Plaintiffs Case
Lily Too, Michael Keiyo, Victor Korir, Gabriel Keiyo (hereinafter referred to as the plaintiffs) have come to court against Abdi Ali (hereinafter referred to as the defendant) by way of originating summons praying for declaration that the plaintiffs have become entitled by adverse possession to all that piece of land known as L.R No: 13287/102 North Njoro Town (hereinafter "the suit property) measuring 4.047 hectares situated in Nakuru County for a period of 12 years.
They further pray for an order that the 1st plaintiff be registered as the proprietor and to hold in trust for her behalf and on behalf of the 2nd, 3rd and 4th plaintiffs) of the said piece of land known as L.R No: 13287/102 North Njoro Town situated in Nakuru County measuring 4,047 hectares and that the Deputy Registrar of the Honorable Court does execute all necessary documents to facilitate registration of the 1st plaintiff as the proprietor (in trust) of land parcel L.R No: 13287/102 North Njoro Town measuring 4.047 Situated in Nakuru County measuring 4.047 hectares. That costs of this application be provided for.
The factual background of the claim as stated in the affidavit of Lily Too, a trained teacher is that she is the widow of the late James Keiyo Kiptenai (deceased), who was a National Youth Service senior ranking officer attached to Nakuru whereas the 1st to 4th plaintiffs are her children. The 1st plaintiff’s husband died on 24th March, 2012 due to hypoglycemia diabetes mellitus and left her as the only surviving widow and the children. Upon the demise of her husband on 24th March, 2012 she took over the occupation of L.R No 13287/102 North Njoro Town measuring 4.047, her entry into the parcel was actual, visible, open and notorious in nature. She took possession of the said parcel and started developing it to the exclusion of the whole world undertaking agricultural activities since the date of purchase.
She has been in occupation of the suit land since 24th March, 2012 together with her children upon untimely demise of her husband on 24th March, 2012 and therefore claims that she acquired the whole parcel of land being L.R No: 13287/102 North Njoro Town measuring 4.047 situated in Nakuru County through an act of occupation to the exclusion of the whole world and as the only widow she took over the management of the said piece of land and did agricultural activities from 2012 to date.
Upon the demise of her late husband James Keiyo Kiptenai (deceased), the family continued to live in the suit property to date undertaking agricultural activities and that at no point in time has anyone encroached into the said suit property since 2012 when her husband passed on. The 1st plaintiff depones that as the widow to the late James Keiyo Kiptanui (Deceased), she is likely to be left out to the hands of strangers who might tamper with the land and disinherit her from the land which she calls home for more than12 years now.
She admits that the suit property is registered in the name of one Abdi Ali but she has been in occupation from 2012 to date without any interruption. That the family has always been in peaceful and open possession, occupation and use of the suit property to the exclusion of the defendant for a period of over 12 years. They have structures on the suit properly and have planted maize and trees, which have matured. She contends that the defendant has never attempted to assert his rights over the suit property since the year 2012 when he took possession. Even then from 2012, after the demise of her late husband she had been in possession for a period of 12 years
Defendants Case
The defendant filed a response vide an affidavit sworn on 7th November 2025 stating that he is the registered proprietor of all that parcel of land known as L.R No. 13287/102 North Njoro Town, measuring approximately 4.047 hectares.
He deposes that he was allocated the suit property by the Agricultural Development Corporation (ADC) in 1988, after which full titling was concluded in 1991, long before the plaintiffs’ alleged occupation. He was an employee of ADC between 1970 and 1993, and his allocation arose as part of an employee settlement programme, after which he took possession and has since retained ownership and control thereof and has consistently paid land rates and other outgoings relating to the suit property demonstrating continuous dominion and ownership. According to the defendant, the plaintiffs’ entire case is premised on falsehoods, contradictions, and deliberate misrepresentation of both facts and law. Their alleged possession neither meets the statutory nor factual threshold for adverse possession.
He contends that the plaintiffs’ allegation to have taken possession of the property upon the demise of one James Keiyo Kiptenai on 24th March 2012 implies that the alleged possession would only have begun in 2012, meaning the statutory 12-year period could not have lapsed by the time of filing in 2024. He depones that the alleged entry was not peaceful, open, or uninterrupted but was recent and forceful, amounting to nothing more than trespass.
He states that during a site visit ordered by this Honorable Court, it was confirmed that the property had no signs of long habitation or settled use, save for a recently constructed temporary structure, clearly erected to an attempt to manufacture evidence of occupation.
The existence of a disputed crop at the time of the site visit claimed both by the plaintiffs and another party further demolishes the allegation of exclusive possession. True adverse possession cannot exist where possession is shared, contested, or interrupted.
The defendant contends that plaintiffs’ participated in previous proceedings, namely ELC Case No. E30 of 2024 (Stanley Kariuki Karaya vs Abdi Ali & Others), wherein they filed pleadings asserting they were purchasers of the same property. They are thus approbating and reprobating alternately claiming to be purchasers and then adverse possessors as convenience dictates. This is a blatant abuse of the court process and exposes their deceitful scheme to grab the land.
The defendant states that he has never vacated the property and has at all material times remained in control and possession thereof, either personally or through the oversight of his long-time neighbor, Mrs. Zipporah Rotich, who has been residing adjacent to the property and, with his authority, has kept her own livestock on the land and assisted in tending and guarding the parcel for over twenty (20) years.
