JUDGMENT
1. By an Originating Summons dated August 21, 2019, the Applicant sought the following orders:
a) That the Respondent’s interest in Kilifi/Mtwapa/439, measuring 4.9 Ha or thereabout, has been extinguished.
b) That the Applicant be registered as the proprietor of all that parcel of land, Kilifi/Mtwapa/439, measuring 4.9 Ha or thereabout, which parcel of land is comprised in a Title Deed in the District Land Registry at Kilifi, in the name of Mary Wairimu Ng’ang’a, on the ground that the Applicant has become entitled to the said land by adverse possession.
c) That the orders referred to in paragraphs 1 and 2 above be registered against the title Kilifi/Mtwapa/439, measuring 4.9 Ha or thereabout, which piece of land is comprised in a Title Deed in the District Land Registry at Kilifi, in terms of Section 38(2) of the Limitation of Actions Act, Cap 22 Laws of Kenya.
d) That the costs of this Originating Summons be provided for.
2. The application was supported by the affidavit of Nicholus Kopo Katana, sworn on the same day, and the Supplementary Affidavit dated 18 August 2025, in which he deposed that the Respondent is the registered owner of all parcel of land known as Kilifi/ Mtwapa/439, measuring 4.9 Ha, and that at all material times to the suit, he, together with his entire family, has lived on the said parcel of land for more than 50 years. He further deposed that he has lived there, cultivated, built permanent houses, reared livestock, conducted business, and raised children without interruption for the period mentioned.
3. The Respondent's case is articulated within affidavits sworn on 29 July 2025 in response to the Applicant's Originating Summons dated 21 August 2025, and on 16 September 2025 in response to the Applicant's Supplementary Affidavit dated 18 August 2025. The Respondent's position, as outlined in the first and second Replying Affidavits, can be summarized as follows: The Respondent is the legal, beneficial, and equitable owner of the parcel known as Kilifi/Mtwapa/439.
4. The Respondent purchased the original parcel of land known as No. 265 at the Mtwapa Settlement Scheme in Kilifi from the original allotee, Mr. Katana Kenga Mbita, under a Sale Agreement dated 14th April, 1982, for a cumulative consideration of KShs. 65,000. In proof of the foregoing, the Respondent has annexed to the first Replying Affidavit, as a bundle, exhibit MWN-2a, copies of the following documents: Copy of the Agreement of Sale dated 14th April, 1982, between Katona Kenga Mbita and the Respondent. Copy of the letter of consent from the Land Control Board for plot No. 265, Settlement Scheme, Mtwapa. Copy of the certificate of outright purchase dated 2nd October 1984. Certified copy of the green card showing that the property was registered in the Respondent's name. Several copies of acknowledgments of receipt of the entire purchase price, dated 14th April, 1982, and 3rd May, 1982, respectively. Copy of the Title Deed for the suit property, dated 21st June 2002, in the Respondent's name. The Respondent has been in possession of the suit property since the purchase.
5. Further, the Respondent has leased the suit property to various individuals for agricultural use since acquiring a clean title. Therefore, the Applicant's allegation that the Respondent is unknown in the area is a ruse intended to mislead this Court. In proof of the foregoing, the Respondent has annexed to the first Replying Affidavit, marked as exhibit "MWN 5a-q," copies of the leases.
6. The Interested Parties contend that before purchasing their respective parcels, they examined the titles, visited the site, and ultimately conducted an official search to ascertain ownership. After being satisfied that the vendor had a good title, they entered into sale agreements, paid the purchase price, obtained transfers from the vendor, and were finally issued with their respective titles. The Interested Parties assert that they are in occupation of their respective parcels. At the time of purchase, they had no notice whatsoever, whether actual, constructive, or implied, of any defect in the vendor's title or any fraud. The Interested Parties are, therefore, innocent purchasers for value without notice; hence, their respective titles require protection by this Court.
7. The parties filed submissions in the disposal of the OS.
8. Based on the materials and submissions before me, the issues I frame for this Court's determination are whether the Applicant proved that the Applicant has acquired the suit parcel of land by adverse possession, whether the Interested Parties are innocent purchasers, and who should bear the cost of the suit.
