(i) Whether the Applicant has met the threshold for grant of orders for adverse possession.
21.The demised land is registered in the name of Susan Njeri Mwangi, having been issued with title on the 10th July 1995. The effects of such registration were espoused in Section 27(a) of Registered Land Act, Cap 300 (Repealed) and which are now stated in Section 24(a) of the Land Registration Act as follows; -24.Subject to this Act(a)The registration of a person as proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”
22.Additionally, section 25(1) of the said Act provides that such a registered owner’s rights are indefeasible and are held free from all other interests and claims and that the rights can only be defeated in the manner provided under the Act. The rights of a registered owner are however subject to overriding interests declared by section 2 of the Land Registration Act as not requiring noting in the register.
24.The Applicant wishes to defeat title on the basis of prescriptive rights as allowed above. It is the Applicant’s case that they have been in continuous, uninterrupted occupation and possession of the suit property for a period in excess of 12 years. The burden of leading the Court to ascertaining this rests with the Applicant.
25.The Law on Adverse possession is set out under the Limitation of Actions Act. A look at section 7 of the said Act shows that there is a bar on actions to recover land after 12 years from the date on which the right accrued. Further, Section 13 of the same Act provides that adverse possession as the exception to this limitation:(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.(2)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 Again, Section 38 of the said Act provides that:
26.The principle of adverse possession was more elaborately set out in the case of Wambugu vs Njuguna  KLR 172, where the Court held that:
27.This right is adverse to land and does not automatically accrue unless the person in whose this right has accrued takes action.
29.Further, in the case Mbira v. Gachuhi (2002) 1 EALR 137:the court stated as follows;
30.Therefore, to determine whether the Applicant’s rights have accrued, the Court will seek to answer the followingi.How did the Applicant take possession of the suit property?ii.When did they take possession and occupation of the suit property?iii.What was the nature of her possession and occupation?iv.How long have the Applicants been in possession?
31.For a claim for adverse possession to suffice the claimant must demonstrate that the same was non-permissive and non-consensual and without license. It is clear from the above analysis that a claim based on a sale agreement cannot issue since the vendor’s consent and permission is obtained before one can gain ingress into the land. The Applicant’s claim emanates from a purported sale Agreement, which this Court has read and concludes the entry was permissive.
32.However, every rule has an exception and the Court in Nairobi App No. 73 of 1982:- Public Trustee VS Wanduru Ndegwa  eKLR found that in cases of sale agreement Limitation of action begun running from the date of final payment.
33.Further in the case Hosea VS Njiru & Others  EA 526, Simpson J, following Bridges v Mees  2 All ER 577, held that once payment of the last instalment of the purchase price had been effected, the purchaser’s possession became adverse to the vendor and that he thenceforth, by occupation for twelve years, was entitled to become registered as proprietor of the said land.
34.The Respondent has refuted the purported sale and testified that he objected to the sale, and even placed a caution on the suit property. This is corroborated by the attached copy of Judgment that shows Joseph moved Court for removal of caution.
35.The Applicant produced a copy of the sale agreement of 18th April 1994, which shows that one Susan Njeri Mwangi, sold 1 acre of land to Joseph Mwangi Gathiari, for a consideration paid at the signing of the agreement. This Court notes and appreciates that the subject matter of the sale agreement was Loc.18/gachocho/ 853, while presently the Applicant is laying claim on Loc.18/gachocho/4070.
36.According to the Applicant’s statement of 12th November 2021, the foregoing land was sub-divided giving rise to the suit property. This Court perused a copy of a map showing that there was sub-division and although it is not clear from which property sub-division arose from, there are two parcels referenced to in the aforementioned statement being parcel 4069 and 4070. The Respondent did not dispute the details of the agreement and it is right to conclude that there was a sell between the vendor and the purchaser therein. This is a claim for adverse possession and it is trite that such a claim accrues on land and not title, and it matters not that title had not been issued.
37.The Applicant contended that they gained ingress into the suit land after the impugned sell in 1994. DW1 told the Court that Joseph entered into the suit land in 1994, and even though at some point he testified that he was not aware when Joseph took possession. DW2 told the Court that he knew the vendor and purchaser and confirmed that the purchaser was utilizing the suit land though he did not know when he gained entry. Their testimonies corroborated that of the Applicant that they took immediate occupation and possession of the suit land after the sell. For purposes of adverse possession in respect of the one (1) acre, time started running from 1994, after payment of the consideration. This is so because from the tone of the agreement, it is evident that Kshs. 70,000/= was the full and final payment of the suit property.
38.The Applicant testified that his family has been in open and continuous occupation of the suit land. Based on the testimonies of parties, it is apparent that the Applicant’s occupation of the land is well known and as a matter of fact, both DW1 & DW2 confirmed that the Applicant’s family was utilizing the land. PW1 also testified that they have been in occupation of the land and at some point, the Respondent’s family invaded their land and caused destructions thereon, resulting in the filing of the suit property.
