Nyoike v Kamori (Enviromental and Land Originating Summons E029 of 2021) [2025] KEELC 5871 (KLR)

that the plaintifi had not been on the land for a period exceeding 12 years but for less than two years since the advent of Covid 19 when he was restrained by the lockdown in Nairobi from travelling to visit the land for the two years. 4. He denied that the plaintifi had been in quiet possession since he took steps to evict them from the suit land and that the plaintifi acknowledged his notice to vacate the land by filing this suit. He expressed the view that the letter of consent and application to the LCB were a forgery. He contended that the plaintifi did not have a valid claim to seek to be declared as the owner of the suit land. 5. On 2/4/2025 parties agreed by consent that the suit would be disposed of through written submissions. The Defendants counsel informed the court on 4/6/2025 that he had not filed his submissions and that he would file them on that day. He urged the court to give a date for the delivery of the judgment. The court had previously given the Defendant time to file his submissions. The Plaintifi filed her written submissions which the court has considered. 6. The issue for determination is whether the plaintifi has acquired title to the suit land through adverse possession. Adverse possession has been defined in various cases. In Mtana Lewa v Kahindi Ngala Mwagandi [2015] KECA 532 (KLR) the court defined adverse possession as a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for twelve years. That the process sprang into action by default or inaction of the owner. The essential prerequisites being that possession of the adverse possessor was neither by force nor stealth nor under the license of the owner. The possession must be adequate in continuity, in publicity and in extent to show that it was adverse to the title owner. 7. In Wambugu v Njuguna [1983] KLR 172, the court laid down the guiding principles for determining a claim for adverse possession where it was held that in order to acquire title to land which has a known owner by the statute of limitations, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. The proper way of assessing proof of adverse possession was whether or not the title holder had been dispossessed or had discontinued his possession for the statutory period and not whether or not the claimant proved that he had been in possession for the requisite number of years. 8. The ingredients for adverse possession were summarised in Samuel Kihamba v Mary Mbaisi [2015] KECA 853 (KLR) were that one must prove and demonstrate that with the intention to have the land, he had occupied the land openly without force, without secrecy, and without the permission of the land owner. These elements are captured in the Latin phraseology, nec vi, nec clam, nec precario with the additional requirement of animus possidendi, or the intention to have the land. 9. Applying those principles to the facts of the present case, it is not in dispute that the defendant is the registered proprietor of land parcel Nthawa/Riandu/1194. The plaintifi asserts that she has been in possession of the land since 1986 when her late husband purchased it from the defendant’s late father. She stated that her late husband and the defendant’s late father entered into an agreement for the sale of the suit land at the agreed purchase price of Kshs. 54,000/=. That her husband paid an initial deposit of Kshs. 48,500/= and they took possession of the land and that he paid the balance of Kshs. 5500/ = gradually. 10. It was her evidence that the purchaser and the buyer went to the LCB and obtained consent to transfer the land which she produced in evidence. The consent to transfer is dated 1/1/1986. That the parties executed a transfer form for the land which was produced in evidence. The transfer form is dated 22/9/1997 and is duly executed by the seller, Kamori Njeru and the buyer Francis Nyoike Gathuri. It was her testimony that her husband was unable to raise the statutory fees and stamp duty fees necessary to efiect the transfer and that he died before the suit land could be transferred to his name. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5871/eng@2025-07-03 2

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11. According to the plaintifi, her entry into the land was therefore pursuant to the agreement for sale. In such circumstances, occupation becomes adverse only upon payment of the full purchase price, or where payment is by instalments, upon payment of the last instalment. It was held in Gabriel Mbui v Mukindia Maranya [1993] KEHC 161 (KLR) where adverse possession arose out of a sale of agreement under which the payment of the purchase price by the adverse possessor was by installments, and the agreement fails, the period of limitation afiords an action for adverse possession only after the last and final payment has been made to complete the agreed purchase price. That the period of limitation started running on the date of the payment of the last installment of the purchase price. 12. The Plaintifi testified that the full purchase price was paid and that the Defendant’s late father executed all the necessary transfer documents in favour of her late husband but the transfer was not efiected during their lifetime. She produced the acknowledgements for the balance of the purchase price written in the Kikuyu language. The Defendant’s advocate objected to the production of the translated documents for want of a certificate of translation. The Plaintifi’s counsel agreed that those could be excluded by the court in the determination of the dispute. 13. The Defendant, merely denied that there was a sale. His witnesses maintained that his father never sold the suit land. From the evidence adduced by the Plaintifi, it is not plausible that the sale did not take place. The Plaintifi produced evidence that the transfer process was initiated including obtaining LCB consent and the signed transfer form. She was in possession of the original title deed. She stated that the Defendant only obtained a new title deed after reporting that the original one got lost. The fact that the original title was in the plaintifi’s possession further supports her claim that the sale transaction was concluded save for the registration of the transfer. 14. Although the Defendant claimed that the LCB consent and transfer forms were forged, he did not provide any proof to support that allegation. The burden of proof rested on him, and he failed to discharge it. The court is therefore not persuaded by his assertion that the sale never occurred. 15. On whether the Plaintifi had been in open, notorious, and exclusive possession of the suit land without secrecy, the witness statement of Jeremiah Mburu, who testified that he was involved in identifying the land, negotiating the price, and drafting the sale agreement. He confirmed that the Plaintifi had been in occupation of the land since 1986.The Plaintifi also produced a letter from the Chief confirming her occupation since 1986. She testified that she had buried her kin on the land including her daughter who died in 1994, her husband in 2009 and another daughter in 2020. She produced all their death certificates. She produced photographs showing the developments she had made on the land. 16. The defendant merely denied that the plaintifi had been in occupation of the suit land since 1986 and asserted that she only entered the land during the lockdown following the Covid 19 pandemic. He claimed that the plaintifi built the permanent house during that period a fact that even the plaintifi did not deny. He did not address the contention by the plaintifi that she buried her kin on the land. His witnesses focused on denying the sale and the plaintifi’s role in planting the mango trees. 17. The photographs produced by the plaintifi show semi-permanent structures on the suit land, one made of mabati and another made of mud. Apart from the mango trees, there are other fruit trees including banana trees, paw paw trees among others. It is improbable that those trees could have matured in 2020 during the pandemic when it is claimed that the plaintifi took possession of the land and when this suit was filed. The defendant claimed to have been utilising the suit land but did not provide any evidence to support this contention. 18. The balance of the purchase price is said to have been paid on 19/1/1997. From that date until 26/7/2021 when this suit was filed, over 24 years had lapsed which is over and above the statutory https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5871/eng@2025-07-03 3

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threshold of 12 years prescribed by the Limitation of Actions Act for a claim of adverse possession to succeed. 19. On a balance of probabilities, the court is persuaded that the plaintifi has been in continuous, open, and exclusive occupation of the suit land for more than 12 years. 20. The court is satisfied that the plaintifi has proved that she has become entitled to land parcel Nthawa/ Riandu/1194 through adverse possession and grants the prayers sought in the suit dated 23/7/2021. 21. Since the transaction was not concluded during the lifetime of the parties to the sale transaction, each party will bear its costs. DELIVERED VIRTUALLY AT EMBU THIS 3RD DAY OF JULY 2025. K. BOR JUDGE In the presence of: Ms. M. Ngari holding brief Mr. N. Muriithi for the Plaintifi No appearance for the Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5871/eng@2025-07-03 4

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