9. The Applicant presented evidence of structures, a graveyard, and 50 years of uninterrupted residence on the land.
10. That a perusal of the averments in the Respondent's Response to the Originating Summons, sworn on 29th July 2025, the Respondent did not controvert the Applicant's averments. There is no iota of evidence that the Respondent at any time interrupted the Applicant's peaceful and quiet possession of the original suit property.
11. Furthermore, the Respondent did not demonstrate to the Court her whereabouts for over 50 years. She did not tell the Court what action she took when the Applicant was burying the father on the suit property, or when the Applicant was building houses and cultivating on the suit property.
12. That, in the absence of any compelling evidence of permission or interruption by the Respondent, the Applicant has affirmed that he actually dispossessed the Respondent from the suit property.
13. To buttress the submissions, the Applicant has cited various authorities on how to prove adverse possession, including Murangi Stephen Mwangi Gatunge v Edwin Onesmus Wanjau & Mwangi Kimingi [2022] eKLR; Wambugu v Kamau Njuguna (1983) KLR 172; Gabriel Mbui v Mukindia Mranya (1983) eKLR; and Mtana Lewa v. Kahindi Ngala Mwagandi [2015] eKLR.
14. The Respondent submits that the Applicant is a perpetual land grabber with various matters for adverse possession; that the allegations that he has been in the suit property are false; and that the Interested Parties cannot be said to have acquired good titles as innocent purchasers, seeing that the initial title by the Applicant was obtained through an illicit transaction based on falsehood.
15. The Respondent, in support of her submissions, has cited several decisions on how adverse possession is reckoned. They include Benard Otieno Momanyi v Paul Ogango Ogada [2020] KEELC 3002 (KLR); Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR; Mutahi & another v Mbatia (Environment & Land Case E203 of 2020) [2023] KEELC 16428 (KLR) (16 March 2023) (Judgment); Kibunya v Karanja & 2 others (Environment and Land Appeal E023 of 2021) [2023] KEELC 19246 (KLR); and Ogendo v Miyare (Enviromental and Land Originating Summons E035 of 2021) [2025] KEELC 3994 (KLR).
16. The Interested Parties, on the other hand, assert that at the time of acquiring the suit property, the Applicant was the registered owner, not the Respondent, and that the pleadings bind the Respondent (see Daniel Otieno Migore v South Nyanza Sugar Co. Ltd (2018) eKLR). They further contend that the titles they hold warrant protection under Section 26 of the Land Registration Act, citing the decision in Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others (2015) eKLR.
17. I agree with the many decisions cited by the parties on the doctrine of adverse possession and am accordingly guided.
18. The doctrine of adverse possession in Kenya is outlined in Section 7 of the Limitation of Actions Act, Cap 22, which 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
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.”
19. In Mutahi & another v Mbatia [2023] KEELC 16428 (KLR), this Court (Angote J.) observed as follows regarding proof and entitlement to adverse possession:
”For applicants to be entitled to the above orders, they must meet the criteria set out in the case of Gabriel Mbui v Mukindia Maranya [1993] eKLR as follows:
a) The person claiming land by adverse possession must make physical entry and be in actual possession or occupancy of the land for the statutory period.
b) The entry and occupation must be with, or maintained under, some claim or colour of right or title made in good faith by the stranger seeking to invoke the doctrine of adverse possession as against everyone else.
c)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.
d)The non-permissive actual possession hostile to the current owner must be unequivocally exclusive, and with the evinced unmistakable animus possidendi, that is to say occupation with clear intention of excluding the owner as well as other people.
e) Acts of user by the person invoking the statute of limitation to found his title are not enough to take the soil out of the owner or his predecessors in title and to vest it in the encroacher or squatter, unless the acts be done which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it.
f) The possession by the person seeking to prove title by adverse possession must be visible, open and notorious, giving reasonable notice to the owner and the community of the exercise of dominion over the land.
g) The possession must be continuous uninterrupted, unbroken for the necessary statutory period.
h) The rightful owner or paper title holder against whom adverse possession is raised must have an effective right to make entry and to recover possession of the land throughout the whole of, and during, the statutory period.
i)The rightful owner must know that he is ousted. He must be aware that he had been dispossessed, or he must have parted and intended to part with possession.
j) The land, or portion of the land adversely possessed must be a definitely identified, defined or at least an identifiable portion, with a clear boundary or identification. The absence of a plot or title number need not present any difficulty, nor should it be a bar to establishing a claim of adverse possession.”