The defendant states that upon the recent forceful entry by the plaintiffs and other trespassers, he immediately reported the incident to the Police at Ngata Police Station, and the same was duly recorded and investigated under 0B NO. 09/19/3/2024 and therefore it is therefore false and misleading to allege that the plaintiffs’ have been in open, exclusive, or continuous possession. Their entry is recent, forceful, and illegal, amounting to trespass rather than adverse possession
The land has been targeted by serial land grabbers, including the plaintiffs and the said Mr. Karaya, whose claim was recently dismissed. The plaintiffs conduct is part of the same pattern of fraudulent encroachment. That in light of the foregoing, the plaintiffs claim for adverse possession is misconceived, dishonest, and fatally defective both in law and in fact.
The defendant prays that the Originating Summons be dismissed with costs, and that this Honorable Court be pleased to declare that Abdi Ali is the lawful a registered proprietor of all that parcel of land known as L.R No. 13287/102 North Njoro Town, measuring approximately 4.047 hectares and that the plaintiffs are trespassers upon the said parcel of land. He prays that the plaintiffs, their servants, agents, or any persons claiming under them be ordered to vacate the said parcel of land forthwith failing which they shall be evicted therefrom accordance with the law.
The defendant prays that the plaintiffs be condemned to pay mesne profits to the defendant for the entire period of unlawful occupation, the quantum whereof to be assessed by the Court and a permanent injunction be issued restraining the defendants, their agents, servants, or any other persons claiming through them from entering upon, cultivating, constructing on, selling, leasing, charging, or in any other manner interfering with the defendants quiet possession and ownership of LOR No. 13287/102 North Njoro Town. That the Officer Commanding Station (OCS), Ngata Police Station, Shall supervise and ensure compliance with the eviction and enforcement of these orders, and shall render such assistance as may be necessary to maintain law and order on the ground and that the plaintiffs do pay the costs of this suit to the defendant.
When the matter came up for hearing it was agreed that the parties do proceed with the matter by way of affidavits and written submissions and judgment was slated for 5th February 2026.
Rival Submissions
The plaintiff submits that he is entitled to the orders sought in the originating summons as the rightful owners of land parcel known as L.R No: 13287/102 located in North of Njoro Town situate in Nakuru County measuring 4.047 Hectares under adverse possession. The plaintiff relies on the case of' Gabriel Mbui — Versus - Mukindia Maran a 1993 eKLR which has defined adverse possession in the following terms:
“…..the non-permissive physical control over land coupled with the intention of doing so, by a stranger having actual occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of' the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owner's enjoyment of land for purposes for which the owner intended to use it.”
The plaintiffs invoke the provisions of Section 7, 37 and 38 of the Limitation of Actions Act. Section 7 of the Limitation of Actions Act specifically Provide thus:
"Section 7. Actions to recover land'
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. "
Act. "
The plaintiff urges the court to acquaint itself with the decision of Andafu v Akhulunya (Civil Appeal 70 of 2019) [20251 KECA 714 (KLR) (25 April 2025) (Judgment) where a three judge bench while citing the cases of Titus Mutulcu Kasuve vs. Mwaani Investments Limited & 4 others [20041 eKLR: Titus Rigoro Munvi vs. Peter Mburu Kimani, Civil Appeal No. 28 of2014: Wambugu vs. Niuguna. {19831 KLR 172) and Karuntimi Raiii vs. M'makinva (20131 elCLR highlighted key distilled principles for a claim of adverse possession. That adverse claims must be:
"a) Adverse to the interests of the owner -- meaning that the claimant is in possession as owner in contradistinction to holding in recognition of or subordination to the true owner or to a recognized superior claim of another;
b) Actual - as opposed to constructive possession where the test is the degree of the actual use and enjoyment of the parcel of land involved by the claimant or his agent, tenant or licensee;
c) (hen and notorious - meaning that the possession must be open and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner's rights are being invaded. Differently put, the possession must be manifest to the community;
d) Without force -meaning that the possession and occupation must have been achieved peaceably not through actual or threatened violence;
e) Exclusive - meaning that the possession must be of such exclusive character that it will operate as an ouster of the owner of the legal title. Differently put, the claimant must demonstrate that she wholly excluded the owner from possession for the required period;
f) Continuous and uninterrupted for the period of twelve years - meaning that the title owner did not re-enter the property under circumstances showing her intention to assert dominion against the adverse user for at least twelve years. "
The plaintiff submits that it is not disputed that the claimed parcel herein known as L.R No: 13287/102 is registered in the name of ABDI ALI (the Respondent) and a copy of the Certificate of Title has been annexed to the affidavit in support of this application marked as 66 LT-3" issued on 22nd February, 1991 to Abdi Ali. The Applicants filed this application in their individual capacities that they have been in open occupation of whole land parcel known as L.R No:13287/102, located in North of Njoro Town within Nakuru County measuring 4.047 Hectares, for a continuous uninterrupted period of over twelvc years as from 24th March, 2012 up to now with knowledge and exclusion of the Respondent, (the registered owner of the claimed land hereinabove). The plaintiffs submit that James Kipatnui Keiyo(deceased had paid his last installments and had occupied the land until his demise in 2012. He had paid all the purchase price and he ought to have been registered as the actual owner since there was no dispute between him and the Abdi Ali herein.
The claimed parcel being agricultural land, the plaintiff fenced the subject parcel and have tilled the said parcel since their entry in 2012. The fencing of the entire claimed parcel and growing of trees, maize and wheat to exclusion of the defendant amounts to openness/no secrecy and crops therein amounts to long term commitment to use of the claimed land.
