John Theuri (sued as the legal Administrator of the Estate of the late Veronica Wangeci Theuri) v Anastasia Nyanjau Gikonyo (sued as the administrator of the estate of John N. Gikonyo (deceased))

2. The summons is supported by the affidavit of John Theuri sworn on 9 th November, 2023, where he deponed that he is the Legal Administrator of the estate of his late mother, Veronica Wangechi Theuri, pursuant to a grant issued to him in Nakuru CMCC Succession No. 39 of 2018 dated 9 th February, 2018. 3. He stated that his mother had been a shareholder of Nakuru Mutukanio Farmers Co. Ltd. and had been allocated Plot No. 138, now known as Nakuru/Rare Block 1/138, in 1983. He averred that on or about 14 thApril, 1986, the late John N. Gikonyo had caused the title to the property to be issued to himself, prompting his mother to immediately lodge a complaint through the Provincial Administration seeking the return of the title issued erroneously. 4. The deponent further stated that his family had remained on the suit land since 1983, having fenced it and planted trees, and that they had been in exclusive use and control of the land without interruption from the Respondent or any other person. Although the land remained registered in the name of John N. Gikonyo, he believed this registration had been a mistake that ought to be corrected. 5. He further deponed that around 2005, the Defendant had begun laying claim to the land, leading his mother to move the Njoro Land Disputes Tribunal in 2007, which heard and determined the dispute in her favour. When his mother subsequently forwarded the Tribunal's award and the 2

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resulting court decree to the Land Registrar, Nakuru, she was informed that the Registrar was unable to comply with the court's orders. 6. In response, the Respondent filed a replying affidavit dated 28th November, 2023, and deponed that she is the duly appointed Administrator of the Estate of her late husband, John N. Gikonyo, having been issued with a confirmed grant, and that her correct name is Anastasia (not Anastacia) Nyanju Gikonyo, as misstated by the Plaintiff. 7. It was her disposition that her late husband acquired the suit property, Land Reference No. Rare/Teret Block 1/138, in the early 1980s and was issued with title on 14th April,1986, becoming the first absolute registered proprietor of the land under the (now repealed) Registered Land Act, Cap 300, hence the title was absolute and indefeasible. 8. She deposed that immediately after acquiring the land, she and her husband fenced it, planted trees, and used it for maize farming, making periodic visits from their home in Nakuru town to check on the crops. She stated that due to tribal land clashes in the area, they never built a permanent homestead on the land but continued to reside in Nakuru town. 9. Following her husband’s death in a road accident on 20 th May, 1995, the Defendant stated that she continued cultivating the land and visiting it regularly until around the year 2000, when she found herself unable to continue active cultivation due to the burden of sustaining her family single3

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handedly, though she continued to make periodic visits and permitted neighbours to graze livestock on the land. 10. The Defendant averred that around 2005, she discovered that nappier grass had been planted on a portion of the suit land, and upon inquiry established that it had been done by the late Veronica Wangeci Theuri (the Plaintiff's predecessor in title), who resided a few kilometers away. Despite repeated demands that she ceases trespassing; Veronica Wangeci Theuri persisted in her occupation. 11. It was the Defendant’s case that Veronica Wangeci Theuri instituted Land Dispute No. 99 of 2007 before the Chief Magistrate's Court at Nakuru (and a subsequent Land Tribunal decision which she contended was unenforceable, having been made against her in her personal capacity rather than against the registered proprietor); and High Court Civil Suit No. 80 of 2008, against her husband and later withdrawn by consent on 20thDecember,2014 after it emerged that he had passed away. The Defendant urged the court to dismiss the Plaintiff’s case with costs. PLAINTIFF’S CASE 12. PW1, John Theuri adopted his witness statements dated 21st December,2020, and 27th January, 2022, as his evidence in chief and relied on his affidavit sworn on 26th October 2022, and produced the list of documents dated 22 nd August, 2017, and 17th January 2022, as Pexh 1-6, 7 to 13 respectively. 4

