Introduction
The Plaintiff commenced this suit vide Originating Summons dated 10th July, 2023 against the Defendant seeking the following orders:
1. WHETHER the Plaintiff has been in open, continuous and uninterrupted occupation of land parcel known as PLOT NO. 604 TEMIYOTTA SCHEME measuring 1.5 Acres.
2. WHETHER the occupation has been without the consent of the Defendant.
3. WHETHER the Defendant’s title has been extinguished by adverse possession.
4. WHETHER the land should be transferred to the Plaintiff.
5. WHETHER the Plaintiff is entitled to be registered as the proprietor of the land parcel known as PLOT NO. 604 TEMIYOTTA SCHEME in place of the Defendant.
The Defendant in response filed her Replying Affidavit sworn on 19th October, 2023.
The matter proceeded by viva voce evidence where the Originating summons on record was deemed as the plaint, the replying affidavit as the defence while the supporting affidavit and the replying affidavit as statements. The annexures therein were deemed as list of documents.
Plaintiff’s case
Janet Mukhuhi testified as PW1. She testified that Wanjiku Waititu was her mother. She also testified that she had a grant of administration. She produced her supporting affidavit dated 10th July, 2023 which was adopted as her evidence in chief.
It was her testimony that her mother bought the suit land but the person who sold refused to transfer. She testified that the court made an order that the land belonged to Plaintiff. She produced the judgment as PEX 2. She also produced a decree of 29th April, 1993 as PEX 3. She testified that during post-election violence they were all chased away. She added that her mother died in 2018. She testified that the Defendant declined to sign the transfer. She added that she went to court for a grant ad litem PEX 4.
She testified that she went to an advocate known as Mburu Maina PEX 5. She added that she did not receive any reply. She testified that they needed a response PEX 6. She also testified that the Defendant gave her a hard time while staying on the land. She sought for an order of adverse possession.
Upon cross examination by Kibet for the Defendant, PW1 stated that Case No.341 was between Wanjiku Waititu (deceased) and the Defendant where it found that the deceased had not paid all the money. She stated that the court found that the land belonged to their mother. She further stated that the Defendant refused to do a transfer.
She stated that they are praying that their mother be registered as the owner since the court found that the land belonged to her. She added that they had not enforced the decree since they were busy. She further stated that the Molo case found that Julius Ngetich was an employee. She also stated that she had given a letter to the Defendant to stop any interference with the suit land. She confirmed that Settlement never gave her evidence of ownership.
She further confirmed that the land was still in the Defendant’s name. She stated that her employees were on the land. She admitted that she did not have evidence to confirm the same.
Upon re-examination, PW1 stated that the letter dated 7th May, 2021 was from Mwariki Gitahi who wanted her to vacate. She stated that paragraph 3 of the letter confirmed that she was in possession. She stated that her mother was on the land in 1992. She added that her house got burnt while she was in the compound. She stated that her mother never left the land. That marked the close of the Plaintiff’s case.
Defendant’s case
Wanjiru Wa Kiremba testified as DW1. She testified that she occupied the land but they did not have a title deed. It was her testimony that Wanjiku Waititu (deceased) had leased the land but never bought it. She testified that Wanjiku Waititu used to cultivate on the land until she died.
Upon cross examination, DW1 confirmed that she was the owner of the land. She further confirmed that it measured 5 acres. She stated that Wanjiku Waititu (deceased) came by virtue of a lease. She confirmed that the documents were burnt during clashes. She further confirmed that Wanjiku Waititu paid her Kshs.10,000/= for one year. She admitted that she could not recall the year. She added that it took long to evict the Plaintiff from the suit land since the Plaintiff was not staying in the land. She confirmed that there was a house on the land which she had been given by the government. She further stated that the government gave her a fundi and the materials which she used to build the house. She stated that the fundi died during clashes. She also stated that the government gave the materials after clashes. She stated that the fundi died of illness after having been beaten during clashes. She stated that they had leased the land to the Plaintiff. She admitted that she could not recall the date of lease.
She further stated that her children stayed in her land in Elementaita which she had been given the land by the church. DW1 stated that in 1992 during the clashes, she was given materials by the church and she built. She confirmed that she had the title. She stated that when they were given the land in Elementaita to build, they were given the materials in 2007. That marked the close of the Defendant’s case.
