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ELCPartially AllowedELC Case No. E029 of 2022 (O.S)· [2026] KEELC 2651 (KLR)

Ngari (Suing on behalf of Ngari Musembi) v Nzioki (Environment and Land Case E029 of 2022) [2026] KEELC 2651 (KLR)

Environment & Land Court
28 April 2026
6,794 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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The Embu Environment and Land Court dismissed a land buyer's adverse possession claim because his father occupied the land as a permitted caretaker, not an owner.

What this practically means

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Executive summary

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The plaintiff, Evans Kariuki Ngari, suing on behalf of his late father Ngari Musembi under Sections 37 and 38 of the Limitation of Actions Act, Section 28 of the Land Registration Act and Order 37 of the Civil Procedure Rules, claimed parcel Nthawa/Kirie/729 by adverse possession and, in the alternative, that the registered owner, Charity Nzioki, holds it in trust for him. He sought a declaration of entitlement by adverse possession of over twelve years, registration as proprietor, and costs. The defendant, registered owner since first registration in 1993, denied the claim, asserting the plaintiff's late father was her caretaker who accessed the land with permission, and filed a counter-claim seeking removal of the caution lodged in 1995 and a permanent injunction. At trial, the plaintiff testified with three supporting witnesses, one of whom (PW4) stated he lived on and leased the land from the plaintiff's father. The court found the claim of trust and the jurisdictional issue abandoned and rejected them. On adverse possession, it held the plaintiff failed the test of possession without force, secrecy or permission: the caution showed the father entered as a licensee, PW4's lease evidence contradicted personal occupation, and the defendant's photographs showed the land unused. The plaintiff also failed to concede the defendant's title. The suit was dismissed in its entirety; the counter-claim was allowed, with the caution ordered removed and a permanent injunction granted restraining the plaintiff from trespassing or interfering with the land. The plaintiff was ordered to pay the costs of both the suit and the counter-claim.

Key legal issues

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01

Whether the plaintiff proved adverse possession of Nthawa/Kirie/729

Holding

Adverse possession was not proved and the plaintiff's entire claim fails

Reasoning

The court applied the tripartite test of nec vim, nec clam, nec precario. The caution on the register showed the plaintiff's late father entered as a licensee, connoting a permissive arrangement, consistent with the defendant's caretaker claim. PW4's evidence that the land was leased to him contradicted the plaintiff's claim of personal occupation, and the defendant's photographs showed the land was not in use. The plaintiff also failed to recognize the defendant's title.

p. 32
02

Whether the defendant's counter-claim for removal of the caution should succeed

Holding

The prayer for removal of the caution is granted

Reasoning

A caution protects an interest a person has in land. With the dismissal of the plaintiff's case, the raison d'etre for the caution dissipated, and the cautioner, who placed it as a licensee, is now deceased.

p. 32
03

Whether a permanent injunction should issue against the plaintiff

Holding

A permanent injunction is granted as prayed

Reasoning

The defendant has property rights to protect; the plaintiff disregarded the licensee status, views the land as clan or family land, and would probably continue claiming ownership, so a restraining order is necessary to prevent trespass or interference.

p. 34
04

Whether the plaintiff's alternative claim of trust and the jurisdictional objection stood for determination

Holding

Both are rejected and/or dismissed as abandoned

Reasoning

The issues of trust and jurisdiction were not addressed at the hearing nor in the plaintiff's submissions, and the promised preliminary objection was never raised; the outcome does not turn on them.

p. 23

Legal principles established

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  • Adverse possession requires actual, open, notorious, continuous and exclusive occupation to the exclusion of the registered owner for twelve years, without force, secrecy or permission
  • A claimant in adverse possession must concede the registered proprietor's title; a claim of fraudulent acquisition is inconsistent with adverse possession
  • A permanent injunction is granted where the plaintiff shows a legal right to protect and a probability of future serious injury, and is not barred merely because damages may be adequate

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The trust claim and the jurisdiction issue raised by the plaintiff are rejected and/or dismissed as abandoned
  3. 3.The prayer for removal of the caution placed on the land register is granted
  4. 4.A permanent injunction is granted restraining the plaintiff from trespassing on or interfering with the disputed land
  5. 5.The plaintiff is ordered to pay the costs of the suit and the counter-claim

Authorities

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Legislation

  • Limitation of Actions ActSections 37, 38, 7, 13
  • Land Registration ActSections 28, 2, 73, 28(h)
  • Civil Procedure RulesOrder 37
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSection 27

Cases cited (22)

  • Wambugu -vs- Njuguna
    [1983] KLR 172
  • Githu –vs- Ndeete
    [1984] KLR 776
  • Kimani Ruchine –vs- Swift Ruther Fords Co. Ltd.
    [1980] KLR 10
  • Samuel Ngari Kigoro –vs- Njuki Kigor
    ELC No. 299 of 2015 (OS)
  • George Ogake Pius –vs- Esther Nyasani Makori & 2 others
    [2018] eKLR
  • Kweyu –vs- Omutut
    [1990] KLR 709
  • Peter Njau Kairu –vs- Stephen Ndung'u Njenga & Another
    CA 57 of 1997
  • Samuel Miki –vs- Jane Njeri Richu
    C.A No. 122 of 2001
  • Mwondu –vs- John & Another
    (ELC No. 1 of 2020) [2023] KE ELC 18965 (KLR)
  • Kieba M'Inanga –vs- Isaaya Theuri M'Lintari & Another
    [2018] eKLR
  • Njenga Chogera –vs- Maria Wanjira Kimani & 2 others
    [2005] eKLR
  • Peter Ndung'u
    [2000] eKLR
  • Juletabi African Adventure Limited & Another –vs- Christopher Michael Lockey
    [2017] eKLR
  • Ireri –vs- Kasimu
    (ELCA No. 10 of 2018) [2023] KE ELC 15931 (KLR)
  • Haraf Traders Limited –vs- Narok County Government
    [2022] eKLR
  • Republic –vs- Rosemary Wairimu Munene, Ex Parte Applicant
    JR. No. 6 of 2014
  • Mtana Lewa -vs- Kahindi Ngala Mwagandi
    [2015] KECA 532 (KLR)
  • Johnson Muigai Njami –vs- Lolise Mutura Njami
    (Civil Apepal No. 34 of 2018) [2025] KECE 492 (KLR)
  • Richard Wefwafwa Songoi –vs- Ben Munyifwa Songo
    [2020] eKLR
  • Catherine Kariko & 3 others –vs- Evaline Rose
    [2020] eKLR
  • Haro Yonda Juaje –vs- Sadaka Ozengo Mbauro & Kenya Commercial Bank
    [2014] eKLR
  • Watson Wahome Njuru -vs- Co-operative Bank of Kenya Ltd
    HCC No. 67 of 2006 [2010] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act, 2011; Sections 2 and 73 of the Land Registration Act

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, "Ngari (Suing on behalf of Ngari Musembi) v Nzioki (Environment and Land Case E029 of 2022) [2026] KEELC 2651 (KLR)", Case Analysis (2026). ELC Case No. E029 of 2022 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2651/eng@2026-04-28

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