, on a balance of probabilities, the existence of all the essential elements and ingredients of adverse possession? b. Whether the Defendant was entitled under Section 38 of the Limitation of Actions Act (Cap. 22 Laws of Kenya) to be registered as the absolute proprietor of parcel RARE/TERET BLOCK 1/1907, measuring approximately 0.7760 Hectares, in place of the registered owner, MWANGI WAMBUGU who is now and presently registered? https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6275/eng@2026-10-07 4

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c. Whether the Plainti should be ordered to pay the costs of these proceedings? 30. On the rst issue counsel relied on established judicial precedents outlining the legal threshold for acquiring title by adverse possession, and cited the cases of Paul Kamande Gicheha v Jacob Kinyua Kiragu [2018] eKLR, Celina Muthoni Kithinji v Saya Binti Swaleh & 8 others [2018] eKLR, and Mbira v Gachuhi (2002) 1 EALR 137 regarding the core statutory requirements. 31. Counsel submitted that the Defendant had proved that he had been in uninterrupted, non-permissive, open, and exclusive occupation for the prescribed period of 12 years and relied on the case of Mombasa Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR, Counsel submitted that the occupation was non-permissive and wholly inconsistent with any grant of license or consent by the registered proprietor. 32. Responding to the Plaintis’ argument that the Defendant could not plead adverse possession while simultaneously asserting allocation by Ngwataniro Farmers Company Limited, counsel relied on the case of Silas Waweru v Erastus Mwai Njoroge & another [2021] KEELC 1937 (KLR) and submitted that where rival allocation claims existed, equity and long, continuous physical occupation on the ground had to prevail over rigid adherence to paper title alone. 33. On the second issue as to whether the Defendant is entitled to be registered as an owner by virtue of adverse possession, counsel submitted that the Plaintis’ reliance on previous court proceedings Nakuru HCCC No. 28 of 1988, to argue that the statutory period was interrupted, was awed as those proceedings were instituted by the Defendant himself against the Plainti and not by the registered proprietor, hence time did not stop running. Counsel relied on the case of Mohammed Azhar S/O Mohammed Akram (Deceased) v Hardev Kalsi Singh & 4 Others, Civil Appeal No. 23 of 2019, and urged the court to dismiss the Plaintis’ claim with costs and allow the Defendant’s claim of adverse possession. Analyis And Determination 34. The issues for determination are as follows: a. Whether the Plaintis are entitled to an injunction and eviction order over Rare/terer Block 1/1907? b. Whether the Defendant has proved his claim of Adverse possession? 35. The Plaintis are the administrators of the estate of the Late Mwangi Wambugu who was the registered proprietor of the suit land. They produced evidence that the deceased acquired shares in Mutukunio Farmers Company and was allocated Rare/Terer Block 1/1907, and obtained a title deed in 1987. 36. Both PW1 and PW2 testied that although they never took physical possession of the land because people were already occupying it, they pursued the matter with the DO’s oce and later through court proceedings. Their case is that the Defendant has remained on the land without any lawful right and therefore should be evicted. 37. The Defendant testied that he entered the land in 1977, built his home and cultivated the land continuously and has remained in occupation ever since. DW1 stated that he had never been evicted and that he became aware of the deceased’s title in 1987. 38. The record shows that the late Mwangi Wambugu was a member of Mutukanio Farmer’s Company Limited and was allocated 4 shares and was later allocated Plot Nos 1904 and 1907, of which he got a title deed in 1987. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6275/eng@2026-10-07 5