Submissions
Counsel for the Defendant filed his submissions dated 15th May, 2025 where he identified three issues for determination. The first issue was whether the Defendant’s suit meets the threshold of Section 38 of Limitation of Actions Act, Chapter 22 Laws of Kenya, and Order 37 rule 7 of the Civil Procedure Rules, 2010. He submits that the Plaintiff has filed the suit herein, seeking to be declared the owner, by virtue of Adverse Possession, of 1.5 Acres, contained in PLOT NO. 604, TEMIYOTTA SCHEME. He further submits that the land has no title deed, and that the Plaintiff has not annexed to the Affidavit in support of the Originating Summons, a Certified Extract of Title Deed, of the subject land, which is a mandatory requirement. He submits that the Originating Summons filed, violates the provisions of Section 38 of the Limitation of Actions Act, as the Plaintiff failed to annex a title deed to show that the Defendant is the proprietor of the suit parcel and that she wants to acquire it by way of adverse possession. He also submits that the Originating Summons as filed, is incompetent as the Plaintiff cannot purport to acquire land through adverse possession, where the land has no title deed. He relied on Section 38 (1) and (4) of Limitation of Actions Act Chapter 22 Laws of Kenya and Order 37 rule 7 of the Civil Procedure Rules, 2010.
He submits that it is a requirement that the originating summons be supported by an affidavit to which a certified extract of title to the land in question is annexed, is a mandatory one. He relied on the cases of Josiah Njoroge Njuguna V Ingobor Farm Co. (Registered Trustees) & 3 others [2018] eKLR and Samuel Kipngeno Koech V Agnes Wambui Gitonga [2016] eKLR.
The second issue was whether the Plaintiff has proven the elements of adverse possession. He submits that without the title deed, and extract to title, the suit herein is dead, and there is no need to proceed with this second limb. He however submits that the Plaintiff has not demonstrated that she is in now in occupation of the land, and or has at any given time occupied the subject portion of the land for a period of more than 12 years. The Defendant testified in Court that she is now in possession of the land, and it was incumbent upon the Plaintiff to demonstrate strictly her allegations as demanded by the evidence Act, which she has not. He relied on the Court of Appeal case of Mtana Lewa V Kahindi Ngala Mwagandi [2015] eKLR.
On the final issue of costs, he relied on section 27 (1) of the Civil Procedure Act and submits that the Plaintiff filed an incompetent claim which the court should dismiss and award Costs to the Defendant.
Analysis and Determination
I have considered the pleadings and the evidence on record and I am of the view that the following issues need to be determined:
a) Whether occupation and possession by the Plaintiff over the suit property constituted adverse possession.
b) Who should bear the costs of the suit.
The doctrine of adverse possession is founded under Section 7, 13, 37 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Defendant was aware of such. Section 7 of the Act provides as follows:
“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. Section 13 “(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 of this Act 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…”
In Kasuve V Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove;
“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 without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”.
The core of the dispute revolves around the ownership and possession of Plot number 604 Temiyotta where the Plaintiff is seeking an order of adverse possession. She claims that her mother, Wanjiku Waititu (deceased) bought the land from the Defendant but the Defendant refused to transfer it. The Plaintiff relies on a previous court case (Case No. 341) between Wanjiku Waititu (deceased) and the Defendant where the court vide its judgment (PEX 2) and a decree dated 29th April, 1993 (PEX 3) found that the land belonged to her mother and had determined the ownership. It was her case that her mother has always been in possession of the suit property.
The Defendant on the other hand contends that she is the owner of the suit land and that she was currently in occupation. She admitted that she did not have a title deed for the land. The Defendant denied any sale to the Plaintiff but contends that the Plaintiff had leased the land for one year at Kshs. 10,000. She admitted that the lease documents were burnt during the clashes.
Order 37 Rule 7 of the Civil Procedure Rules provides as follows:
“1. An application under Section 38 of the Limitation of Actions Act shall be made by Originating Summons.
2.The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.”
The above provision makes it mandatory that the extract of the register, or green card, be annexed to the Originating Summons and for a good reason because the same shows the history of the land in question and for purposes of computing the accumulated time for a claim of adverse possession.
In the case of Johana Kipkurui Rotich V Charles Kiagi [2019] KEELC 2013 (KLR) the court held that:
“It is clear from the above that one needs to annex the extract of the title. This provision of the law is not superfluous, for there are categories of land where time for Adverse Possession will not start running. Among these is land under the Government, which is covered under Section 41 of the Limitation of Actions Act.’’
