Background
The Applicant moved this Court by way of an Amended Originating Summons dated 11th April 2024 seeking, inter alia, a declaration that she has acquired by way of adverse possession a portion measuring approximately 3.25 hectares comprised in land parcels numbers KIMILILI/KIBINGEI/4467, 4468 and 4469, all being subdivisions of land parcel number KIMILILI/KIBINGEI/1381.
The claim is premised on the contention that the Applicant, together with her late husband, has been in open, continuous, peaceful and uninterrupted occupation of the suit land for a period exceeding forty (40) years, thereby extinguishing the Respondents’ title by operation of law.
The Respondents opposed the claim through replying affidavits, contending that they are the lawful registered proprietors of the respective parcels having purchased the same from one Richard Wanjala Walimbwa, and that the Applicant only encroached upon the land in recent years, prompting litigation before the subordinate court.
Upon compliance with pre-trial directions, the matter proceeded by way of viva voce evidence.
The Applicant’s Case
The Applicant testified that she entered and occupied the original land parcel in the early 1980s together with her late husband. She maintained that they extensively utilized the land for farming and other developments and that such occupation persisted for decades without interruption.
It was her case that the subsequent subdivision and transfer of the land to the Respondents was undertaken in bad faith and in disregard of her overriding interest.
However, upon cross-examination, the Applicant conceded that she vacated the suit land around the year 2010 and relocated to Kimilili town. She further admitted that she neither resides on the land nor has any permanent structures thereon, and that her late husband was buried elsewhere. She also acknowledged the existence of prior litigation between herself and the 1st Respondent.
Her witnesses largely reiterated the historical occupation of the land but confirmed that the Applicant is not in present occupation and has no developments thereon.
The Respondents’ Case
The 1st Respondent testified that he lawfully purchased land parcel number KIMILILI/KIBINGEI/4467 from the original proprietor and obtained title in 2012. He stated that he took possession and has since utilized the land, including planting trees and undertaking developments.
The 2nd Respondent, testifying on behalf of the estate of her late husband and her son, maintained that land parcel number KIMILILI/KIBINGEI/4468 was similarly acquired lawfully and that the Applicant only encroached upon the land in or about the year 2019.
The Respondents consistently maintained that the Applicant’s occupation, if any, was neither continuous nor peaceful, and that it was actively resisted through court proceedings.
Submissions
The Applicant submitted that she had established all the elements of adverse possession, emphasizing long occupation and use of the land.
The Respondents, on their part, challenged both the competency of the suit and the merits of the claim. They argued that the Originating Summons was defective for failure to comply with Order 37 Rule 7(2) of the Civil Procedure Rules and that the Applicant had not demonstrated the requisite elements of adverse possession.
Issues for Determination
Having considered the pleadings, evidence and submissions, the following issues arise for determination;—
1. Whether the suit is competent;
2. Whether the Applicant has established a claim for adverse possession;
3. Whether the suit against the 2nd and 3rd Respondents is properly instituted; and
4. Who should bear the costs of the suit.
Analysis and Determination.
The Respondents have challenged the Originating Summons on the ground that the Applicant failed to annex certified extracts of title as required under Order 37 Rule 7(2) of the Civil Procedure Rules.
This requirement is intended to enable the court ascertain the ownership and status of the suit land at the time of filing the suit. While the Applicant did not annex such documents at inception, the Respondents themselves produced title documents during the hearing, thereby placing before the Court sufficient material to determine ownership.
In the circumstances, and guided by the dictates of substantive justice, I am inclined to treat the omission as a procedural lapse not fatal to the suit.
However, I note a more fundamental defect. The Applicant asserts that she brings this claim on behalf of the estate of her late husband, yet the suit is not expressly instituted in her capacity as a legal representative. Such ambiguity goes to the root of the claim, particularly where rights of a deceased person are invoked.
The principles governing adverse possession are well settled. A claimant must demonstrate open, continuous, exclusive and uninterrupted possession of land for a period of not less than twelve years, adverse to the interests of the true owner.
The Applicant’s case falls short of this threshold.
Firstly, her own testimony confirms that she vacated the suit land in the year 2010. Such cessation of occupation interrupts the continuity required to sustain a claim for adverse possession.
Secondly, there is clear evidence that the Respondents are in possession of the respective parcels, having constructed houses and undertaken developments thereon. The Applicant herself acknowledged this fact.
Thirdly, the existence of litigation between the parties, particularly the suit filed in 2022, demonstrates that the Applicant’s occupation has been contested. It cannot therefore be described as peaceful or uninterrupted.
Fourthly, the evidence suggests that the Applicant’s initial occupation was with the permission of the original owner, who was her father-in-law. Such occupation cannot be adverse unless there is clear evidence of dispossession or discontinuance of possession by the true owner, coupled with hostile occupation by the claimant. No such evidence has been tendered.
Lastly, the Applicant admitted that she neither resides on the land nor has developments thereon, thereby negating the essential element of actual possession.
Taken cumulatively, the Applicant has failed to prove adverse possession on a balance of probabilities.
The 2nd and 3rd Respondents are sued in respect of the estate of a deceased person without evidence of a grant of representation.
It is trite that only a duly appointed legal representative can sue or be sued on behalf of a deceased’s estate. The suit against the estate is therefore incompetent.
Costs follow the event. The Applicant having failed in her claim, there is no reason to depart from this principle.
Disposition
In the result, I find that the Applicant has failed to establish her claim for adverse possession.
Accordingly, I make the following orders—
1. The Amended Originating Summons dated 11th April 2024 is hereby dismissed in its entirety;
2. The Applicant’s claim for adverse possession over land parcels numbers KIMILILI/KIBINGEI/4467, 4468 and 4469 is declined;
3. The suit against the 2nd and 3rd Respondents, in so far as it relates to the estate of the deceased, is incompetent; and
4. The Applicant shall bear the costs of the suit.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT EMBU THIS 24TH DAY OF MARCH, 2026.
……………………………….
HON. E. C. CHERONO
JUDGE
ENVIRONMENT AND LAND COURT
In the presence of;
1. Applicant/ Advocate – Absent
2. Respondent/ Advocate – Absent
3. Diana Kemboi – Court Assistant
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