39.The Respondent contends that the Applicant have not been in a continuous occupation since, the same was interrupted in 2021, when they took possession. Further, the Respondent submitted and led evidence that in 2017, he issued Joseph with a demand letter, asking him to vacate from the suit property. This was confirmed by DW2 who testified that he delivered the demand letter to Joseph. What can stop time from running is the filing of a suit to assert rights. See the case of Peter Kamau Njau VS Emmanuel Charo Tinga  Eklr, where the Court held:-
41.The suit referenced to in the pleadings is Civil Case No. 530 of 1995, which this Court has established that the Applicant’s father herein moved the Court for removal of caution, which suit was dismissed for misjoinder. The Respondent never filed any suit as a means of asserting rights and the mere fact of issuing a demand letter was not a mechanism for asserting rights. PW1 and PW2 testified that the Respondent’s family invaded the land in 2021. It is evident the Applicant’s family continued to live on the suit land, the demand letter notwithstanding.
42.There is no evidence that their occupation was interrupted up until February, 2021. By the time the Respondent invaded the suit land, the Applicant had been in occupation for close to 27 years. Therefore, this Court has established that there is nothing that stopped time from running within the 12 years of the Applicant’s occupation and possession. Even so, as at February 2021, the Applicant had become adverse to title and is therefore entitled to it.
43.For purposes of computing time, this Court finds that time started running from 1994 and the 2021 interruption notwithstanding, the Applicant’ is entitled to the suit property. To this end this Court finds and holds that the Applicants have met the threshold for the grant of orders of adverse possession.
(ii) Whether the Applicant is entitled to 0.9 Acres to be excised out of parcel Number Loc. 18/Gachocho/4070
44.The Applicant maintained that his father acquired possession and developed the suit land extensively by planting trees, bananas and mango trees. DW1 told the Court that the trees were planted by his mother but what is not in dispute is that the Applicant’s family was utilizing the property and it would be right to conclude that they were responsible for the development thereon. This Court has no reason to doubt the veracity of the Applicant’s evidence, as the action of planting trees, nappier grass and crops as per the annexed photographs shows their intentions of taking possession of the property.
45.Undoubtedly, the Applicant’s occupation and possession could not have been undertaken without the knowledge of the owner. If their occupation was abrasive, the Respondent ought to have moved the Court for eviction orders, but continued to allow them to utilize the land since 1994. To buttress his claim, the Applicant instructed a valuer to prepare a report whose production was not objected to. According to the valuation report, the Applicant’s family were utilizing 0.9 acres of the suit property. The Respondent did not provide any cogent evidence to refute the Applicant’s allegation of complete utilization of 0.9 acres.
46.What flows from the pleadings is that the land is not surveyed. However, the agreements expressly state that the Applicant’s father was entitled to 1 acre to be excised from the land parcel No. Loc.18/ Gachocho/853. From the attached Certificate of Official Search, it is evident that the land is registered under the name of the Susan Njeri Mwangi. Even though the land referenced to in the pleadings and the certificate of official search is Loc.18/ Gachocho/4070. PW1 in his statement testified that there was a sub-division of Loc.18/ Gachocho/853, which gave rise to other properties including the suit property, where the Applicant’s share lies. There was no reason to doubt the Applicant’s testimony that the suit land emanated from the sub-division, as this was also contained in the valuation report.
47.The Applicant in his statement gave evidence as to their occupation of 0.9 acres as opposed to 1 acre contained in the agreement. The Respondent did not controvert this evidence, and this was corroborated in the valuation report to the extent that the Applicant occupied 0.9 acres. According to the Valuation Report, which DW1 agreed with, it indicates that the boundaries could be identified. It follows therefore that the land and boundaries of the land can easily be identified.
49.The Court in the foregoing case found that the requirement of identification was crystalized by the mandatory provisions of Order 37 Rule 7 of the Civil Procedure Rules, which requires that and application for adverse possession be accompanied by a title deed extract.
50.The search certificate shows that the land measuring 0.364ha identified as Loc.18/gachocho/4070. This Court has not enjoyed the benefit of being able to identify the exact occupation of the Applicant out of the entire parcel Loc.18/gachocho/4070, but what is not in dispute is that the Applicant was occupying part of the land which is 0.9 acre. It would not be difficult for this Court to conclude that the Respondent is aware of the Applicant’s confines and or borderlines, the larger portion notwithstanding.
51.In totality, this Court finds and holds that the Applicant has on a balance of probability demonstrated that the estate of their deceased father is entitled 0.9 acre piece of land to be excised from Loc.18/gachocho/4070.
52.The Applicant moved the Court as an Administrator of the Estate of Joseph Mwangi Gathiari, on a Limited Grant. It is not clear whether the estate has been determined and Administrators dully appointed. This Court cannot therefore issue orders that will be adverse to the estate. It is therefore on this basis that the Court finds and holds that the Applicants can only hold trust of the land on behalf of the estate of Joseph Mwangi Gathiari.