Further, in the Court of Appeal case of Githu V Ndeete [1984] KLR 776, the court held as follows:
“Time for adverse possession begins to run when the title of the registered owner is challenged by open possession.”
It is not in dispute that the suit property does not have a title and further that the Plaintiff did not annex an extract of the title to the application. It is this court’s view that the Plaintiff relies on another court’s judgment which impliedly found that the Defendant was the owner of the suit property by virtue of an order of specific performance for sale of the suit land.
It is also not in dispute that the said judgment in High Court in Civil Suit 41 of 1991, the court expressly ordered the Defendant to execute all the necessary transfer documents so as to effect transfer of the suit parcel to the Plaintiff. It is also a fact admitted by the Plaintiff that they failed to execute the said decree as they were busy. It is my opinion that the said judgment does not negate the fact that a title has since not been procured despite the judgment of the said court to warrant adverse possession.
The above is fortified by the Court of Appeal decision in Mtana Lewa V Kahindi Ngala Mwagandi [2015] eKLR where the validity of adverse possession proceedings was discussed as follows;
“…a claim based on adverse possession is anchored on the fact that the suit property belongs to a registered owner, that evidence, in the form of a copy of the document of title must be exhibited. Failure to do this has been found in a long line of cases to be fatal because it is only through such exhibit that the existence and ownership of the suit property can be ascertained by the court. See Kyeyu v Omuto, Civil Appeal No. 8 of 1990. See also the present position in Johnson Kinyua v Simon Gitura Civil Appeal No.265 of 2005, where this Court found that the existence and proprietorship of land can be proved either by an extract copy of title or certificate of official search….”
In view of the above, this court finds that it is mandatory that there must be a registered title for a claim for adverse possession.
The upshot of the foregoing is that a claim for adverse possession shall only be sustained against the proprietor of the suit land and upon the claimant annexing the registerable document to the suit land. I therefore find that the Plaintiff has not annexed an extract of the title as required by the rules and thus her occupation does not constitute adverse possession.
Consequently, the Plaintiff has not proved her case to the required standard, and I proceed to dismiss the suit with costs to the Defendant. It is ordered.
The Plaintiff commenced this suit vide Originating Summons dated 10th July, 2023 against the Defendant seeking the following orders:
1. WHETHER the Plaintiff has been in open, continuous and uninterrupted occupation of land parcel known as PLOT NO. 604 TEMIYOTTA SCHEME measuring 1.5 Acres.
2. WHETHER the occupation has been without the consent of the Defendant.
3. WHETHER the Defendant’s title has been extinguished by adverse possession.
4. WHETHER the land should be transferred to the Plaintiff.
5. WHETHER the Plaintiff is entitled to be registered as the proprietor of the land parcel known as PLOT NO. 604 TEMIYOTTA SCHEME in place of the Defendant.
The Defendant in response filed her Replying Affidavit sworn on 19th October, 2023.
The matter proceeded by viva voce evidence where the Originating summons on record was deemed as the plaint, the replying affidavit as the defence while the supporting affidavit and the replying affidavit as statements. The annexures therein were deemed as list of documents.
Plaintiff’s case
Janet Mukhuhi testified as PW1. She testified that Wanjiku Waititu was her mother. She also testified that she had a grant of administration. She produced her supporting affidavit dated 10th July, 2023 which was adopted as her evidence in chief.
It was her testimony that her mother bought the suit land but the person who sold refused to transfer. She testified that the court made an order that the land belonged to Plaintiff. She produced the judgment as PEX 2. She also produced a decree of 29th April, 1993 as PEX 3. She testified that during post-election violence they were all chased away. She added that her mother died in 2018. She testified that the Defendant declined to sign the transfer. She added that she went to court for a grant ad litem PEX 4.
She testified that she went to an advocate known as Mburu Maina PEX 5. She added that she did not receive any reply. She testified that they needed a response PEX 6. She also testified that the Defendant gave her a hard time while staying on the land. She sought for an order of adverse possession.
Upon cross examination by Kibet for the Defendant, PW1 stated that Case No.341 was between Wanjiku Waititu (deceased) and the Defendant where it found that the deceased had not paid all the money. She stated that the court found that the land belonged to their mother. She further stated that the Defendant refused to do a transfer.
