The Applicant commenced these proceedings by way of an Originating Summons dated 19th March 2024 brought under Sections 7, 13, 17 and 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya seeking, inter alia, declarations that he has acquired by adverse possession a portion measuring 1.4 acres comprised in land parcel No. BOKOLI/CHWELE/333; that the Respondent's title over the said portion has been extinguished by operation of law; that the Respondent be compelled to transfer the said portion to him and, in default, the Deputy Registrar of this Court be authorized to execute all the necessary transfer documents. He also sought a permanent injunction restraining the Respondent from interfering with his alleged occupation and possession of the suit property together with costs of the suit.
The Originating Summons is supported by the Applicant's affidavit wherein he depones that his late father and thereafter his family have openly, peacefully, continuously and exclusively occupied and utilized the disputed 1.4 acres since 1968 without interruption from the Respondent. He contends that the Respondent's title to the said portion was extinguished upon expiry of the statutory period of twelve years and that the Respondent now holds the same in trust for him.
The Respondent opposed the suit through a Replying Affidavit sworn on 5th June 2024 denying that the Applicant has ever been in adverse possession of the suit property. He maintained that the Applicant's family purchased the neighbouring parcel No. BOKOLI/CHWELE/330 in 1968 and only encroached onto parcel No. BOKOLI/CHWELE/333 in recent years, giving rise to a boundary dispute. He therefore contended that the Applicant had failed to satisfy the legal requirements for acquisition of title by adverse possession.
The matter proceeded by way of viva voce evidence. The Applicant testified as PW1 and adopted his supporting affidavit as his evidence in chief. He produced a Grant of Letters of Administration ad litem, a copy of his identity card, an official search in respect of parcel No. BOKOLI/CHWELE/333 and correspondence from the County Surveyor. He testified that he had occupied the disputed portion for over twelve years uninterrupted. However, during cross-examination, he conceded that neither he nor his family resides on the disputed portion. He admitted that there are no permanent structures erected thereon and that the only activities undertaken are cultivation and fencing. He also denied the existence of a boundary dispute notwithstanding the documentary evidence suggesting otherwise.
PW2, Joyce Khakasa Lukorito, testified that she is the Applicant's mother. She stated that she knew both parties as neighbours and maintained that the Applicant's family had cultivated the disputed land for many years. Nevertheless, during cross-examination she admitted that neither she nor the Applicant occupied the disputed portion, that there was no fence separating the alleged 1.4 acres from the Respondent's land and that their family principally utilized their own parcel measuring approximately eight acres.
PW3, Kimunai Matifari, testified that he had known both families for several decades and that the Applicant's family had cultivated the disputed portion since 1968. However, under cross-examination he equally admitted that there was no fence or physical feature demarcating the alleged 1.4 acres and confirmed the existence of a boundary dispute between the parties.
The Respondent's case was presented through DW1, Martin Wafula Butali, a son of the deceased Respondent. He testified that parcel No. BOKOLI/CHWELE/333 was first registered in his father's name in 1964 while the Applicant's father purchased the neighbouring parcel No. BOKOLI/CHWELE/330 from the Respondent's uncle in 1968. According to him, the two parcels had distinct boundaries which remained respected until around 2023 when the Respondent sought to subdivide his land among his children and discovered that the Applicant's family had encroached onto a portion thereof. He produced documentary evidence in support of the defence and prayed for dismissal of the suit.
DW2, Augustine Barasa Wangila, the Chairman of Bhamumbocha Clan, testified that he became aware of the dispute in 2024 when the Respondent reported that the Applicant had encroached onto parcel No. BOKOLI/CHWELE/333. He confirmed that he attempted to convene a meeting to resolve what he understood to be a boundary dispute.
DW3, Maurice Makokha Biketi, similarly testified that the Respondent complained to him in 2023 regarding a boundary dispute between the adjoining parcels. He confirmed that upon visiting the land he observed no visible boundary marks separating the two parcels.
Both parties thereafter filed written submissions which I have carefully considered together with the pleadings, oral evidence and authorities cited.
The sole issue for determination is whether the Applicant has proved on a balance of probabilities that he has acquired title to the disputed 1.4 acres by adverse possession.
The applicable law is found in Sections 7, 13, 17 and 38 of the Limitation of Actions Act. The principles governing claims for adverse possession have been settled in numerous decisions of the superior courts. In Kasuve v Mwaani Investments Ltd & 4 Others [2004] 1 KLR 184, the Court of Appeal held that a claimant must demonstrate exclusive, open, continuous and uninterrupted possession of land for a period of at least twelve years in a manner inconsistent with the title of the registered proprietor. Similarly, in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, the Court observed that adverse possession contemplates possession that is neither by force, secrecy nor permission but one which effectively dispossesses the true owner.
