A. Introduction
The Applicant, John Wafula Maruti, moved this Court by way of an Originating Summons dated 14th May 2024 brought pursuant to Sections 7, 17 and 38 of the Limitation of Actions Act (Kenya), seeking to be declared the owner of a portion measuring approximately 2.2 hectares comprised in land parcel N. MALAKISI/W. SASURI/429 on the basis of adverse possession.
The Applicant further sought orders that the Respondent’s title be cancelled and that the said portion be registered in his name. In the alternative, he prayed for a declaration that the Respondent holds the suit land in trust for him.
The Originating Summons is supported by the Applicant’s affidavit sworn on 14th May 2024 and a supplementary affidavit sworn on 4th June 2024. The Respondent opposed the claim through a Replying Affidavit sworn on 29th May 2024 and a Further Affidavit sworn on 9th February 2025.
By consent of the parties, the matter proceeded by way of viva voce evidence.
B. The Applicant’s Case
The Applicant testified that he has lived on the suit property for over 30 years. It was his testimony that the land originally belonged to his grandfather Wamukota Kiubuya Omumbo (deceased) who allowed his father, Maruti Wamukota, to occupy the land together with his family.
He stated that both his grandfather and father were buried on the suit property. According to the Applicant, he has continued to occupy and utilize the land openly, peacefully and exclusively since his childhood.
The Applicant further testified that he later discovered through an official search that the Respondent had been registered as the proprietor of the suit property following succession proceedings relating to the estate of the deceased Wamukota Kiubuya Omumbo. He maintained that the registration of the Respondent did not affect his occupation of the land. The Applicant called two witnesses.
PW2, Reuben Wekesa Wafula, his son, testified that the family had lived on the suit property for many years and only discovered during an official search that the Respondent had obtained title through succession proceedings.
PW3, John Benson Kapoloko, a neighbour of the Applicant, testified that he had known the Applicant for many years and confirmed that the Applicant had been in occupation of the land for a long time.
The Applicant therefore contended that his occupation had extinguished the Respondent’s title under the doctrine of adverse possession.
C. The Respondent’s Case
The Respondent, Nuni Kiboi Chemno, testified that he is the registered proprietor of the suit land. He stated that he acquired title following lawful succession proceedings relating to the estate of Wamukota Kiubuya Omumbo.
He testified that prior to purchasing the land he conducted due diligence and became aware that the Applicant was occupying the property. He stated that he requested the Applicant to vacate but he refused, prompting him to report the matter to the police where the Applicant was charged with the offence of forcible detainer.
DW2, Richard Wayoboya Wamuta, testified that the Applicant entered the land in 1992 with the permission of the deceased Wamukota Kiubuya Omumbo to assist him during illness. He stated that after the death of the deceased in the year 2000, the Applicant was requested to vacate the land but he declined.
DW3, Ben Ngeywo Chebus, a retired chief, testified that the Applicant had been asked by family members to vacate the land but refused.
DW4 and DW5, who are relatives of the deceased, also testified that the Applicant’s occupation of the land was initially permissive and that he remained on the property despite requests to leave.
D. Issues for Determination
Having considered the pleadings, evidence and submissions of the parties, the Court is of the view that the following issues arise for determination:
1. Whether this Court has jurisdiction in light of the concluded succession proceedings.
2. Whether the Applicant has established a claim for adverse possession.
3. Whether the Respondent holds the suit property in trust for the Applicant.
4. What orders should issue.
The Respondent argued that the dispute ought to have been raised in the succession cause through an application for revocation of grant under Section 76 of the Law of Succession Act (Kenya).
It is not disputed that the suit property formed part of the estate of the late Wamukota Kiubuya Omumbo and that succession proceedings were conducted culminating in the transmission of the property to the Respondent.
However, the present claim is grounded on adverse possession, a claim based on limitation of actions and not on inheritance.
The jurisdiction of this Court to determine claims relating to title to land including adverse possession flows from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (Kenya).
Kenyan courts have consistently held that a claim for adverse possession can be pursued before the Environment and Land Court even where the land previously formed part of a deceased person’s estate.