She stated that they are praying that their mother be registered as the owner since the court found that the land belonged to her. She added that they had not enforced the decree since they were busy. She further stated that the Molo case found that Julius Ngetich was an employee. She also stated that she had given a letter to the Defendant to stop any interference with the suit land. She confirmed that Settlement never gave her evidence of ownership.
She further confirmed that the land was still in the Defendant’s name. She stated that her employees were on the land. She admitted that she did not have evidence to confirm the same.
Upon re-examination, PW1 stated that the letter dated 7th May, 2021 was from Mwariki Gitahi who wanted her to vacate. She stated that paragraph 3 of the letter confirmed that she was in possession. She stated that her mother was on the land in 1992. She added that her house got burnt while she was in the compound. She stated that her mother never left the land. That marked the close of the Plaintiff’s case.
Defendant’s case
Wanjiru Wa Kiremba testified as DW1. She testified that she occupied the land but they did not have a title deed. It was her testimony that Wanjiku Waititu (deceased) had leased the land but never bought it. She testified that Wanjiku Waititu used to cultivate on the land until she died.
Upon cross examination, DW1 confirmed that she was the owner of the land. She further confirmed that it measured 5 acres. She stated that Wanjiku Waititu (deceased) came by virtue of a lease. She confirmed that the documents were burnt during clashes. She further confirmed that Wanjiku Waititu paid her Kshs.10,000/= for one year. She admitted that she could not recall the year. She added that it took long to evict the Plaintiff from the suit land since the Plaintiff was not staying in the land. She confirmed that there was a house on the land which she had been given by the government. She further stated that the government gave her a fundi and the materials which she used to build the house. She stated that the fundi died during clashes. She also stated that the government gave the materials after clashes. She stated that the fundi died of illness after having been beaten during clashes. She stated that they had leased the land to the Plaintiff. She admitted that she could not recall the date of lease.
She further stated that her children stayed in her land in Elementaita which she had been given the land by the church. DW1 stated that in 1992 during the clashes, she was given materials by the church and she built. She confirmed that she had the title. She stated that when they were given the land in Elementaita to build, they were given the materials in 2007. That marked the close of the Defendant’s case.
Submissions
Counsel for the Defendant filed his submissions dated 15th May, 2025 where he identified three issues for determination. The first issue was whether the Defendant’s suit meets the threshold of Section 38 of Limitation of Actions Act, Chapter 22 Laws of Kenya, and Order 37 rule 7 of the Civil Procedure Rules, 2010. He submits that the Plaintiff has filed the suit herein, seeking to be declared the owner, by virtue of Adverse Possession, of 1.5 Acres, contained in PLOT NO. 604, TEMIYOTTA SCHEME. He further submits that the land has no title deed, and that the Plaintiff has not annexed to the Affidavit in support of the Originating Summons, a Certified Extract of Title Deed, of the subject land, which is a mandatory requirement. He submits that the Originating Summons filed, violates the provisions of Section 38 of the Limitation of Actions Act, as the Plaintiff failed to annex a title deed to show that the Defendant is the proprietor of the suit parcel and that she wants to acquire it by way of adverse possession. He also submits that the Originating Summons as filed, is incompetent as the Plaintiff cannot purport to acquire land through adverse possession, where the land has no title deed. He relied on Section 38 (1) and (4) of Limitation of Actions Act Chapter 22 Laws of Kenya and Order 37 rule 7 of the Civil Procedure Rules, 2010.
He submits that it is a requirement that the originating summons be supported by an affidavit to which a certified extract of title to the land in question is annexed, is a mandatory one. He relied on the cases of Josiah Njoroge Njuguna V Ingobor Farm Co. (Registered Trustees) & 3 others [2018] eKLR and Samuel Kipngeno Koech V Agnes Wambui Gitonga [2016] eKLR.
The second issue was whether the Plaintiff has proven the elements of adverse possession. He submits that without the title deed, and extract to title, the suit herein is dead, and there is no need to proceed with this second limb. He however submits that the Plaintiff has not demonstrated that she is in now in occupation of the land, and or has at any given time occupied the subject portion of the land for a period of more than 12 years. The Defendant testified in Court that she is now in possession of the land, and it was incumbent upon the Plaintiff to demonstrate strictly her allegations as demanded by the evidence Act, which she has not. He relied on the Court of Appeal case of Mtana Lewa V Kahindi Ngala Mwagandi [2015] eKLR.