The time for the purpose of this claim therefore starts running from 24/3/2012 to the time of filing of this claim on 13th May, 2024. The computation of time herein indicates the defendants have been in occupation of the claimed parcel for 12 years and 45 days. This therefore meets the statutory timelines as provided for in Section 7 of the Limitation of Actions Act. The plaintiffs invite the court to give effect to Section 38 (1) of the Limitation of Actions Act and do grant order that the plaintiffs be registered as the proprietors of land parcel L.R No: 13287/102 as they are legally entitled to the said parcel entirely. The plaintiffs are alive to the sentiments of J.Kuloba in Gabriel Mbui vs Mukindia Maranya (1993) eKLR, where the learned judge held on the aspect of permissive possession perspicaciously that:-
"(3) The occupation of' the land by the intruder who pleads adverse possession must be non- permissive use, i.e. without permission from the true owner of the land occupied. It has been held many times that acts done under licence or permitted by, or with love of, the owner do not amount to adverse possession and do not give the licensee or permitted entrant any title under the limitation statute, If one is in possession as a result of permission given to him by the owner, or if he is in possession of the land as a licensee from the owner, he is not in adverse possession. Permissive occupation is inconsistent with adverse possession. "
The plaintiffs were granted free entry by the one Abdi Ali the defendant in the year 2012 after the demise of her husband (James Kiptenai Keiyo) and the plaintiffs have not alleged any purchasers' interest of the claimed parcel from the defendant.
The true position since they inherited the suit land from their father can be best described by a dicta in Wambugu v Niuguna 119831 KLR 171 which laid down the following guiding principles as regards adverse possession;-
Where a claimant pleads the right to land under an agreement and in the alternative seeks an order based on subsequent adverse possession, the rule is the claimant's possession as deemed to have become adverse to that o/ the owner after the payment or the last installment or the purchase price. The claimant will succeed under adverse possession upon occupation of at least 12 years after such payment (Underlined for our emphasis)
Ultimately, the plaintiffs submit that they have clearly proven adverse interests of the claimed land, actual, open and exclusive possession of the claimed land for a continuous uninterrupted period of over twelve (12) years and thus their rights over the claimed parcel should be granted to them. They pray that the suit be allowed with costs.
The defendant submits that the plaintiffs’ case is contrived, legally untenable, factually incoherent, and amounts to an unrelenting attempt to dispossess a lawful proprietor through shifting narratives and forged documentation. Conversely, that the defendant is the original allottee, lawful registered owner, and one who has never abdicated control, upheld not merely by documentation but by the continuum of fact, conduct, and corroborated community knowledge.
The defendants argue that suit for adverse possession was filed prematurely before the lapse of 12 years. According to the plaintiff, adverse possession cannot be claimed against time; time must support the claimant, not betray them.
The defendant reported interference and trespass under 0B No. 09/19/3/2024, interrupting any alleged possession. Once interrupted, time stops running, thereby further invalidating the Applicants' claim. The defendant submits that the possession was neither exclusive nor peaceful. At the site visit conducted by this Honorable Court, what presented was not a picture of occupation but of recent intrusion, evidenced by temporary shanties erected hastily and a crop under competitive claim. This negates exclusivity. The defendant argues that adverse possession cannot be manufactured, it must emerge naturally from peaceful dominion over time and that a claimant cannot be both purchaser and trespasser
The defendant submits that the plaintiffs’ have filed two contradicting sale agreements (1993 & 1994) with discordant signatures and no proof of Consideration, consent, or registration. They cannot both allege a contractual entitlement to the land and adverse possession thereof.
The defendant submits further that he has never abandoned possession and relies on the affidavit of his neighbor Zipporah Rotich, who confirms in sworn testimony grazing livestock on the property with his authority for over 20 years, his dominion over the land has never dissipated. The defendant prays that the Originating Summons be dismissed with costs and that the Court declares the Respondent, Abdi Ali, the lawful and registered proprietor of L.R No. 13287/102 North Nj0f0 Town (4.047 Ha) and that the plaintiffs are trespassers. Orders immediate vacant possession of, in default, authorizes lawful eviction. Awards mesne profits for unlawful occupation (quantum to be assessed). Issues a permanent injunction against interference with the property. Directs the OCS Ngata Police Station to supervise enforcement. Awards costs to the defendant.
Analysis and Determination
The facts of this case are that the defendant is the registered owner of that parcel of land known as L.R NO 13287/102 North Njoro town measuring approximately 4.047 hectares. There is no dispute that he was allocated the suit property by the Agricultural Development Corporation (ADC) in 1988, after which full titling was concluded in 1991, long before the Applicants' alleged occupation. He was an employee of ADC between 1970 and 1993, and his allocation arose as part of an employee settlement program. The defendant alleges that he took possession and has since retained ownership and control thereof and has consistently paid land rates and other outgoings relating to the suit property demonstrating continuous dominion and ownership. He produced evidence that he has been paying land rates. The plaintiffs allege having taken possession of the property in 2012 and being in possession to date. The defendant denies the allegation and states that he has been in possession of the property. The burden of proof lies on the plaintiff to prove that he has been in possession for 12 years since 2012. The evidence relied upon by the plaintiff consists of some old stones dumped on the site and overgrown with grass and trees without an indication when the stones were dumped and by who. This court visited the site and found the said stones and sand overgrown with grass and weed. It looked like they were deposited by a person on a day and that was all. There is no structure or any sign of long occupation or possession on the land save for the recently constructed Mabati House which appeared to have been constructed a few months before this suit was filed. During the site visit, it was established that the structure had been put up by one Stephen Muraya who was also claiming ownership. Moreover, there was a maize crop allegedly planted by the plaintiffs but there was no evidence that the plaintiffs had been planting maize on the land from 2012 to 2024. In a nutshell, the plaintiffs did not demonstrate that they had been in exclusive and continuous possession of the property for a period of 12 years. There was no structure constructed by the plaintiffs on the land as the only structure had been recently constructed by other trespassers who withdrew their suit against the plaintiff and defendant. There was no constructed toilet, no barn, and no house on the land. There was an old fence on the outer-part of the land that all parties including Stanley Kariuki Karaya the plaintiff in Nakuru ELC No E30 OF 2024, claimed to have erected. There is no evidence that Mr James Keiyo Kiptenai ever took possession of the property on payment of the last instalment and lived there with his family.