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13. PW1 referred to PMF1-3 dated 30th August, 1988, from the District Commissioner, Nakuru, addressed to John N. Gikonyo, which letter required John N. Gikonyo to return the title deed to the District Commissioner after it was discovered that he had taken the wrong title deed. He stated that a copy of the letter had been given to his mother, which he produced as PExh.3. 14. PW1 further testified that his mother was still using the land in 1988, and referred to PExh.7 a letter dated 17th October, 1989, in respect of Plot No. 138, addressed to Daniel Kariuki, who remained their neighbour. He stated that his mother had been copied in the letter and that the dispute involving Daniel Kariuki concerned the boundary of the property, which was rectified in October 1989. 15. PW1 stated that the Defendant had neither lived in nor occupied the suit property, and was unaware of any napier grass planted on the property. He denied that the photograph in the report was from the suit property, but identified photograph No. 3 as showing the fence and a mud- walled house belonging to his mother. PW1 acknowledged that his mother owned another parcel, No. 395 in Mutukanio, but stated that there was no dispute concerning that parcel. 16. Upon cross-examination by counsel for the Defendant, PW1 stated that he was the son of Veronica Wangeci and that the dispute relating to the land had commenced in 2005, but the case was filed in 2007. He stated that he had five brothers and no sisters, but none of his siblings would testify in the 5

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matter. He confirmed that they had filed a Succession Cause in respect of his mother’s estate and got a grant of letters of Administration. PW1 further stated that his mother was the owner of the suit property but had been mistakenly registered in John Gikonyo’s name. Further, they had been in possession of the suit land since 1983. PW1 referred to PExh 3 requiring John Gikonyo to return the title and stated that the parties had been asked to verify their respective titles. 17. PW1 was referred to PExh 2, the green card which indicated that it was opened on 11th April ,1986, and stated that he had produced various receipts relating to the land from Nakuru Mutukanio, Gilgil and Matigari and no one from the company would come to testify. It was PW1’s evidence that his mother had made several complaints concerning the suit property and had filed CMCC LDT 99 OF 2007. 18. Upon re-examination by counsel, PW1 clarified that the land in dispute was Nakuru/Rare/Tereti Block 1/138 and stated that it belonged to Veronica Wangeci. He explained that he had become involved in the proceedings following his mother’s death in 2017 and that the grant issued in respect of her estate gave him authority to prosecute the case. 19. PW1 testified that Nakuru Mutukanio comprised several companies, about 14 companies and that members of the respective companies were allocated land through balloting, and one had to be a member to be able to ballot. 6

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Further, he had not seen any membership document showing that John Gikonyo was a member of any of the companies. 20. PW1 further stated that although many families had fled during the postelection violence, they later returned, and maintained that John Gikonyo had never been on the suit land as his mother had been in possession of it. He further stated that apart from the water and motor vehicle receipts, he had also produced other receipts in support of his case. 21. PW2 Paul W. Waweru, adopted his witness statement dated 27th January, 2022 was adopted as his evidence, and stated that Veronica Wangechi Theuri was his neighbor since 1986, and an owner of the suit parcel of land No. Teret Block 1/138. PW2 further stated that he neither knows Anastacia Nyanjau nor John M. Gikonyo. 22. Upon cross-examination by Counsel for the Defendant, PW2 stated that he cannot remember when Veronica died, but used to work for her. It was PW2’s testimony that in 1992 Veronica left the suit land but, he and the other workers remained on the suit land. He further stated that the suit land is being used by John Theuri and the family of Veronica Wangechi, and that John Gikonyo has never owned the suit land. Upon re-examination by counsel, he stated that Veronica used the suit land until her death. 23. PW3 Danson Kamau Kanyuri, adopted his statement dated 27th January, 2022, as his evidence, and testified that he knew Veronica Wangechi Theuri, who was a neighbour, since 1985, and is now deceased. He denied knowing 7

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John Gikonyo and Anastasia Nyanjau Gikonyo. PW3 further testified that Veronica had been using the land since 1985 24. Upon cross-examination by counsel for the Defendant, PW3 testified that people had gotten onto her parcel in 1985, which led to her filing a complaint but did not know the people she had a dispute with. 25. PW4 David Nganya, adopted his statement dated 27th January, 2022, as his evidence and testified that he knew Veronica Wangechi and John Theuri, who was her son, but denied knowing John Gikonyo and Anastasia Nyanjau Gikonyo. It was his testimony that he used to work for Veronica where he planted napier grass and fenced the suit land. 26. On cross-examination by counsel for the defendant, PW4 stated that he neither knew how Veronica got the suit land nor whether she had a dispute with anyone. He stated that Peter is cultivating and he still works for John on the suit land. DEFENCE CASE 27. DW1 Joseph Mureithi Mugendi, a Licenced Surveyor, testified that he received instructions sometime in December 2021 from the Defendant’s Advocate to identify the suit land, take photographs, confirm acreage and file a report, which he filed and produced as Dex No.1 8