On the final issue of costs, he relied on section 27 (1) of the Civil Procedure Act and submits that the Plaintiff filed an incompetent claim which the court should dismiss and award Costs to the Defendant.
Analysis and Determination
I have considered the pleadings and the evidence on record and I am of the view that the following issues need to be determined:
a) Whether occupation and possession by the Plaintiff over the suit property constituted adverse possession.
b) Who should bear the costs of the suit.
The doctrine of adverse possession is founded under Section 7, 13, 37 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Defendant was aware of such. Section 7 of the Act provides as follows:
“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. Section 13 “(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 of this Act 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…”
In Kasuve V Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove;
“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 without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”.
The core of the dispute revolves around the ownership and possession of Plot number 604 Temiyotta where the Plaintiff is seeking an order of adverse possession. She claims that her mother, Wanjiku Waititu (deceased) bought the land from the Defendant but the Defendant refused to transfer it. The Plaintiff relies on a previous court case (Case No. 341) between Wanjiku Waititu (deceased) and the Defendant where the court vide its judgment (PEX 2) and a decree dated 29th April, 1993 (PEX 3) found that the land belonged to her mother and had determined the ownership. It was her case that her mother has always been in possession of the suit property.
The Defendant on the other hand contends that she is the owner of the suit land and that she was currently in occupation. She admitted that she did not have a title deed for the land. The Defendant denied any sale to the Plaintiff but contends that the Plaintiff had leased the land for one year at Kshs. 10,000. She admitted that the lease documents were burnt during the clashes.
Order 37 Rule 7 of the Civil Procedure Rules provides as follows:
“1. An application under Section 38 of the Limitation of Actions Act shall be made by Originating Summons.
2.The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.”
The above provision makes it mandatory that the extract of the register, or green card, be annexed to the Originating Summons and for a good reason because the same shows the history of the land in question and for purposes of computing the accumulated time for a claim of adverse possession.
In the case of Johana Kipkurui Rotich V Charles Kiagi [2019] KEELC 2013 (KLR) the court held that:
“It is clear from the above that one needs to annex the extract of the title. This provision of the law is not superfluous, for there are categories of land where time for Adverse Possession will not start running. Among these is land under the Government, which is covered under Section 41 of the Limitation of Actions Act.’’
Further, in the Court of Appeal case of Githu V Ndeete [1984] KLR 776, the court held as follows:
“Time for adverse possession begins to run when the title of the registered owner is challenged by open possession.”
It is not in dispute that the suit property does not have a title and further that the Plaintiff did not annex an extract of the title to the application. It is this court’s view that the Plaintiff relies on another court’s judgment which impliedly found that the Defendant was the owner of the suit property by virtue of an order of specific performance for sale of the suit land.
It is also not in dispute that the said judgment in High Court in Civil Suit 41 of 1991, the court expressly ordered the Defendant to execute all the necessary transfer documents so as to effect transfer of the suit parcel to the Plaintiff. It is also a fact admitted by the Plaintiff that they failed to execute the said decree as they were busy. It is my opinion that the said judgment does not negate the fact that a title has since not been procured despite the judgment of the said court to warrant adverse possession.
The above is fortified by the Court of Appeal decision in Mtana Lewa V Kahindi Ngala Mwagandi [2015] eKLR where the validity of adverse possession proceedings was discussed as follows;
“…a claim based on adverse possession is anchored on the fact that the suit property belongs to a registered owner, that evidence, in the form of a copy of the document of title must be exhibited. Failure to do this has been found in a long line of cases to be fatal because it is only through such exhibit that the existence and ownership of the suit property can be ascertained by the court. See Kyeyu v Omuto, Civil Appeal No. 8 of 1990. See also the present position in Johnson Kinyua v Simon Gitura Civil Appeal No.265 of 2005, where this Court found that the existence and proprietorship of land can be proved either by an extract copy of title or certificate of official search….”
In view of the above, this court finds that it is mandatory that there must be a registered title for a claim for adverse possession.
The upshot of the foregoing is that a claim for adverse possession shall only be sustained against the proprietor of the suit land and upon the claimant annexing the registerable document to the suit land. I therefore find that the Plaintiff has not annexed an extract of the title as required by the rules and thus her occupation does not constitute adverse possession.
Consequently, the Plaintiff has not proved her case to the required standard, and I proceed to dismiss the suit with costs to the Defendant. It is ordered.