The sole issue for determination in this suit is whether the plaintiff has proved the elements of adverse possession to justify the proprietary rights of the defendant being extinguished and his title deed being cancelled and/or revoked and transferred to the plaintiff as the sole proprietor. To start with is whether the argument raised by the defendant that the suit is premature is sound in law. I have personally counted the number of years from the date when it is alleged that possession took place on the 24th March 2012 to the date when the suit was filed on the 12th 2024 and do find that the period is more than 12 years and therefore the suit is not premature. It is trite law that ownership by adverse possession has been given statutory underpinning in sections 7, 13, 17 and 38 of the Limitations of Actions Act (Cap 22 of the Laws of Kenya).
Section 7 of the Act states that:-
“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, on the other hand, stipulates:-
(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.
3.Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in Adverse Possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes Adverse Possession of the land.
3. For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3) of this Act, the land in reversion is taken to be Adverse Possession of the land”.
“Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished”.
Finally, Section 38(1) and (2) states that:-
“(1)Where a person claims to have become entitled by Adverse Possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.(2)An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.
As observed by the court of appeal in the case of Appeal in the case of Andafu v Akhulunya Civil Appeal no 70 of 2019 2025-1 KECA 714 (KLR) courts, on the other hand, have judicially developed the elements which must be satisfied before a claimant can succeed in an action for adverse possession. The locus classicus cases from the Court of Appeal in this regard include: Titus Mutuku Kasuve vs. Mwaani Investments Limited & 4 others [2004] eKLR; Titus Kigoro Munyi vs. Peter Mburu Kimani, Civil Appeal No. 28 of 2014; Wambugu vs. Njuguna [1983] KLR 172) and Karuntimi Raiji vs. M'makinya [2013] eKLR.
The Court of Appeal observed that the principles distilled from these cases are that in order to establish a claim of adverse possession, the possession must be:-
a.Adverse to the interests of the owner – meaning that the claimant is in possession as owner in contradistinction to holding in recognition of or subordination to the true owner or to a recognized superior claim of another;
b.Actual - as opposed to constructive possession where the test is the degree of the actual use and enjoyment of the parcel of land involved by the claimant or his agent, tenant or licensee;
c. Open and notorious - meaning that the possession must be open and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner’s rights are being invaded. Differently put, the possession must be manifest to the community;
d.Without force - meaning that the possession and occupation must have been achieved peaceably not through actual or threatened violence;
e.Exclusive - meaning that the possession must be of such exclusive character that it will operate as an ouster of the owner of the legal title. Differently put, the claimant must demonstrate that she wholly excluded the owner from possession for the required period;
f. Continuous and uninterrupted for the period of twelve years - meaning that the title owner did not re-enter the property under circumstances showing her intention to assert dominion against the adverse user for at least twelve years.
This court finds that the plaintiffs have not satisfied some of the aforesaid principles as they have not proved on a balance of probabilities that the possession was open and notorious and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner’s rights are being invaded. The possession must be manifest to the owner and community. In this case, when the court visited the site, the dumped stones could not be seen because the overgrown grass and the dug toilet was completely overgrown. The possession by the plaintiffs does not fit to be described as open and notorious as it has not been proved that the defendant was aware of the possession for the said 12 years.
The plaintiffs have not proved that he has been in continuous and un-interrupted possession of the suit property with the defendants knowledge for twelve years as what is on record is the planting of crops in the year 2024 and a mabati structure constructed by a third party in the said year that caused the defendant to report to police.
The plaintiffs have not proved that they have been in actual and active use of the property for a continuous 12 years. The evidence availed by the plaintiffs is that they have been in actual use of the property is the maize planted in the year 2024 – 2025.
The upshot of the above is that the plaintiffs have failed to prove his case on the required standards and the same is dismissed with costs to the defendant. declare that Abdi Ali is the lawful a registered proprietor of all that parcel of land known as L.R No. 13287/102 North Njoro Town, measuring approximately 4.047 hectares and that the plaintiffs are trespassers upon the said parcel of land. The plaintiffs, their servants, agents, or any persons claiming under them are ordered to vacate the said parcel of land within 30days from today failing which they shall be evicted therefrom accordance with the law.
The plaintiffs are hereby restrained from cultivating, constructing on, selling, leasing, charging, of LOR No. 13287/102 North Njoro Town. That the Officer Commanding Station (OCS), Ngata Police Station, Shall supervise and ensure compliance with the eviction and enforcement of these orders after the lapse of 30 days, and shall render such assistance as may be necessary to maintain law and order on the ground. Orders accordingly.