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28. DW1 testified that the land is within RIM Rare/Teret/1/138 in Sheet No.1 approximately 5.3 Kms from Egerton University gate along Njoro Narok tarmac road, 300 meters from the tarmac to the right hand side.DW1 further testified that there was a temporary structure on the suit land but it did not look old, it was like 3years old. He stated that according to the record the land belongs to John Gikonyo. 29. Upon cross-examination by counsel for the Plaintiff, DW1 stated that he visited the suit land 2 weeks before he wrote the report, and his task was to measure and confirm the acreage. DW1 stated that he identified the beacons, and that the sketch has GPS coordinates, and further that the land is divided into two but he did not know who had divided it. It was DW1’s testimony that there was nappier grass on the land but he did not know who had planted it. He also stated that there was a temporary site house which was approximately 3 years old, but he did not know who had built it. 30. DW1 further stated that the property had an old fence and had trees but he neither knew who had put up the fence nor planted the trees. He confirmed that he had done other surveys in Rare/Teret area and that Rare/Teret/Block 1 originally belonged to Nakuru Mutukanio land buying company. He stated that the block was subdivided and given to members of Nakuru Mutukanio Company. 31. On re-examination by counsel, he stated that his scope of work was to identify the parcel, confirm acreage, take photographs and make a report. 9

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32. DW2 Andrew N. Gikonyo, adopted his affidavit dated 17 th January, 2022, as his evidence, and stated that he knows the Plaintiff and produced documents annexed to the affidavit as Dex No.2a and 2b. He stated that the suit land was allocated to his late father John N. Gikonyo. 33. Upon cross-examination by counsel for the Plaintiff, he maintained that he is the son of the late John M. Gikonyo who died on 20 th May, 1995. He stated that his mother got letters of Administration in 1997, and that the suit land is still in the name of John N. Gikonyo and did not know why the mother had not transferred the land in her name. 34. DW2 stated that the father did not obtain the land fraudulently, and further, that the Plaintiff had sued his mother at the Land Disputes Tribunal but did not know the outcome of the case. He stated that the Tribunal told the Plaintiff that she had sued the wrong person. 35. DW2 stated that he is aware that the Plaintiff claims that she has been on the suit land for more than 12years, but the affidavit did not respond to that fact. DW2 testified that he has been farming for the past 15years and has not cultivated on this land. He admitted that they do not have any other documents to show how his father got the land apart from the title or any other land in the Rare/Teret area. 10

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36. DW2 stated that he does not know whether the Plaintiff bought a share of Nakuru Mutukanio Farmers Co. Ltd. He further stated that his mother did not file a case against the Plaintiff, and that the structure was constructed in 2021, after COVID- 19. It was his evidence that his mother planted nappier grass, but he cannot recall when they last cultivated the land. On reexamination by counsel, he stated that it is his parents who fenced and planted trees on the suit land. 37. DW3 Anastasia Njanjau Gikonyo the defendant adopted her replying affidavit dated 17th January, 2022 and 28th November, 2023, as her evidence in chief and produced documents as Dex No.3,4 and 5, and testified that the suit land belongs to her and the case should be dismissed with costs. 38. Upon cross-examination by counsel for the Plaintiff, DW3 testified that she stays in Nakuru town, and met Veronica once or twice at the Land Dispute Tribunal. She stated that she was not aware that the Tribunal found that the Land belonged to Veronicah. DW3 further testified that the Tribunal did not ask her whether she was an administrator of the estate of the Late John Gikonyo. She stated that the grant was confirmed on 31 st October, 2013, but the title is still in the name of John Gikonyo, as she wanted to share it with her children. 39. DW3 stated that it is not true that she had not transferred the land because she acquired it fraudulently. She also stated that she does not know about Nakuru Mutukanio Farmers Company Limited and further that her husband 11

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did not tell her how he got the land. She stated that she got the title from the safe, but did not have any other documents apart from the title deed. DW1 also confirmed that she does not know her neighbours as she lives in Nakuru town. She also stated that the napier grass was planted 10 years ago. DW3 stated that Veronica has been on the land but with interruptions, and that she had been farming the land and not residing on it. PLAINTIFF’S SUBMISSION 40. Counsel for the Plaintiff filed submissions dated 2nd April, 2026, and relied on the cases of Kamataka Board of Wakf v Government of India & Others [2004] 10 SCC 779, Tabitha Waitherero Kimani v Joshua Ng'ang'a [2017] eKLR, Mbui v Maranya (1993) e KLR, and Amos Weru Murigu v. Marata Wangari Kambi and Another (H.C.C.C. No. 33 of 2002 (O.S) and submitted that such possession must be peaceful, open, and continuous and to the exclusion of the title owner. 41. Counsel submitted that the evidence presented by the Plaintiff shows that she entered the suit land in 1983 before the title deed was issued to the Defendant in 1986.Counsel submitted that the Plaintiff produced documents that proved the Plaintiff’s occupation of the suit land in 1983 following a transaction with Mutukanio Farmers Co. Ltd. 42. Mr. Waiganjo further submitted that the plaintiff remained on the suit land throughout up to the date of hearing in open, exclusive, and uninterrupted possession, and the defendant took no action to interrupt the occupation, 12

