Marete & 4 others v Murungi; Mukiri & another (Interested Parties) (Enviromental and Land Originating Summons E027 of 2025) [2026] KEELC 2796 (KLR)
The bottom line
#A Meru court ruled that a family living on land for over 12 years legally owns it, even though the registered owner later sold it to others.
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 plaintiffs have tendered/adduced evidence to demonstrate open, continuous and uninterrupted possession/use of the suit property or otherwise
- 2.Whether the defendant has ever taken steps to recover the suit properties or otherwise
- 3.What reliefs (remedies) ought to be granted
Key legal issues
#Whether the plaintiffs proved open, continuous and uninterrupted possession of the suit property
The court found the plaintiffs proved cogent and credible evidence of open, continuous and uninterrupted possession exceeding 12 years, corroborated by the defendant and his witnesses.
PW1 testified the deceased father entered the land in 1970 and the family continued in possession after his death. The Land Disputes Tribunal proceedings of 2011 confirmed the father was in occupation. The Assistant Chief's letter, unchallenged, confirmed the plaintiffs' family used the land. The photographs, accompanied by an electronic certificate under section 106B of the Evidence Act, were admissible and their contents unimpeached. The defendant and his witnesses conceded the plaintiffs are on the land.
Whether the defendant took any steps to recover the suit property
The defendant took no lawful steps to recover the land within 12 years; the criminal complaint for forcible entry lodged after time had lapsed did not interrupt the running of limitation.
The defendant only lodged a criminal complaint leading to forcible entry charges against some plaintiffs, but by then the 12-year period had long lapsed and his rights stood extinguished under Section 7 of the Limitation of Actions Act. Assertion of right that stops time requires legal proceedings or effective entry, not a criminal complaint. The defendant also filed no counterclaim for vacant possession and was at peace with the status quo.
Whether the subdivision, sale and registration of portions in favour of the interested parties conferred title
No title was conferred; the defendant's rights had already been extinguished by the time of the 2023 subdivision and transfers.
Applying Njuguna Ndatho v Maasai Itumo, a transfer of land subject to adverse possessory claims does not defeat rights already acquired. Since the defendant's title stood extinguished before the 2023 subdivision and sale, the interested parties acquired no lawful title to the resultant subdivisions.
Probative value of photographs tendered with an electronic certificate
Photographs accompanied by an electronic certificate under section 106B of the Evidence Act are admissible and probative; authentication by a surveyor is not required, and their contents can only be impeached by evidence or cross-examination, which was not done.
Defence counsel argued the photographs lacked probative value for want of authentication by a surveyor. The court held this a misapprehension of the law: the electronic certificate sufficed under section 106B. Defence did not cross-examine PW1 on who took the photographs, where, or what they depicted, and there was no evidence controverting them.
Legal principles established
#- A claimant in adverse possession must prove the date of entry, the nature of possession, knowledge by the owner, duration, and openness of possession for the requisite 12 years.
- Adverse possession arises from the default or inaction of the owner; the possession must be without force, stealth or licence, adequate in continuity, publicity and extent.
- Time under the Limitation of Actions Act ceases to run only when the owner asserts his right through legal proceedings or effective entry, or when his right is admitted by the adverse possessor.
- A sale and transfer of a parcel of land subject to adverse possessory claims does not defeat rights already acquired or in the process of acquisition.
Court orders
#- 1.Declaration that the plaintiffs have acquired title to their respective portions of land previously comprised in title Abothuguchi/L-Kiija/616, now subdivided into parcels Abothuguchi/L-Kiija/3400, 3401 and 3402, through adverse possession (Zaverio Mutibi Marete - 6 acres; Richard Mwangi Marete - 6 acres; Serafina Karegi Marete - 3 acres; Haron Mwongera Marete - 4 acres; William Muthamia Marete - 3 acres)
- 2.Declaration that the defendant's and/or interested parties' rights and interests over the portions occupied by the plaintiffs have been extinguished under Section 7 of the Limitation of Actions Act
- 3.Cancellation of the subdivision and transfer of Title No Abothuguchi/L-Kiija/616 into Abothuguchi/L-Kijaa 3400, 3401 and 3402 and the subsequent transfer to third parties, and rectification of the register to reinstate LR No Abothuguchi/L-Kiija/616
- 4.Order directing the defendant to execute the requisite transfer instruments and transfer the portions of the original parcel to the plaintiffs within 60 days
- 5.In default, the Deputy Registrar of the court empowered to execute the necessary instruments to facilitate the subdivision and transfer
- 6.Plaintiffs to bear survey fees, transfer fees, stamp duty and registration fees, subject to due advice by designated officers/government departments
- 7.Permanent injunction restraining the defendants and/or interested parties, their agents, servants or assigns from entering, interfering with or disrupting the plaintiffs' occupation and use of the said parcels
- 8.Costs of the suit awarded to the plaintiffs, borne by the defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 7, 17, 37 and 38 of the Limitation of Actions Act, Cap 22; Order 37 Rules 7 and 8 of the Civil Procedure Rules 2010
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.
There be and is hereby issued a declaration that the plaintiffs have acquired title to the respective portions of land previously comprised in title Abothuguchi/L-Kiija/616, now subdivided into parcels Abothuguchi/L-Kiija/3400,3401 and 3402 through adverse possession
the subdivision and transfer of Title No Abothuguchi/L-Kiija/616 into Abothuguchi/L-Kijaa 3400, 3401 and 3402 and the subsequent transfer to third parties, are hereby cancelled and the register is rectified to reinstate LR No No Abothuguchi/L-Kiija/616
the lodgment of the criminal complaint; the arrest of the Plaintiffs; and the preferment of the charge of forcible entry long after the lapse of 12 years did not interrupt the running of time.
Time ceases to run under the Limitation of Actions Act either when the owner asserts his right or when his right is admitted by the adverse possessor.
the sale and transfer of a parcel of land which is subject to prescription of adverse possessory claims does not defeat or negate the rights which have since been acquired or are in the process of acquisition.
the contents of the photographs, duly accompanied by an electronic certificate, could only be impeached by evidence or by cross-examination. This was not done.
Cost of this suit is hereby awarded to the Plaintiffs, and same shall be borne by the defendant.
Issues in the judgment
#The judgment inconsistently states the registration date of the original parcel to the defendant - 1988 in the pleadings and evidence of PW1 versus 1980 in the defendant's testimony - without reconciling the discrepancy.
The judgment refers to the Limitation of Actions Act inconsistently as Chapter 22 and as Chapter 12.
The judgment cites the limitation case as 'Mwangi Githu v Livingstone Ndeete [1980] KECA 35 (KLR)' while the plaintiffs' submissions list 'Githu Vs Ndeete 1984 eKLR', suggesting the same authority with differing citations.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marete & 4 others v Murungi; Mukiri & another (Interested Parties) (Enviromental and Land Originating Summons E027 of 2025) [2026] KEELC 2796 (KLR)", Case Analysis (2026). Originating Summons dated 7.10.2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2796/eng@2026-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.