Lily Too, Michael Keiyo, Victor Korir, Gabriel Keiyo (hereinafter referred to as the plaintiffs) have come to court against Abdi Ali (hereinafter referred to as the defendant) by way of originating summons praying for declaration that the plaintiffs have become entitled by adverse possession to all that piece of land known as L.R No: 13287/102 North Njoro Town (hereinafter "the suit property) measuring 4.047 hectares situated in Nakuru County for a period of 12 years.
They further pray for an order that the 1st plaintiff be registered as the proprietor and to hold in trust for her behalf and on behalf of the 2nd, 3rd and 4th plaintiffs) of the said piece of land known as L.R No: 13287/102 North Njoro Town situated in Nakuru County measuring 4,047 hectares and that the Deputy Registrar of the Honorable Court does execute all necessary documents to facilitate registration of the 1st plaintiff as the proprietor (in trust) of land parcel L.R No: 13287/102 North Njoro Town measuring 4.047 Situated in Nakuru County measuring 4.047 hectares. That costs of this application be provided for.
The factual background of the claim as stated in the affidavit of Lily Too, a trained teacher is that she is the widow of the late James Keiyo Kiptenai (deceased), who was a National Youth Service senior ranking officer attached to Nakuru whereas the 1st to 4th plaintiffs are her children. The 1st plaintiff’s husband died on 24th March, 2012 due to hypoglycemia diabetes mellitus and left her as the only surviving widow and the children. Upon the demise of her husband on 24th March, 2012 she took over the occupation of L.R No 13287/102 North Njoro Town measuring 4.047, her entry into the parcel was actual, visible, open and notorious in nature. She took possession of the said parcel and started developing it to the exclusion of the whole world undertaking agricultural activities since the date of purchase.
She has been in occupation of the suit land since 24th March, 2012 together with her children upon untimely demise of her husband on 24th March, 2012 and therefore claims that she acquired the whole parcel of land being L.R No: 13287/102 North Njoro Town measuring 4.047 situated in Nakuru County through an act of occupation to the exclusion of the whole world and as the only widow she took over the management of the said piece of land and did agricultural activities from 2012 to date.
Upon the demise of her late husband James Keiyo Kiptenai (deceased), the family continued to live in the suit property to date undertaking agricultural activities and that at no point in time has anyone encroached into the said suit property since 2012 when her husband passed on. The 1st plaintiff depones that as the widow to the late James Keiyo Kiptanui (Deceased), she is likely to be left out to the hands of strangers who might tamper with the land and disinherit her from the land which she calls home for more than12 years now.
She admits that the suit property is registered in the name of one Abdi Ali but she has been in occupation from 2012 to date without any interruption. That the family has always been in peaceful and open possession, occupation and use of the suit property to the exclusion of the defendant for a period of over 12 years. They have structures on the suit properly and have planted maize and trees, which have matured. She contends that the defendant has never attempted to assert his rights over the suit property since the year 2012 when he took possession. Even then from 2012, after the demise of her late husband she had been in possession for a period of 12 years
Defendants Case
The defendant filed a response vide an affidavit sworn on 7th November 2025 stating that he is the registered proprietor of all that parcel of land known as L.R No. 13287/102 North Njoro Town, measuring approximately 4.047 hectares.
He deposes that he was allocated the suit property by the Agricultural Development Corporation (ADC) in 1988, after which full titling was concluded in 1991, long before the plaintiffs’ alleged occupation. He was an employee of ADC between 1970 and 1993, and his allocation arose as part of an employee settlement programme, after which he took possession and has since retained ownership and control thereof and has consistently paid land rates and other outgoings relating to the suit property demonstrating continuous dominion and ownership. According to the defendant, the plaintiffs’ entire case is premised on falsehoods, contradictions, and deliberate misrepresentation of both facts and law. Their alleged possession neither meets the statutory nor factual threshold for adverse possession.
He contends that the plaintiffs’ allegation to have taken possession of the property upon the demise of one James Keiyo Kiptenai on 24th March 2012 implies that the alleged possession would only have begun in 2012, meaning the statutory 12-year period could not have lapsed by the time of filing in 2024. He depones that the alleged entry was not peaceful, open, or uninterrupted but was recent and forceful, amounting to nothing more than trespass.
He states that during a site visit ordered by this Honorable Court, it was confirmed that the property had no signs of long habitation or settled use, save for a recently constructed temporary structure, clearly erected to an attempt to manufacture evidence of occupation.
The existence of a disputed crop at the time of the site visit claimed both by the plaintiffs and another party further demolishes the allegation of exclusive possession. True adverse possession cannot exist where possession is shared, contested, or interrupted.
The defendant contends that plaintiffs’ participated in previous proceedings, namely ELC Case No. E30 of 2024 (Stanley Kariuki Karaya vs Abdi Ali & Others), wherein they filed pleadings asserting they were purchasers of the same property. They are thus approbating and reprobating alternately claiming to be purchasers and then adverse possessors as convenience dictates. This is a blatant abuse of the court process and exposes their deceitful scheme to grab the land.
The defendant states that he has never vacated the property and has at all material times remained in control and possession thereof, either personally or through the oversight of his long-time neighbor, Mrs. Zipporah Rotich, who has been residing adjacent to the property and, with his authority, has kept her own livestock on the land and assisted in tending and guarding the parcel for over twenty (20) years.