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despite knowledge of her presence. Counsel therefore urged the court to find that the Plaintiff had proved the case on a balance of probabilities and to allow the originating summons with costs. DEFENDANT’S SUBMISSIONS 43. Counsel for the Defendant filed submissions dated 14th May, 2026, and identified the following issues for determination: a) Whether the plaintiff's claim is conceptually incompatible with adverse possession because it attacks the validity of the registered proprietor's title? b) Whether late John N. Gikonyo held a valid and indefeasible title to Rare/Teret Block 1/138; whether the plaintiff proved actual, open, notorious, exclusive, hostile, continuous, and uninterrupted possession for 12 years? c) Whether the Plaintiff proved dispossession of the registered proprietor discontinuance of possession by the registered proprietor; whether the Plaintiff’s occupation, if any, was interrupted by disputes, administrative complaints, tribunal proceedings and admissions of competing ownership? d) Whether the Plaintiff proved certainty of the exact parcel occupied and the extent of occupation and whether the plaintiff is entitled to the orders sought. 44. Counsel submitted that the prayers sought by the Plaintiff cannot stand as the plaintiff does not seek to extinguish a valid title but is seeking the court 13

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to validate a rival ownership story by using adverse possession as a shortcut, and relied on the case of Nafwa v. Barasa (Environment and Land Case 56 of 2017) (2016) KEELC 1178(KLR) (26 February, 2026) (Judgment), Haro Yonda Juate v Sadaka Dzego Mbauro & Another [2014] eKLR and Rono & Another v Nyambane & 6 Others (2026) KEELC 525 (KLR). 45. Responding to paragraphs 4 to 7, counsel submitted that the same are selfdefeating, as presenting Veronica not as an adverse possessor, but as an original owner or shareholder/allottee who entered under a claim of entitlement, which is not hostile to the registered proprietor until a clear point of repudiation is proved, and time begins to run against the true owner. Further, the Plaintiff's reliance on Provincial Administration complaints defeats the claim because a complaint to administration claiming ownership is an assertion that the claimant wants official recognition of ownership, not evidence of quiet, hostile, uninterrupted possession, but rather evidence of a dispute where contested occupation is not peaceful possession for adverse possession. 46. According to counsel, the Plaintiff’s own case is not that Veronica dispossessed John N. Gikonyo, but that John N. Gikonyo allegedly took Veronica's land, representing a completely different cause of action rather than adverse possession. Further, the documents produced did not clearly establish the connection between Plot 138 in the company records and Rare/Teret Block 1/138, or that the property belonged to Veronica. 14

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47. Counsel relied on the cases of Githu v. Ndeete [1984] KLR 776 and Wambugu v. Njuguna [1983] KLR 172, and submitted that the plaintiff's conclusion is unsupported by the evidence as the period of occupation was contradictory. 48. Counsel further relied on Sections 7, 13,17 and 38 of the Limitation of Actions Act (Cap 22), and submitted that the statutory provisions presuppose a valid registered proprietor against whom time runs, not a mechanism for correcting fraudulent, mistaken, or illegal titles, meaning a limitation claim does not make a title impeachment claim. A claimant who says the registered proprietor never lawfully obtained title is not making a limitation claim, but a title impeachment claim and relied on the cases of Kasuve v. Mwani Investments Ltd & 4 Others [2004] 1 KLR 184, Wilson Kazungu Katana & 101 Others v. Salim Abdalla Bakshwein & Another [2015] eKLR, Samuel Kihamba v. Mary Mbaisi [2015] eKLR, Maweu v. Liu Ranching and Farming Cooperative Society [1985] KLR 430 and Gabriel Mbui v Mukindia Maranya (1993) eKLR. Counsel urged the court to dismiss the Plaintiff’s claim with costs. ANALYSIS AND DETERMINATION 49. The main issue for determination is whether the Plaintiff acquired the suit land, Nakuru/Rare/Teret Block 1/138, by way of adverse possession. 15

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50. The doctrine of adverse possession is embodied in Section 7 of the Limitation of Actions Act, which is in these terms: “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 51. The Limitation of Actions Act makes further provision for adverse possession at Section 13 that: “(1)A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.(2)Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land.(3)For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12 (3), the land in reversion is taken to be adverse possession of the land.” 16

