1. The Applicant filed originating summons dated 20/06/2024 arguing that the rights of the Respondent over 2.5acres of land parcel no. Kimilili/Kimilili/534(hereinafter referred to as “the suit land”) have been extinguished by virtue of adverse possession since he has been in open, quiet, continues and adverse occupation thereof for a period over 45 years. He argued that title of the said 2.5acres in favour of the Respondent ought to be cancelled and registered in her name and r declared to be held in trust by the Respondent in her favour.
2. The summons are supported by the affidavit of the Applicant of an even date. It was averred that the suit land is registered in the name of Thomas Msame Nyukuri-Dcd. That in the year 1964 one Joseph Wafula Wafunafu-dcd, the Applicants father in law purchased land measuring 2.5 acres forming part of the suit land from Thomas Msame Nyukuri and the full consideration was paid. That the said portion was demarcated with a boundary and the said one Joseph Wafula Wafunafu took possession immediately and put up residential houses where the Applicant resided with her late husband namely Benson Wanyonyi Wafula since the year 1979. That they have since lived in the land and that her deceased husband and two children have been buried therein.
3. In opposition to the summons, the Respondent filed a replying affidavit sworn on 12/09/2024 where the he averred that his late father Thomas Mwaseme Nyukuri permitted the said Joseph Wafula Wafunafu who was his employee to till a portion of the suit land around the year 1979 and beyond 1995 when the said Thomas Mwaseme Nyukuri died and pending the succession proceedings by the family. It was argued that the during his fathers “lufu” ceremony, the Applicants never raised any claim over the said estate. It was admitted that the said Joseph Wafula Wafunafu with their permission erected temporary structures over a portion of the suit land.
4. That the said Benson Wanyonyi Wafula was buried in the suit land following a consent recorded in a civil suit filed in Kimilili by the two families at which time the Applicant is said to have separated from the said Benson Wanyonyi Wafula and left the residence. That the estate of Thomas Mwaseme Nyukuri instituted eviction proceedings against the children of Joseph Wafula Wafunafu and succession proceedings for the estate of their father where an objection was filed and dismissed by the court which proceeded to confirm the grant in their favour.
Evidence and submissions.
5. The suit proceeded by way of viva voce evidence.
6. PW1 Catherine Nafula Wanyonyi adopted his witness statement dated 19/10/2024 as his evidence in chief. She also produced as documentary evidence a list of documents of an even date containing four(4) items as P-Exhibit 1-4(a),(b),(c),(d),(e), (f),(g). In cross examination, she confirmed that she did not produce a sale agreement or acknowledgement of the consideration to support her claim. It was her testimony that she was married to the family of Joseph Wafunafu in the year 1979. She testified that the family of Joseph Wafunafu did not make any claim during “lufu” meeting as none was held despite their being minutes to that effect.
7. PW2 Lewis Wanyonyi Wafula Wanyonyi, PW3 Joseph Wafunafu Wakhungu and PW4 Richard Musungi Wachilonga adopted their witness statement dated 19/10/2024 as their evidence in chief and proceeded to reiterate the evidence as stated by PW1.
8. DW1 Richard Kundu Nyikuli adopted his replying affidavit sworn on 12/09/2024 as his evidence in chief and produced as documentary evidence the annexures thereto as DExhibit 1-5. He testified that the family of Joseph Wafunafu occupied the suit land in the year 1979 with the permission of his father who consequently to his death 16 years later did not take any steps to remove them form the land. He testified that the family of Joseph Wafunafu is still in occupation of the suit land but the Plaintiff got married elsewhere and no longer resides therein.
9. Directions on submissions were taken. The Applicant filed submissions dated 18/10/2025 through the firm of Were & Co.Advocates while the defendant filed submissions through the firm of J.O.Makali & Company Advocates dated 02/12/2025. The court has considered the details of each submissions and the case laws relied on in totality.
Analysis and determination.
10. I have carefully read and considered the pleadings, the evidence adduced, submissions, authorities cited and the relevant provisions of law and find that the singular issue for determined in this suit is whether the Applicant has satisfied the criteria for acquisition of title under the doctrine of adverse possession.
11. It is settled law that the principle of adverse possession is well settled under the Limitation of Actions Act - Section 7 of the said Act places a bar and actions to recover land after 12 years from the date the right accrued. Further, Section 13 of the same Act provides that adverse possession is the exception to this limitation. Section 38(1) of the Limitation of Actions Act (Cap 22) allows a person who claims to have acquired land by adverse possession to move this Court for an order that he be registered as proprietor of the land in place of the registered owner.