In Willy Kimutai Kitilit v Michael Kibet (2018) eKLR, the Court of Appeal affirmed that equitable doctrines including adverse possession may affect registered title.
Similarly, in Trouistik Union International v Mbeyu (1993) eKLR, the Court of Appeal observed that disputes relating to property rights may arise even after succession proceedings.
Accordingly, the existence of succession proceedings does not divest this Court of jurisdiction where a party asserts rights founded on adverse possession.
This Court therefore finds that it is properly seized of jurisdiction.
The law governing adverse possession is found under Sections 7, 13 and 38 of the Limitation of Actions Act (Kenya). For a claim of adverse possession to succeed, the claimant must prove that his possession of the land has been:
• open and notorious
• exclusive
• continuous
• without the consent of the owner
• for a period exceeding twelve years.
The principles governing adverse possession were succinctly set out in Wambugu v Njuguna (1983) KLR 172 and Kimani Ruchine v Swift Rutherford & Co. Ltd (1980) KLR, where the courts held that possession must be nec vi, nec clam, nec precario — that is, without force, secrecy or permission.
In the present case, the evidence of DW2, DW3, DW4 and DW5 was consistent that the Applicant entered the suit property with the permission of the deceased Wamukota Kiubuya Omumbo. Indeed, the Applicant himself testified that the land belonged to his grandfather and that his father had been allowed to occupy it.
Where occupation begins with the permission of the owner, it cannot found a claim for adverse possession unless such permission is clearly terminated and the occupation thereafter becomes hostile.
This principle was affirmed in Public Trustee v Wanduru (1984) KLR 314, where the Court held that permissive occupation cannot mature into adverse possession unless there is clear evidence of hostility.
Furthermore, the evidence before this Court demonstrates that the Applicant’s continued occupation was contested. The Respondent and members of the deceased’s family repeatedly asked him to vacate the land and even reported the matter to authorities.
Such circumstances negate the requirement that possession be peaceful and uncontested. The Court of Appeal in Githu v Ndeete (1984) KLR 776 held that time for adverse possession ceases to run when the owner asserts his rights or takes steps to recover possession. The evidence placed before the Court demonstrates that the Applicant’s occupation was consistently challenged.
In addition, the Applicant admitted that he was aware of the succession proceedings but did not challenge them through revocation of grant. In the Court’s view, the Applicant’s occupation of the suit property cannot be said to have been hostile to the title of the true owner. The Court therefore finds that the Applicant has failed to establish the essential elements of adverse possession.
The Applicant alternatively argued that the Respondent holds the land in trust. Customary trust is recognized under Section 28(b) of the Land Registration Act (Kenya) as an overriding interest.
The Supreme Court in Isack M’Inanga Kiebia v Isaaya Theuri M’Lintari & Another (2018) eKLR outlined the elements necessary to establish a customary trust.
However, in the present case, the Applicant neither pleaded nor proved the elements required to establish such a trust.
More importantly, the evidence demonstrates that the land was distributed through succession proceedings in which the Applicant did not participate or raise any objection. The claim for trust is therefore not established.
E. Disposition
In light of the foregoing analysis, the Court finds that the Applicant has failed to prove his claim for adverse possession or trust on a balance of probabilities.
Accordingly, the Court makes the following orders:
1. The Applicant’s Originating Summons dated 14th May 2024 is hereby dismissed.
2. It is hereby declared that the Respondent is the lawful registered proprietor of land parcel N. MALAKISI/W. SASURI/429.
3. The Applicant shall vacate the suit property within ninety (90) days, failing which the Respondent shall be at liberty to apply for eviction.
4. The Applicant shall bear the costs of the suit.
DATED, SIGNED AND DELIVERED VIRTUALLY AT EMBU THIS 13TH DAY OF MARCH, 2026.
…………………………………
E.C CHERONO
ELC JUDGE
In the presence of;
1. Mr. Were for the plaintiff - Present
2. Defendant/ Advocate - Absent
3. Court Assistant - Bett
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