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52. Adverse possession was also defined in the case of f Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR, as follows: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 53. Similarly, in the case of Bedan Maina Njoroge v Patrick Ngaruiya & another [2021] eKLR, the court held as follows: “33. The Limitation of Actions Act does not expressly define adverse possession. Nevertheless, case law is awash with what adverse possession entails and generally it is essentially a situation where a person takes possession of land, asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya 12 years. See Court of Appeal decision in Mtana Lewa –v Kahindi Ngala Mwangandi (2005) eKLR. It is also a well settled principle that a party claiming Adverse Possession ought to prove that this Possession was “nec vi, nec clam, nec precario,” that is, peaceful, open and continuous. The Possession should not have been through force, no in secrecy and 17

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without the authority or permission of the owner. These doctrines are internationally accepted and were specifically reiterated by the South Africa Supreme Court in the case of Z F Stoffberg NO & others v City of Cape Town (1325/2017) [2019] ZASCA.” 54. The Plaintiff’s case is that her late mother, Veronica Wangechi Theuri, entered the suit property in 1983 after acquiring an interest through Nakuru Mutukanio Farmers Co. Ltd and remained in occupation and use of the property. The Defendant’s case is that the property was allocated to the late John N. Gikonyo, who was registered as proprietor on 14th April, 1986, and that Veronica entered the property without consent of the registered owner. 55. For a party to succeed in a claim of adverse possession, he or she must fulfill certain ingredients as was held in the Court of Appeal case of Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR, where it was stated as follows: “At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and section 38 of the Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land. Therefore the critical period for the determination whether possession was adverse is 12 years and the burden is on the person claiming to be entitled to the land by adverse possession to prove, not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land, that the adverse possessor has done acts on the land which are 18

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inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it. See Littledale v Liverpool College (1900)1 Ch.19, 21.” 56. The evidence on record shows that Veronica and her family were in possession of the suit land and used it for cultivation for a period in excess of 12 years, therefore their occupation was inconsistent with the owner’s enjoyment of the suit land. This was confirmed by PW2, 3 and 4 who were neighbors. The Defendant and the son were not able to prove that they were in occupation or use of the land. They were also not sure, when they last visited the suit land as they admitted that they resided in Nakuru town. They also confirmed that they were not aware of any neighbours to the suit land, which shows that they were neither in occupation nor in use of the suit land, as they claimed. 57. It is further not disputed that Veronica was in occupation of the suit land as confirmed by the Defendant that the they realized that she was in occupation in 2005. Why did the Defendant not take action if they thought Veronica was a trespasser on their land? 58. The Defendant’s submission that the Plaintiff’s claim for adverse possession cannot stand while at the same time, impeaches the Defendant’s title. It is not true that the Plaintiff alleged the Defendant acquired the title through fraudulent means Her claim was that she has been in continuous, uninterrupted possession/occupation since 1983. 19

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59. In the case of Joseph Gachumi Kiritu vs Lawrence Munyambu Kabura; civil Appeal no.20 of 1993 quoted in Presbyterian Church of East Africa (Uthiru Church) & another vs Kihoro & 3 Others (Civil Appeal 303 of 2018[2022] KECA 49 (KLR) (Civ) (4 February 2022) Judgement the Court of Appeal held that: “time which has begun to run under the Act is stopped either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land…” 60. In this case, the Plaintiff established prolonged occupation and use of property by Veronica and her family, and there is no evidence that the Defendant tried to assert her right to the property by filing legal proceedings to stop the time from running 61. The upshot is that the Plaintiff has proved that he has acquired the suit land by way of adverse possession, hence is entitled to be registered as proprietor of Rare/Teret Block 1/138 by virtue of the doctrine of adverse possession. I therefore make the following specific orders: a) A declaration is hereby issued that the Plaintiff is entitled to be registered forthwith as owner of Rare /Teret Block 1/138 which the Plaintiff has been in adverse possession of for more than twelve (12) years immediately preceding the presentation of this suit on 20

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which she has lived openly and continuously as of right and in adverse possession and without any interruptions from the Defendant or his predecessors or agents or servants in the above title and that the Defendant's title Rare/Teret Block 1/138 has been extinguished in favour of the Plaintiff under section 37 and 38 of the Limitation of Actions Act. b) That the Defendant do transfer Rare / Teret Block 1/138 to the Plaintiff within 30 days and in default the Deputy Registrar is hereby authorized to sign all documents to effect transfer of Rare / Teret Block 1/138. c) Costs of the suit to be paid by the Defendant. DATED, SIGNED AND DELIVERED AT NAKURU THIS 6TH DAY OF OCTOBER 2026. M. A. ODENY JUDGE 21

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