The defendant states that upon the recent forceful entry by the plaintiffs and other trespassers, he immediately reported the incident to the Police at Ngata Police Station, and the same was duly recorded and investigated under 0B NO. 09/19/3/2024 and therefore it is therefore false and misleading to allege that the plaintiffs’ have been in open, exclusive, or continuous possession. Their entry is recent, forceful, and illegal, amounting to trespass rather than adverse possession
The land has been targeted by serial land grabbers, including the plaintiffs and the said Mr. Karaya, whose claim was recently dismissed. The plaintiffs conduct is part of the same pattern of fraudulent encroachment. That in light of the foregoing, the plaintiffs claim for adverse possession is misconceived, dishonest, and fatally defective both in law and in fact.
The defendant prays that the Originating Summons be dismissed with costs, and that this Honorable Court be pleased to declare that Abdi Ali is the lawful a registered proprietor of all that parcel of land known as L.R No. 13287/102 North Njoro Town, measuring approximately 4.047 hectares and that the plaintiffs are trespassers upon the said parcel of land. He prays that the plaintiffs, their servants, agents, or any persons claiming under them be ordered to vacate the said parcel of land forthwith failing which they shall be evicted therefrom accordance with the law.
The defendant prays that the plaintiffs be condemned to pay mesne profits to the defendant for the entire period of unlawful occupation, the quantum whereof to be assessed by the Court and a permanent injunction be issued restraining the defendants, their agents, servants, or any other persons claiming through them from entering upon, cultivating, constructing on, selling, leasing, charging, or in any other manner interfering with the defendants quiet possession and ownership of LOR No. 13287/102 North Njoro Town. That the Officer Commanding Station (OCS), Ngata Police Station, Shall supervise and ensure compliance with the eviction and enforcement of these orders, and shall render such assistance as may be necessary to maintain law and order on the ground and that the plaintiffs do pay the costs of this suit to the defendant.
When the matter came up for hearing it was agreed that the parties do proceed with the matter by way of affidavits and written submissions and judgment was slated for 5th February 2026.
Rival Submissions
The plaintiff submits that he is entitled to the orders sought in the originating summons as the rightful owners of land parcel known as L.R No: 13287/102 located in North of Njoro Town situate in Nakuru County measuring 4.047 Hectares under adverse possession. The plaintiff relies on the case of' Gabriel Mbui — Versus - Mukindia Maran a 1993 eKLR which has defined adverse possession in the following terms:
“…..the non-permissive physical control over land coupled with the intention of doing so, by a stranger having actual occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of' the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owner's enjoyment of land for purposes for which the owner intended to use it.”
The plaintiffs invoke the provisions of Section 7, 37 and 38 of the Limitation of Actions Act. Section 7 of the Limitation of Actions Act specifically Provide thus:
"Section 7. Actions to recover land'
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. "
Act. "
The plaintiff urges the court to acquaint itself with the decision of Andafu v Akhulunya (Civil Appeal 70 of 2019) [20251 KECA 714 (KLR) (25 April 2025) (Judgment) where a three judge bench while citing the cases of Titus Mutulcu Kasuve vs. Mwaani Investments Limited & 4 others [20041 eKLR: Titus Rigoro Munvi vs. Peter Mburu Kimani, Civil Appeal No. 28 of2014: Wambugu vs. Niuguna. {19831 KLR 172) and Karuntimi Raiii vs. M'makinva (20131 elCLR highlighted key distilled principles for a claim of adverse possession. That adverse claims must be:
"a) Adverse to the interests of the owner -- meaning that the claimant is in possession as owner in contradistinction to holding in recognition of or subordination to the true owner or to a recognized superior claim of another;
b) Actual - as opposed to constructive possession where the test is the degree of the actual use and enjoyment of the parcel of land involved by the claimant or his agent, tenant or licensee;
c) (hen and notorious - meaning that the possession must be open and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner's rights are being invaded. Differently put, the possession must be manifest to the community;
d) Without force -meaning that the possession and occupation must have been achieved peaceably not through actual or threatened violence;
e) Exclusive - meaning that the possession must be of such exclusive character that it will operate as an ouster of the owner of the legal title. Differently put, the claimant must demonstrate that she wholly excluded the owner from possession for the required period;
f) Continuous and uninterrupted for the period of twelve years - meaning that the title owner did not re-enter the property under circumstances showing her intention to assert dominion against the adverse user for at least twelve years. "
The plaintiff submits that it is not disputed that the claimed parcel herein known as L.R No: 13287/102 is registered in the name of ABDI ALI (the Respondent) and a copy of the Certificate of Title has been annexed to the affidavit in support of this application marked as 66 LT-3" issued on 22nd February, 1991 to Abdi Ali. The Applicants filed this application in their individual capacities that they have been in open occupation of whole land parcel known as L.R No:13287/102, located in North of Njoro Town within Nakuru County measuring 4.047 Hectares, for a continuous uninterrupted period of over twelvc years as from 24th March, 2012 up to now with knowledge and exclusion of the Respondent, (the registered owner of the claimed land hereinabove). The plaintiffs submit that James Kipatnui Keiyo(deceased had paid his last installments and had occupied the land until his demise in 2012. He had paid all the purchase price and he ought to have been registered as the actual owner since there was no dispute between him and the Abdi Ali herein.
The claimed parcel being agricultural land, the plaintiff fenced the subject parcel and have tilled the said parcel since their entry in 2012. The fencing of the entire claimed parcel and growing of trees, maize and wheat to exclusion of the defendant amounts to openness/no secrecy and crops therein amounts to long term commitment to use of the claimed land.