12. In Kasuve -Vs- Mwaani Investments Ltd. & Others [2004] 1 KLR 184, the Court of Appeal held that: “In order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of twelve (12) years, either after dispossessing the owner or by discontinuation of possession by the owner on his own volition.” Also see Mtana Lewa -Vs- Kahindi Ngala Mwagandi [2015] eKLR, the Court of Appeal and Imani Ruchine & Another -Vs- Swift Rutherford & Co. Ltd [1980] KLR 10.
13. The burden of leading the Court to ascertaining this lies with the Applicant . As was stated by Justice Kuloba J, (as he then was,) in Nairobi Civ No. 283 of 1990 Gabriel Mbui v Mukindia Maranya [1993] eKLR, where the Court held:
“The adverse character of the possession must be established as a fact. It cannot be assumed as a matter of law from mere exclusive possession even if the mere possession has been for twelve or more years. In addition there must be facts showing a clear intention to hold adversely, and under a claim of right. De facto use, and de facto occupation must be shown”
14. The Applicant contends that she has been in occupation of 2.5 acres of the suit property for over 45 years, her occupation having commenced upon her father in law’s purchase of a portion of the suit land land in 1964 and subsequently continuing after his demise. The Respondent asserted that the Applicant’s occupation was by consent and, in any event, has not been peaceful or uninterrupted.
15. The Applicant has produced a copy of the green card for the suit property, indicating that Richard Kundu Nyukuri was registered as the proprietor on 15/08/2011 pursuant to succession proceedings in Bungoma HC P&A No. 126 of 2011. The Respondent, however, tendered a judgment delivered in that succession cause on 19/04/2024, which shows that the land was distributed equally among all beneficiaries of the estate of Thomas Mwasemwa Nyukuri. The judgment further reflects that an objection was filed by one Peter Wafula Wafunafu, who claimed a purchaser’s interest and asserted that Benson Wanyonyi Wafula the Applicant’s deceased husband resided on the property. The court considered the objection and ultimately declined it.
16. The Applicant asserts that she has been in continuous occupation of 2.5 acres of the suit property for a period exceeding 45 years. However, she has not furnished this Court with any cogent evidence capable of demonstrating the nature, extent, or duration of such occupation, more so, in light of the Respondents evidence that she no longer resides in the suit land. No photographs, site maps, sketches, or other visual material have been availed to illustrate the alleged occupation or the portion said to have been exclusively possessed.
17. The Respondent, on the other hand, maintained that the Applicant had in fact vacated the property prior to the death of her husband in 2012. This assertion was not effectively rebutted by the Applicant, nor did she present any material capable of establishing that she remained physically present on the land beyond that period. Where a claim for adverse possession is in issue, the claimant bears the responsibility to establish uninterrupted and exclusive occupation for the statutory period. Failure to show actual presence on the land undermines the core element of continuity that is indispensable to such a claim. In the absence of such foundational evidence, this Court is left with a bare assertion unsupported by demonstrable proof, which falls short of the evidentiary threshold required for a claim founded on adverse possession.
18. The Applicant further relied on the fact that her late husband and some of their children were buried on the suit land. While such circumstantial evidence may demonstrate a connection to the property, they do not, in law, amount to proof of adverse possession. Burials without more do not constitute acts of dispossession or discontinuance of possession on the part of the registered proprietor. They are not definitive evidence of actual, open, and exclusive occupation by the Applicant for the requisite statutory period, nor do they establish the necessary animus possidendi.
19. Moreover, the evidence adduced indicates that the Applicant’s alleged occupation originated from an arrangement involving her father-in-law, whom the Respondent asserts without any documentary rebuttal from the Applicant was merely an employee of the Respondent’s deceased father and was present on the land with the permission of the registered owner. If the Applicant’s entry onto the property arose from such permission or familial invitation, then her occupation was permissive rather than hostile. It is trite law that possession that begins with consent cannot crystallise into adverse possession unless the claimant demonstrates a clear, unequivocal, and communicated change in the nature of occupation, coupled with an intention to dispossess the true owner. The Applicant has not provided evidence of any overt acts, assertions of right, or conduct amounting to a repudiation of the owner’s title. In the absence of such proof, the element of hostility an essential ingredient of adverse possession is not established.
20. In light of the foregoing, the Court finds that the Applicant has not satisfied the mandatory elements of adverse possession. She has not shown exclusive, open, peaceful, and uninterrupted occupation for the statutory period, nor has she demonstrated an intention to dispossess the true owner.
21. In the end, the Applicant has not proved the essential elements of adverse possession to the required standard. The Originating Summons dated 20/06/2024 is hereby dismissed. The Respondent shall have the costs of the suit.
22. It is so ordered.
DATED SIGNED DELIVERED Virtually at EMBU this 29th day of January, 2026.
……………………………..
HON.E.C CHERONO
ELC JUDGE
In the presence of;
1.Mr. Were for the Applicant.
2. M/S Masengeli for the Respondent.
3.M/S Diana C/A.
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