The burden of proving those ingredients rests upon the Applicant pursuant to Sections 107, 108 and 109 of the Evidence Act. As stated by the Court of Appeal in Karugi & Another v Kabiya & 3 Others [1987] KLR 347, the legal burden never shifts from the party who substantially asserts the affirmative of an issue.
Having evaluated the evidence on record, I am unable to find that the Applicant discharged that burden.
First, the Applicant's own evidence falls short of establishing actual and exclusive possession of the disputed portion. He candidly admitted that he does not reside on the land and has never erected any permanent structures thereon. His evidence was that the land has merely been cultivated from time to time. While cultivation may constitute evidence of possession in appropriate circumstances, it must nevertheless demonstrate exclusive occupation inconsistent with the rights of the registered owner.
Secondly, the Applicant's witnesses materially contradicted his case. PW2 admitted that neither she nor the Applicant occupied the disputed portion and confirmed that there was no fence separating the alleged 1.4 acres from the Respondent's land. PW3 equally conceded that there were no physical features identifying the claimed portion and further acknowledged the existence of a boundary dispute. Those admissions considerably weaken the assertion that the Applicant has enjoyed exclusive and uninterrupted possession of an identifiable portion of land for over twelve years.
Thirdly, the evidence on record points more towards a boundary dispute than adverse possession. Both DW2 and DW3 confirmed receiving complaints regarding the common boundary between parcels Nos. BOKOLI/CHWELE/330 and 333. Even the Applicant's witnesses acknowledged the existence of that dispute. Where the precise boundary separating adjoining parcels is uncertain, a claimant cannot successfully maintain a claim for adverse possession over an unidentified portion. Such disputes are appropriately resolved through the statutory procedure provided under Sections 18 and 19 of the Land Registration Act before questions of title may arise.
Moreover, although the Applicant asserted that the disputed portion measures 1.4 acres, he did not produce any survey report, mutation form, registry index map or expert evidence identifying with precision the portion allegedly occupied. The correspondence from the County Surveyor relied upon by the Applicant does not establish adverse possession but instead demonstrates the existence of a boundary dispute requiring resolution.
The Court of Appeal in Mbira v Gachuhi [2002] 1 E.A. 137 emphasized that a claimant must show that the registered proprietor has been dispossessed or has discontinued possession while the claimant openly assumes exclusive occupation. Likewise, in Mombasa Teachers Co-operative Savings & Credit Society Ltd v Robert Muthambi Katana & 15 Others [2018] eKLR, the Court reiterated that mere user of land does not suffice unless the claimant demonstrates open, exclusive and uninterrupted possession adverse to the interests of the registered proprietor.
Upon considering the entire evidence, I am not persuaded that the Applicant has established exclusive, continuous and uninterrupted possession of the disputed 1.4 acres for the statutory period. The evidence instead demonstrates neighbouring proprietors whose common boundary has become contentious. Such circumstances do not satisfy the strict legal threshold required to extinguish the title of a registered proprietor through adverse possession.
Accordingly, I find that the Applicant has failed to prove his claim on a balance of probabilities. The Originating Summons dated 19th March 2024 is therefore dismissed.
Consequently, judgment is hereby entered in favour of the Respondent in the following terms—
1. The Originating Summons dated 19th March 2024 is hereby dismissed.
2. The Applicant's claim for acquisition by adverse possession of 1.4 acres comprised in land parcel No. BOKOLI/CHWELE/333 is declined.
3. The prayers seeking declarations, transfer of the disputed portion and execution of transfer documents by the Deputy Registrar are hereby refused.
4. For avoidance of doubt, nothing in this judgment shall preclude the parties from pursuing the statutory process for determination of the common boundary under Sections 18 and 19 of the Land Registration Act should they deem it necessary.
5. The Applicant shall bear the costs of the suit pursuant to Section 27 of the Civil Procedure Act.
It is so ordered
DATED, READ, DELIVERED AND SIGNED VIRTUALLY AT EMBU THIS 16TH JULY, 2026.
………………………..
HON. E.C CHERONO
ELC JUDGE, EMBU
In the presence of;
1. Mr. Masiga for the Respondent-present
2. Mr. Wanjala for the Applicant-present
3. Ruth C/A-present
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