20. In this matter, the Applicant adduced evidence that he has been in occupation of the suit property for over 50 years, uninterrupted, and that his settlement on the land has been continuous and uninterrupted. He averred that he built on the suit property and that he even buried his father on the suit property.
21. Conversely, the Respondent contends that she purchased the land in 1982, that title was issued to her in 2002, that she took possession, has been in charge, and that she actually leased the property pursuant to the lease agreements exhibited.
22. A review of the leases on record shows they were executed in significant numbers in 2019 and 2023, during the pendency of this OS. They appear to be generic, prepared documents, and none of the lessees were called to testify as to whether they ever leased this land from the Respondent.
23. Other than the Respondent's claim of purchase in 1982, the title issued in 2002, and attempts to secure the property's boundaries, actual possession by the Respondent is not apparent from the evidence she adduced in Court. The annexed photographs do not confirm her actual occupation of the suit property.
24. From the record, the Respondent can be described as an absentee landowner. During her absence, the Applicant took advantage of the situation, occupied the suit property for an uninterrupted period of over 12 years, filed an adverse possession claim that was initially allowed, and has been able to sell the land to other 3rd parties, who have acquired titles and have long since subdivided the land.
25. Based on the evidence adduced by the Parties, the Applicant has proved that he has been on the suit property for over 12 years and was entitled to be registered as the owner under the doctrine of adverse possession.
26. We then revert to the possession as rendered by Odeny J. in the Judgment dated 8th day of May 2023 that the Applicant is entitled to the orders as prayed in the OS.
27. As for the Interested Parties having already acquired titles to the suit properties arising from the decree of this Court, I see nothing to dislodge their averments that they are innocent purchasers for value without notice, and their titles will stand.
28. Consequently, the OS stands proven, the orders sought are affirmed, and the titles held by the Interested Parties stand.
29. As for costs, the Respondent will bear the costs for both the Applicant and the Interested parties.
Dated, signed, and delivered electronically in Nyeri on this 30th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Makworo for the Applicant
Ms.Ambutsi for the Respondent
Mr. Ombachi for the 1st, 2nd, 3rd, 4th, 5th, 7th, and 8th Interested Parties
Mr. Birir for the 6th Interested Party
Kendi: Court Assistant
1. By an Originating Summons dated August 21, 2019, the Applicant sought the following orders:
a) That the Respondent’s interest in Kilifi/Mtwapa/439, measuring 4.9 Ha or thereabout, has been extinguished.
b) That the Applicant be registered as the proprietor of all that parcel of land, Kilifi/Mtwapa/439, measuring 4.9 Ha or thereabout, which parcel of land is comprised in a Title Deed in the District Land Registry at Kilifi, in the name of Mary Wairimu Ng’ang’a, on the ground that the Applicant has become entitled to the said land by adverse possession.
c) That the orders referred to in paragraphs 1 and 2 above be registered against the title Kilifi/Mtwapa/439, measuring 4.9 Ha or thereabout, which piece of land is comprised in a Title Deed in the District Land Registry at Kilifi, in terms of Section 38(2) of the Limitation of Actions Act, Cap 22 Laws of Kenya.
d) That the costs of this Originating Summons be provided for.
2. The application was supported by the affidavit of Nicholus Kopo Katana, sworn on the same day, and the Supplementary Affidavit dated 18 August 2025, in which he deposed that the Respondent is the registered owner of all parcel of land known as Kilifi/ Mtwapa/439, measuring 4.9 Ha, and that at all material times to the suit, he, together with his entire family, has lived on the said parcel of land for more than 50 years. He further deposed that he has lived there, cultivated, built permanent houses, reared livestock, conducted business, and raised children without interruption for the period mentioned.
3. The Respondent's case is articulated within affidavits sworn on 29 July 2025 in response to the Applicant's Originating Summons dated 21 August 2025, and on 16 September 2025 in response to the Applicant's Supplementary Affidavit dated 18 August 2025. The Respondent's position, as outlined in the first and second Replying Affidavits, can be summarized as follows: The Respondent is the legal, beneficial, and equitable owner of the parcel known as Kilifi/Mtwapa/439.
