REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELCOS NO. E012 OF 2025
JOHN GICHUHI MBUTHIUA................................PLAINTIFF
VERSUS
MARY WANGECHI NGURE..................................1ST DEFENDANT
JOHN KARIUKI NGURE.....................................2ND DEFENDANT
RULING:
The Applicant filed this suit by way of an Originating Summons dated 9/10/2025 for adverse possession urging the Court for orders of: -
1. A Declaration that the Plaintiff has acquired Title to 2 Acres comprised of parcel No. NYANDARUA/OL-JORO-OROK SALIENT/679 having been in open, peaceful and uninterrupted occupation of the said portion of land for over 12 years.
2. That the Land Registrar do register the Applicant as proprietor of 2 Acres out of land parcel No. NYANDARUA/OL-JORO-OROK SALIENT/679, in place of the Respondents.
3. An order directing the District Land Surveyor to visit the land, survey, demarcate 2 Acres out of NYANDARUA/OL-JORO-OROK SALIENT/679 being the portion the Applicant occupies.
4. Costs of the suit.
In the grounds in support of the Summons on the face of the Application and in the Affidavit in support of the same sworn on 9/10/2025, John Gichuhi Mbuthia, the Applicant, says that he purchased 2 Acres out of land parcel No. NYANDARUA/OL-JORO-OROK SALIENT/679 from one Simon Ngure Wambugu Respondent’s himself as the beneficial owner in 2001. But that he later realized that the land belonged to Joyce Gathigia Ngure after persistently urging Wambugu to transfer the land to him. Wambugu had bought the land but registered the same in his daughter’s (Joyce’s) name. He then took possession of the land in 2003 and started cultivating the land and has therefore been in open, exclusive, continuous and uninterrupted occupation of the land.
Mary Wangechi and John Kariuki Ngure are the children of Joyce Gathigia Ngure. The Applicant urges that he instituted Nyahururu PMCC No 297 of 2005 seeking to compel Simon Ngure to transfer the land to him but the former died before the matter was finalized. He also says that the Defendants filed Nyahururu CMELC No. 75 of 2022 seeking injunctive orders for trespass and nuisance, as it that is still pending hearing and determination.
The Respondents filed a Preliminary Objection to the Originating summons on 29/1/2026 on the grounds that: -
1. The Applicant urged that he entered the suit premises by way of a sale agreement in 2001 with Simon Ngure Wambugu who was not the registered owner of the suit land.
2. The claimed possession based on a land sale agreement is permissive in nature and cannot in law form the basis of adverse possession until the said permission is expressly terminated which termination has not been pleaded or demonstrated.
3. The alleged occupation from 2003 is incapable of grounding a claim of adverse possession. The registered proprietor having been Deceased and there being no legal representative until 2014.
I asked the parties to file written submissions which I have considered before retiring to write this Ruling.
Striking out a suit is such a draconian step and should be resorted to in a very clear and obvious case. In this case, it is distinctly clear that the Applicant entered the suit premises by way of a sale agreement in 2001 with Simon Ngure Wambugu. The claimed possession based on a sale agreement is therefore permissive in nature which permission was never terminated to pave way for the start of computing time for adverse possession. Further, Nyahururu CMELC No. 75 of 2022 by the Defendants seeking injunctive orders for trespass and nuisance amounted to interruption of the quiet possession or occupation, if any. Accordingly, this Suit lacks in cause of action and is hereby struck out with costs.
Ruling read and delivered at Nyandarua this 20th Day of May 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson.
Appellants’ Counsel: Ms. Macharia
Respondent’s Counsel: Mr. Ojare
| 2 |