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39. DW2 testied that all the receipts were in Ngwataniro Company Limited, his was in Mau Narok, and there were others in Rumuruti, Mau Narok, Elburgon, Bahati. He stated that his receipt read Mau Narok Ngwataniro where they balloted. DW2 further testied that the receipt by the Defendant does not read Ngwataniro, as it was issued by Gigil Matigari, which is the only receipt that does not have Ngwataniro. The Defendant admitted that Plot No. 1907 was altered and inserted but did not have the stamp of the company. This shows that the Defendant settled on the wrong plot which belonged to the Plainti. all the receipts from the 14 branches were written Ngwataniro. 40. The Defendant’s evidence was not consistent with the legal ownership of the suit land and that is why he chose to claim the suit land by way of adverse possession. The Defendant admitted that they had had disputes in respect of the suit land as early as 1987 with court cases running for many years, this means that his occupation has not been peaceful, quiet or uninterrupted. When you are ghting a court battle in respect of your occupation of a suit land, from the time you allegedly took occupation, then the doctrine of adverse possession cannot be available as a recourse. Even if we were to assume that the Defendant took possession, the same was interrupted by the Plainti’s cases before the Tribunal and the court. The Defendant’s remedy lies with the Gilgil Matigari Ocials whom he claims to have allocated him the suit land. They should be able to show him where his land is located and not the Plaintis’. 41. In the case of Joseph Gachumi Kiritu vs Lawrence Munyambu Kabura; civil Appeal no.20 of 1993 quoted in Presbyterian Church of East Africa (Uthiru Church) & another vs Kihoro & 3 Others (Civil Appeal 303 of 2018[2022] KECA 49 (KLR) (Civ) (4 February 2022) Judgment the Court of Appeal held that: “ time which has begun to run under the Act is stopped either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an eective entry into the land…” 42. In the case of Kim Pavey & 2 others v Loise Wambui Njoroge & another [2011] eKLR the court held: “ The passage from Cheshire Modern Law of Real Property which Potter JA made reference in Githu v Ndeete is important and deserves to be read in full. It is at page 894 section VI under the rubric the methods by which time may be prevented from running and the learned Author says: - “Time which has begun to run under the Act is stopped either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an eective entry into the land. The old rule was that a mere formal entry was sucient to vest possession in the true owner and to prevent time from running against him … He must either make a peaceable and eective entry or sue for the recovery of the land. Again, in the case of Githu v Ndeete [1984] KLR 776 at page 780 this Court held that time ceases to run when the owner asserts his right by taking legal proceedings or by an eective entry into the land or when his right is admitted by the adverse possessor.” 43. I have considered the Defendant’s argument that the previous proceedings did not interrupt time because the Defendant himself instituted some of the proceedings. For time to stop running in favour of the adverse possessor the owner asserts his right by taking legal proceedings or by an eective entry into the land or when the adverse possessor admits his right. 44. PW1 testied that Land Dispute No.7 of 1987 in respect of plot Nos. 1903,1904 and 1907, a decree was issued in 1988 in favour of his father. The Defendant has not established uninterrupted adverse https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6275/eng@2026-10-07 6

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possession for the prescribed statutory period after the Plainti’s father asserted his right over the suit property. The Defendant has not demonstrated that after the deceased asserted his rights and obtained the said decree, he remained in uninterrupted adverse possession for a period of twelve years. 45. Although the Defendant stated that he had been in physical occupation of the suit property, the requirement of continuous uninterrupted adverse possession for over 12years was not proved. He remained a trespasser on the suit land and the claim for adverse possession therefore fails. Having found that the Defendant has not acquired the suit property by adverse possession the Plaintis remain the persons entitled to the protection of their registered interest. 46. Consequently, I nd that the Plaintis have proved their claim on a balance of probabilities and are entitled to the orders sought in the Plaint as prayed. The Defendant failed to prove his claim for adverse possession and is dismissed with costs. I therefore make the following specic orders: a. An order of injunction is hereby issued restraining the Defendant by himself, his servants or agents from entering, trespassing or in any way interfering with RARE/TERET BLOCK 1/1907. b. The Defendant to vacate the suit land within 60 days failure to which an eviction order to issue. c. The Defendant’s Origination Summons for a claim of adverse possession is hereby dismissed. d. Defendant to pay costs of the suit. DATED, SIGNED AND DELIVERED AT NAKURU THIS 7TH DAY OF OCTOBER 2026. M. A. ODENY JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6275/eng@2026-10-07 7

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