4. The Respondent purchased the original parcel of land known as No. 265 at the Mtwapa Settlement Scheme in Kilifi from the original allotee, Mr. Katana Kenga Mbita, under a Sale Agreement dated 14th April, 1982, for a cumulative consideration of KShs. 65,000. In proof of the foregoing, the Respondent has annexed to the first Replying Affidavit, as a bundle, exhibit MWN-2a, copies of the following documents: Copy of the Agreement of Sale dated 14th April, 1982, between Katona Kenga Mbita and the Respondent. Copy of the letter of consent from the Land Control Board for plot No. 265, Settlement Scheme, Mtwapa. Copy of the certificate of outright purchase dated 2nd October 1984. Certified copy of the green card showing that the property was registered in the Respondent's name. Several copies of acknowledgments of receipt of the entire purchase price, dated 14th April, 1982, and 3rd May, 1982, respectively. Copy of the Title Deed for the suit property, dated 21st June 2002, in the Respondent's name. The Respondent has been in possession of the suit property since the purchase.
5. Further, the Respondent has leased the suit property to various individuals for agricultural use since acquiring a clean title. Therefore, the Applicant's allegation that the Respondent is unknown in the area is a ruse intended to mislead this Court. In proof of the foregoing, the Respondent has annexed to the first Replying Affidavit, marked as exhibit "MWN 5a-q," copies of the leases.
6. The Interested Parties contend that before purchasing their respective parcels, they examined the titles, visited the site, and ultimately conducted an official search to ascertain ownership. After being satisfied that the vendor had a good title, they entered into sale agreements, paid the purchase price, obtained transfers from the vendor, and were finally issued with their respective titles. The Interested Parties assert that they are in occupation of their respective parcels. At the time of purchase, they had no notice whatsoever, whether actual, constructive, or implied, of any defect in the vendor's title or any fraud. The Interested Parties are, therefore, innocent purchasers for value without notice; hence, their respective titles require protection by this Court.
7. The parties filed submissions in the disposal of the OS.
8. Based on the materials and submissions before me, the issues I frame for this Court's determination are whether the Applicant proved that the Applicant has acquired the suit parcel of land by adverse possession, whether the Interested Parties are innocent purchasers, and who should bear the cost of the suit.
9. The Applicant presented evidence of structures, a graveyard, and 50 years of uninterrupted residence on the land.
10. That a perusal of the averments in the Respondent's Response to the Originating Summons, sworn on 29th July 2025, the Respondent did not controvert the Applicant's averments. There is no iota of evidence that the Respondent at any time interrupted the Applicant's peaceful and quiet possession of the original suit property.
11. Furthermore, the Respondent did not demonstrate to the Court her whereabouts for over 50 years. She did not tell the Court what action she took when the Applicant was burying the father on the suit property, or when the Applicant was building houses and cultivating on the suit property.
12. That, in the absence of any compelling evidence of permission or interruption by the Respondent, the Applicant has affirmed that he actually dispossessed the Respondent from the suit property.
13. To buttress the submissions, the Applicant has cited various authorities on how to prove adverse possession, including Murangi Stephen Mwangi Gatunge v Edwin Onesmus Wanjau & Mwangi Kimingi [2022] eKLR; Wambugu v Kamau Njuguna (1983) KLR 172; Gabriel Mbui v Mukindia Mranya (1983) eKLR; and Mtana Lewa v. Kahindi Ngala Mwagandi [2015] eKLR.
14. The Respondent submits that the Applicant is a perpetual land grabber with various matters for adverse possession; that the allegations that he has been in the suit property are false; and that the Interested Parties cannot be said to have acquired good titles as innocent purchasers, seeing that the initial title by the Applicant was obtained through an illicit transaction based on falsehood.
15. The Respondent, in support of her submissions, has cited several decisions on how adverse possession is reckoned. They include Benard Otieno Momanyi v Paul Ogango Ogada [2020] KEELC 3002 (KLR); Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR; Mutahi & another v Mbatia (Environment & Land Case E203 of 2020) [2023] KEELC 16428 (KLR) (16 March 2023) (Judgment); Kibunya v Karanja & 2 others (Environment and Land Appeal E023 of 2021) [2023] KEELC 19246 (KLR); and Ogendo v Miyare (Enviromental and Land Originating Summons E035 of 2021) [2025] KEELC 3994 (KLR).
16. The Interested Parties, on the other hand, assert that at the time of acquiring the suit property, the Applicant was the registered owner, not the Respondent, and that the pleadings bind the Respondent (see Daniel Otieno Migore v South Nyanza Sugar Co. Ltd (2018) eKLR). They further contend that the titles they hold warrant protection under Section 26 of the Land Registration Act, citing the decision in Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others (2015) eKLR.
