Gicubi v Nthiga (Enviromental and Land Originating Summons 156 of 2017) [2025] KEELC 5860 (KLR)
The bottom line
#A Kenyan court dismissed a 30-year landowner's adverse possession claim because buying land and living on it doesn't defeat the seller's title.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff has acquired title to 1½ acres out of Nthawa/Riandu/3298 by way of adverse possession
Key legal issues
#Whether the Plaintiff's occupation was adverse rather than permissive
It was permissive; entry was under a sale agreement and the occupation was not hostile to the Defendant's title
The Plaintiff entered the land in 1994 pursuant to a sale agreement, which made his occupation referable to the agreement rather than hostile. A purchaser allowed into possession pending completion is not a trespasser. No formal rescission occurred, and the Plaintiff continued to assert rights under the same agreement, including by suing to enforce it at Siakago, so his possession never changed character.
When time begins to run for adverse possession by a purchaser in possession
Only when the permission is expressly revoked or the purchaser clearly abandons reliance on the agreement and holds adversely to the vendor
Citing Cheromei v Muigai, the court held that time does not run merely because a contract becomes void; the vendor must be made aware that the purchaser no longer relies on the permission, so the vendor can evict or re-assert title. Outright termination of the licence converts permissive possession into adverse possession.
Whether the Plaintiff completed the purchase so as to found adverse possession
No; he never paid the outstanding balance, and where payment is by installments limitation runs only after final payment
The agreed price was Kshs. 45,000/= but only Kshs. 33,000/= (or 32,500/= as claimed) was paid, leaving Kshs. 12,000/= outstanding. Following Gabriel Mbui v Mukindia Maranya, where a sale agreement with installment payments fails, the limitation period for adverse possession only begins after the last and final installment is paid.
Legal principles established
#- Possession of a purchaser under a sale agreement is permissive, not adverse, until the agreement is repudiated or the permission expressly revoked and the purchaser remains in possession against the vendor's will
- Where the purchase price is payable in installments, time for adverse possession runs only from payment of the last installment
Court orders
#- 1.The amended Originating Summons dated 20/4/2021 is dismissed with costs to the Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over claims to title to land (adverse possession claim under the Limitation of Actions Act)
Relief refused
#Declaration that the Plaintiff is entitled to 1½ acres out of Nthawa/Riandu/3298 by adverse possession
Plaintiff's occupation remained permissive under the sale agreement and was never hostile or adverse to the Defendant's title
Costs
Dismissed with costs to the Defendant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Plaintifi’s possession cannot be said to be adverse in law because he entered the land under a sale agreement and his occupation was with the Defendant’s permission.
For time to start running for purposes of adverse possession, the purchaser’s occupation must become adverse that is, it must cease to be referable to the agreement and instead become hostile to the registered owner’s rights.
The period of limitation starts to run on the date of the payment of the last installment of the purchase price.
The amended Originating Summons dated 20/4/2021 is dismissed with costs to the Defendant.
Issues in the judgment
#The judgment numbers its final paragraph '13.' immediately after paragraph 17, an evident typographical numbering error
The amount paid by the Plaintiff is left unresolved in the judgment, which states it could have been Kshs. 32,500/= or Kshs. 33,000/=
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gicubi v Nthiga (Enviromental and Land Originating Summons 156 of 2017) [2025] KEELC 5860 (KLR)", Case Analysis (2025). Amended Originating Summons dated 20/4/2021 (Embu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5860/eng@2025-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.