The time for the purpose of this claim therefore starts running from 24/3/2012 to the time of filing of this claim on 13th May, 2024. The computation of time herein indicates the defendants have been in occupation of the claimed parcel for 12 years and 45 days. This therefore meets the statutory timelines as provided for in Section 7 of the Limitation of Actions Act. The plaintiffs invite the court to give effect to Section 38 (1) of the Limitation of Actions Act and do grant order that the plaintiffs be registered as the proprietors of land parcel L.R No: 13287/102 as they are legally entitled to the said parcel entirely. The plaintiffs are alive to the sentiments of J.Kuloba in Gabriel Mbui vs Mukindia Maranya (1993) eKLR, where the learned judge held on the aspect of permissive possession perspicaciously that:-
"(3) The occupation of' the land by the intruder who pleads adverse possession must be non- permissive use, i.e. without permission from the true owner of the land occupied. It has been held many times that acts done under licence or permitted by, or with love of, the owner do not amount to adverse possession and do not give the licensee or permitted entrant any title under the limitation statute, If one is in possession as a result of permission given to him by the owner, or if he is in possession of the land as a licensee from the owner, he is not in adverse possession. Permissive occupation is inconsistent with adverse possession. "
The plaintiffs were granted free entry by the one Abdi Ali the defendant in the year 2012 after the demise of her husband (James Kiptenai Keiyo) and the plaintiffs have not alleged any purchasers' interest of the claimed parcel from the defendant.
The true position since they inherited the suit land from their father can be best described by a dicta in Wambugu v Niuguna 119831 KLR 171 which laid down the following guiding principles as regards adverse possession;-
Where a claimant pleads the right to land under an agreement and in the alternative seeks an order based on subsequent adverse possession, the rule is the claimant's possession as deemed to have become adverse to that o/ the owner after the payment or the last installment or the purchase price. The claimant will succeed under adverse possession upon occupation of at least 12 years after such payment (Underlined for our emphasis)
Ultimately, the plaintiffs submit that they have clearly proven adverse interests of the claimed land, actual, open and exclusive possession of the claimed land for a continuous uninterrupted period of over twelve (12) years and thus their rights over the claimed parcel should be granted to them. They pray that the suit be allowed with costs.
The defendant submits that the plaintiffs’ case is contrived, legally untenable, factually incoherent, and amounts to an unrelenting attempt to dispossess a lawful proprietor through shifting narratives and forged documentation. Conversely, that the defendant is the original allottee, lawful registered owner, and one who has never abdicated control, upheld not merely by documentation but by the continuum of fact, conduct, and corroborated community knowledge.
The defendants argue that suit for adverse possession was filed prematurely before the lapse of 12 years. According to the plaintiff, adverse possession cannot be claimed against time; time must support the claimant, not betray them.
The defendant reported interference and trespass under 0B No. 09/19/3/2024, interrupting any alleged possession. Once interrupted, time stops running, thereby further invalidating the Applicants' claim. The defendant submits that the possession was neither exclusive nor peaceful. At the site visit conducted by this Honorable Court, what presented was not a picture of occupation but of recent intrusion, evidenced by temporary shanties erected hastily and a crop under competitive claim. This negates exclusivity. The defendant argues that adverse possession cannot be manufactured, it must emerge naturally from peaceful dominion over time and that a claimant cannot be both purchaser and trespasser
The defendant submits that the plaintiffs’ have filed two contradicting sale agreements (1993 & 1994) with discordant signatures and no proof of Consideration, consent, or registration. They cannot both allege a contractual entitlement to the land and adverse possession thereof.
The defendant submits further that he has never abandoned possession and relies on the affidavit of his neighbor Zipporah Rotich, who confirms in sworn testimony grazing livestock on the property with his authority for over 20 years, his dominion over the land has never dissipated. The defendant prays that the Originating Summons be dismissed with costs and that the Court declares the Respondent, Abdi Ali, the lawful and registered proprietor of L.R No. 13287/102 North Nj0f0 Town (4.047 Ha) and that the plaintiffs are trespassers. Orders immediate vacant possession of, in default, authorizes lawful eviction. Awards mesne profits for unlawful occupation (quantum to be assessed). Issues a permanent injunction against interference with the property. Directs the OCS Ngata Police Station to supervise enforcement. Awards costs to the defendant.
Analysis and Determination
The facts of this case are that the defendant is the registered owner of that parcel of land known as L.R NO 13287/102 North Njoro town measuring approximately 4.047 hectares. There is no dispute that he was allocated the suit property by the Agricultural Development Corporation (ADC) in 1988, after which full titling was concluded in 1991, long before the Applicants' alleged occupation. He was an employee of ADC between 1970 and 1993, and his allocation arose as part of an employee settlement program. The defendant alleges that he took possession and has since retained ownership and control thereof and has consistently paid land rates and other outgoings relating to the suit property demonstrating continuous dominion and ownership. He produced evidence that he has been paying land rates. The plaintiffs allege having taken possession of the property in 2012 and being in possession to date. The defendant denies the allegation and states that he has been in possession of the property. The burden of proof lies on the plaintiff to prove that he has been in possession for 12 years since 2012. The evidence relied upon by the plaintiff consists of some old stones dumped on the site and overgrown with grass and trees without an indication when the stones were dumped and by who. This court visited the site and found the said stones and sand overgrown with grass and weed. It looked like they were deposited by a person on a day and that was all. There is no structure or any sign of long occupation or possession on the land save for the recently constructed Mabati House which appeared to have been constructed a few months before this suit was filed. During the site visit, it was established that the structure had been put up by one Stephen Muraya who was also claiming ownership. Moreover, there was a maize crop allegedly planted by the plaintiffs but there was no evidence that the plaintiffs had been planting maize on the land from 2012 to 2024. In a nutshell, the plaintiffs did not demonstrate that they had been in exclusive and continuous possession of the property for a period of 12 years. There was no structure constructed by the plaintiffs on the land as the only structure had been recently constructed by other trespassers who withdrew their suit against the plaintiff and defendant. There was no constructed toilet, no barn, and no house on the land. There was an old fence on the outer-part of the land that all parties including Stanley Kariuki Karaya the plaintiff in Nakuru ELC No E30 OF 2024, claimed to have erected. There is no evidence that Mr James Keiyo Kiptenai ever took possession of the property on payment of the last instalment and lived there with his family.