17. I agree with the many decisions cited by the parties on the doctrine of adverse possession and am accordingly guided.
18. The doctrine of adverse possession in Kenya is outlined in Section 7 of the Limitation of Actions Act, Cap 22, which 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
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.”
19. In Mutahi & another v Mbatia [2023] KEELC 16428 (KLR), this Court (Angote J.) observed as follows regarding proof and entitlement to adverse possession:
”For applicants to be entitled to the above orders, they must meet the criteria set out in the case of Gabriel Mbui v Mukindia Maranya [1993] eKLR as follows:
a) The person claiming land by adverse possession must make physical entry and be in actual possession or occupancy of the land for the statutory period.
b) The entry and occupation must be with, or maintained under, some claim or colour of right or title made in good faith by the stranger seeking to invoke the doctrine of adverse possession as against everyone else.
c)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.
d)The non-permissive actual possession hostile to the current owner must be unequivocally exclusive, and with the evinced unmistakable animus possidendi, that is to say occupation with clear intention of excluding the owner as well as other people.
e) Acts of user by the person invoking the statute of limitation to found his title are not enough to take the soil out of the owner or his predecessors in title and to vest it in the encroacher or squatter, unless the acts be done which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it.
f) The possession by the person seeking to prove title by adverse possession must be visible, open and notorious, giving reasonable notice to the owner and the community of the exercise of dominion over the land.
g) The possession must be continuous uninterrupted, unbroken for the necessary statutory period.
h) The rightful owner or paper title holder against whom adverse possession is raised must have an effective right to make entry and to recover possession of the land throughout the whole of, and during, the statutory period.
i)The rightful owner must know that he is ousted. He must be aware that he had been dispossessed, or he must have parted and intended to part with possession.
j) The land, or portion of the land adversely possessed must be a definitely identified, defined or at least an identifiable portion, with a clear boundary or identification. The absence of a plot or title number need not present any difficulty, nor should it be a bar to establishing a claim of adverse possession.”
20. In this matter, the Applicant adduced evidence that he has been in occupation of the suit property for over 50 years, uninterrupted, and that his settlement on the land has been continuous and uninterrupted. He averred that he built on the suit property and that he even buried his father on the suit property.
21. Conversely, the Respondent contends that she purchased the land in 1982, that title was issued to her in 2002, that she took possession, has been in charge, and that she actually leased the property pursuant to the lease agreements exhibited.
22. A review of the leases on record shows they were executed in significant numbers in 2019 and 2023, during the pendency of this OS. They appear to be generic, prepared documents, and none of the lessees were called to testify as to whether they ever leased this land from the Respondent.
23. Other than the Respondent's claim of purchase in 1982, the title issued in 2002, and attempts to secure the property's boundaries, actual possession by the Respondent is not apparent from the evidence she adduced in Court. The annexed photographs do not confirm her actual occupation of the suit property.
24. From the record, the Respondent can be described as an absentee landowner. During her absence, the Applicant took advantage of the situation, occupied the suit property for an uninterrupted period of over 12 years, filed an adverse possession claim that was initially allowed, and has been able to sell the land to other 3rd parties, who have acquired titles and have long since subdivided the land.
25. Based on the evidence adduced by the Parties, the Applicant has proved that he has been on the suit property for over 12 years and was entitled to be registered as the owner under the doctrine of adverse possession.
26. We then revert to the possession as rendered by Odeny J. in the Judgment dated 8th day of May 2023 that the Applicant is entitled to the orders as prayed in the OS.
27. As for the Interested Parties having already acquired titles to the suit properties arising from the decree of this Court, I see nothing to dislodge their averments that they are innocent purchasers for value without notice, and their titles will stand.
28. Consequently, the OS stands proven, the orders sought are affirmed, and the titles held by the Interested Parties stand.
29. As for costs, the Respondent will bear the costs for both the Applicant and the Interested parties.
Dated, signed, and delivered electronically in Nyeri on this 30th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Makworo for the Applicant
Ms.Ambutsi for the Respondent
Mr. Ombachi for the 1st, 2nd, 3rd, 4th, 5th, 7th, and 8th Interested Parties
Mr. Birir for the 6th Interested Party
Kendi: Court Assistant