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ELCDismissedOriginating Summons dated 20th June 2025 (Meru ELC)· [2026] KEELC 325 (KLR)

George Kiunga M'Rinkanyaa & Another v Nderia Farmers' Cooperative Society Limited

Environment and Land Court
29 January 2026
5,934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru dismissed a claim for land by adverse possession because the occupants were on the land with the owner's permission, not against the owner's will.

What this practically means

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Executive summary

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The Plaintiffs brought an Originating Summons dated 20th June 2025 under section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, seeking declarations that they had acquired LR No. Abothuguchi/Gitie/437 by adverse possession after over 12 years of continuous occupation, and that the Defendant's title be extinguished and the register rectified. The Defendant, a cooperative society to which the suit land was transferred after the collapse of Nkando Farmers' Cooperative Society, denied the claim, averring that the Plaintiffs' entry and farming on the vacant portions occurred in 2024 with the society's permission, subject to instructions not to erect structures. The matter proceeded to full trial by viva voce evidence, with three witnesses for the Plaintiffs and two for the Defendant. The court framed two issues: whether the ingredients of adverse possession were established, and what reliefs should issue. It held that adverse possession requires open, continuous, uninterrupted and non-secretive possession known to the registered owner (nec vi, nec clam, nec precario), and that the Plaintiffs lacked animus possidendi since they only discovered the Defendant's ownership in February 2025. The uncontroverted replying affidavit of the Defendant's chairman established that occupation was permissive; the Plaintiffs neither filed a supplementary affidavit nor cross-examined DW1 on these averments. The court also drew an adverse inference from the 2nd Plaintiff's failure to testify despite incriminating evidence that he held the Defendant's machinery in safe custody as area manager. The suit was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the Plaintiffs established adverse possession

Holding

No - their occupation was with the Defendant's permission and lacked the requisite hostility and animus possidendi

Reasoning

The court found the Plaintiffs did not even know who owned the land until February 2025 when they bought a green card, negating animus possidendi. The Defendant's uncontroverted replying affidavit averred that the Plaintiffs entered in 2024 with permission to farm vacant portions and were barred from erecting structures. The 2nd Plaintiff, entrusted with machinery as area manager, chose not to testify, inviting an adverse inference. Permission negates adversity.

02

Whether the Plaintiffs discharged the burden of proof

Holding

No - the burden lay squarely on the Plaintiffs and was not discharged

Reasoning

Relying on sections 107-109 of the Evidence Act and the Mucheru and Karugi authorities, the court reaffirmed that the burden on a plaintiff remains constant throughout the trial and is not lessened where the case is undefended or heard by formal proof. The Plaintiffs failed to controvert the Defendant's evidence or cross-examine DW1 on the permission averments.

p. 11

Legal principles established

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  • Consent and permission by the registered owner of land negates a claim of adverse possession
  • A claimant must prove open, continuous, uninterrupted and non-secretive possession known to the registered owner (nec vi, nec clam, nec precario)
  • A claimant unaware of the registered owner lacks animus possidendi
  • Failure to respond to pertinent averments in a replying affidavit renders them unrebutted

Court orders

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  1. 1.The Plaintiffs' suit be and is hereby dismissed
  2. 2.Costs of the suit be and are hereby awarded to the Defendant
  3. 3.The costs in terms of clause (ii) shall be agreed upon and in default be taxed in the conventional manner
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22) and Order 37 Rule 7 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "George Kiunga M'Rinkanyaa & Another v Nderia Farmers' Cooperative Society Limited", Case Analysis (2026). Originating Summons dated 20th June 2025 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/325/eng@2026-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.