The sole issue for determination in this suit is whether the plaintiff has proved the elements of adverse possession to justify the proprietary rights of the defendant being extinguished and his title deed being cancelled and/or revoked and transferred to the plaintiff as the sole proprietor. To start with is whether the argument raised by the defendant that the suit is premature is sound in law. I have personally counted the number of years from the date when it is alleged that possession took place on the 24th March 2012 to the date when the suit was filed on the 12th 2024 and do find that the period is more than 12 years and therefore the suit is not premature. It is trite law that ownership by adverse possession has been given statutory underpinning in sections 7, 13, 17 and 38 of the Limitations of Actions Act (Cap 22 of the Laws of Kenya).
Section 7 of the Act states that:-
“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, on the other hand, stipulates:-
(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.
3.Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in Adverse Possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes Adverse Possession of the land.
3. For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3) of this Act, the land in reversion is taken to be Adverse Possession of the land”.
“Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished”.
Finally, Section 38(1) and (2) states that:-
“(1)Where a person claims to have become entitled by Adverse Possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.(2)An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.
As observed by the court of appeal in the case of Appeal in the case of Andafu v Akhulunya Civil Appeal no 70 of 2019 2025-1 KECA 714 (KLR) courts, on the other hand, have judicially developed the elements which must be satisfied before a claimant can succeed in an action for adverse possession. The locus classicus cases from the Court of Appeal in this regard include: Titus Mutuku Kasuve vs. Mwaani Investments Limited & 4 others [2004] eKLR; Titus Kigoro Munyi vs. Peter Mburu Kimani, Civil Appeal No. 28 of 2014; Wambugu vs. Njuguna [1983] KLR 172) and Karuntimi Raiji vs. M'makinya [2013] eKLR.
The Court of Appeal observed that the principles distilled from these cases are that in order to establish a claim of adverse possession, the possession must be:-
a.Adverse to the interests of the owner – meaning that the claimant is in possession as owner in contradistinction to holding in recognition of or subordination to the true owner or to a recognized superior claim of another;
b.Actual - as opposed to constructive possession where the test is the degree of the actual use and enjoyment of the parcel of land involved by the claimant or his agent, tenant or licensee;
c. Open and notorious - meaning that the possession must be open and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner’s rights are being invaded. Differently put, the possession must be manifest to the community;
d.Without force - meaning that the possession and occupation must have been achieved peaceably not through actual or threatened violence;
e.Exclusive - meaning that the possession must be of such exclusive character that it will operate as an ouster of the owner of the legal title. Differently put, the claimant must demonstrate that she wholly excluded the owner from possession for the required period;
f. Continuous and uninterrupted for the period of twelve years - meaning that the title owner did not re-enter the property under circumstances showing her intention to assert dominion against the adverse user for at least twelve years.
This court finds that the plaintiffs have not satisfied some of the aforesaid principles as they have not proved on a balance of probabilities that the possession was open and notorious and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner’s rights are being invaded. The possession must be manifest to the owner and community. In this case, when the court visited the site, the dumped stones could not be seen because the overgrown grass and the dug toilet was completely overgrown. The possession by the plaintiffs does not fit to be described as open and notorious as it has not been proved that the defendant was aware of the possession for the said 12 years.
The plaintiffs have not proved that he has been in continuous and un-interrupted possession of the suit property with the defendants knowledge for twelve years as what is on record is the planting of crops in the year 2024 and a mabati structure constructed by a third party in the said year that caused the defendant to report to police.
The plaintiffs have not proved that they have been in actual and active use of the property for a continuous 12 years. The evidence availed by the plaintiffs is that they have been in actual use of the property is the maize planted in the year 2024 – 2025.
The upshot of the above is that the plaintiffs have failed to prove his case on the required standards and the same is dismissed with costs to the defendant. declare that Abdi Ali is the lawful a registered proprietor of all that parcel of land known as L.R No. 13287/102 North Njoro Town, measuring approximately 4.047 hectares and that the plaintiffs are trespassers upon the said parcel of land. The plaintiffs, their servants, agents, or any persons claiming under them are ordered to vacate the said parcel of land within 30days from today failing which they shall be evicted therefrom accordance with the law.
The plaintiffs are hereby restrained from cultivating, constructing on, selling, leasing, charging, of LOR No. 13287/102 North Njoro Town. That the Officer Commanding Station (OCS), Ngata Police Station, Shall supervise and ensure compliance with the eviction and enforcement of these orders after the lapse of 30 days, and shall render such assistance as may be necessary to maintain law and order on the ground. Orders accordingly.