(a) Whether the applicants have demonstrated their claim for adverse possession of the suit property.
6.The court has considered the material and submissions on record on this issue. The applicants deposed in their joint affidavit that their members had been operating their businesses on the suit property since 1999 and that they had been in open, continuous and exclusive possession and occupation thereof. They further contended that the respondent who was the owner thereof had never taken any steps to have them evicted from the suit property for a period exceeding 12 years.
8.The court is satisfied on the basis of the uncontroverted affidavit evidence and documentary evidence on record that the applicants and their fellow members of Gatundu Open Air Garage have been in open, continuous, exclusive and uninterrupted occupation of the suit property for a period exceeding 12 years prior to the institution of the suit. The court is further satisfied that their occupation has been without the consent or permission of the respondent who could not be traced for service of court process.
9.The only unusual aspect about the instant suit is that the applicants did not produce an extract of the title to demonstrate that the suit property is registered under any system of land registration in Kenya. They, however, produced a copy of a letter of allotment dated July 20, 1977 in the name of the respondent which described the suit property as LR No 6585/254. The applicants submitted that such a letter is adequate evidence of the respondent’s proprietary interest in the suit property and they cited the case of Benson Mukuwa Wathira –vs- Assumption Sisters of Nairobi Registered Trustee  eKLR in support of their submission.
10.In the said case, it was held by the Court of Appeal, inter alia, that:
11.The court is, however, not persuaded that the circumstances of the instant case are similar to those of the Benson Wachira case. The court is of the opinion that the two cases are clearly distinguishable. In the Benson Wachira case, the suit land had already been registered in the name of the applicant before the suit was filed. There was thus no risk that by the time of making the declaration for adverse possession that he land was still registered in the name of the Government of Kenya.
12.The applicants’ only evidence in the instant suit to demonstrate the respondent’s interest in the suit property is a copy of the letter of allotment dated July 20, 1977. There is no indication on record whether or not the allotee ever accepted the offer in the first place. There is no evidence to demonstrate that the allotee complied with the terms and conditions of allotment. One of the conditions in the said letter stated that:
13.The court is thus of the opinion that if the offer was never accepted and payment made within the prescribed period then the offer may have long lapsed and the land reverted to the Government of Kenya. There is thus a real danger of the court making a declaration for adverse possession of public land vested in the Government of Kenya in contravention of the Limitation of Actions Act (cap 22). That is why the law requires that an applicant for adverse possession should annex a copy of the extract of title to the relevant application.