a. Whether the Plaintiffs have proved their claim to the required standard
18.The court has considered the material and submissions on record on this issue. It is evident from the material on record that the Plaintiffs were not seeking to enforce the land sale agreements they entered into with the deceased’s husband. They were also not seeking enforcement of the decree they obtained in their favour in the Naivasha case. The pleadings and evidence on record shows that the Plaintiffs were seeking adverse possession of their portions of land because they pleaded that the Defendants’ right to recovery was statute-barred under Sections 7 and 17 of the LAA. The Plaintiffs were also seeking a declaration to the effect that they were entitled to be registered as proprietors of the respective portions of land they were occupying. The court is not aware of any other claim based upon Sections 7 and 17 of LAA which is not a claim for adverse possession. The equitable remedy of trust is not usually founded on the LAA.
19.Be that as it may, the Plaintiffs relied upon the Court of Appeal decision of Macharia Mwangi Maina & 87 Others -vs- Davidson Mwangi Kagiri  eKLR in support of their claim. It must be remembered that the said decision concerned the application of the doctrine of trust to give effect to sale agreements which the High Court had declared null, void and unenforceable for lack of consent of the Land Control Board (LCB). The said decision also recognized the rights of persons in actual possession of land as overriding interests.
20.The elements of adverse possession were summarized in the case of Kasuve –vs- Mwaani Investments Ltd & 4 Others  1KLR 184 as follows:
21.Similarly, in the case of Chevron (K) Limited v Harrison Charo Wa Shutu  eKLR it was held, inter alia, that:
22.There was no serious dispute at the trial that the Plaintiffs have been in possession and occupation of the claimed portions of land for a very long period of time. The Plaintiffs claimed to have taken possession between 1987 and 1995 whereas the Defendants contended that they took possession in 2012. The court has noted that in paragraph 4 of the plaint which the deceased filed in the Nakuru Case, she pleaded that the Plaintiffs had entered the suit property in 1998. The court has further noted that although DW1 stated in cross-examination that he did not know when the Plaintiffs took possession he conceded that they had been in possession since the year the deceased was issued with a title deed in 2004.
23.The court is satisfied on the basis of the evidence on record that the Plaintiffs have been in occupation of the claimed portions of land since at least 1998 when the deceased claimed that they entered the suit property illegally and without lawful justification. However, since the deceased obtained registration of the suit property in 2004 the limitation period shall be reckoned from the date of registration. The fact that the decree in the Naivasha Case became time-barred has really no bearing on the instant suit since the Plaintiffs have no claim against the husband of the deceased who was said to have sold the claimed portions of land to them.
24.There is no doubt that both the deceased and the Defendants considered the Plaintiffs to be trespassers on the suit property. That should be a clear indication that the Plaintiffs’ possession has been without the consent or permission of the true owner. The evidence on record also shows that the Plaintiffs have constructed houses and settled on the claimed portions of land. They have simply been utilizing the claimed portions as their own land in disregard of the proprietary rights of the registered owner.
25.The only issue which is in dispute among the parties is whether the Plaintiffs’ possession and occupation was ever interrupted in the legal sense. The Defendants submitted that the Plaintiffs’ possession was interrupted when the deceased filed the Nakuru Case in 2008 until 2014 when the claim abated. The Defendants cited the case of Kuria Kiarie & 2 Others -vs- Sammy Mugera  eKLR and Githu -vs- Ndeete  eKLR in support of the submission.
26.The Plaintiffs on their part contended that there was no interruption of possession and there was no stoppage of the limitation period by the filing of the Nakuru Case since that suit abated by operation of law upon the demise of the deceased. It was contended that upon abatement the parties were placed in the same position they were in before the filing of the suit. The Plaintiffs cited the case of Lilian Njeri Muranja Mahinda v Virginia Nyambura Ndiba & Another  eKLR and the case of Donald Osewe Oluoch v Kenya Airways Limited  eKLR in support of their submissions.
27.The court is of the opinion that the Donald Osewe Oluoch Case is distinguishable from the facts and circumstances obtaining in the instant suit. The respondent in that case had filed a suit against the appellant before the wrong court (High Court) and by the time it eventually filed the suit before the right court (ELRC) the claim was already time barred under the LAA. The Court of Appeal rightly held that the limitation period did not stop running while the Respondent was pursuing its claim before the wrong court hence it could not be excused for filing its claim before the right court out of time.
28.The court is, however, persuaded by the decision of the High Court in the Lilian Njeri Muranja Mahinda Case (supra) whereby it was held that a suit which is withdrawn, discontinued or dismissed for want of prosecution cannot stop time from running under the LAA. It was further held that it is only a suit which is prosecuted which can stop time from running under the LAA. Justice L. Onguto held, inter alia, that:
29.This court also takes the view that a suit which can effectively stop time from running is one which has been or is being prosecuted. A suit which has been discontinued or dismissed for want of prosecution cannot do. By analogy of reasoning, a suit which has been abandoned or which has abated cannot stop time from running. The reason why the filing and prosecution of a suit is deemed to stop the running of the limitation period is because the owner of the land is deemed to have woken up to enforce his proprietary right by seeking recovery of his land. So, if he afterwards withdraws or abandons the suit, he cannot be said to be still enforcing his right of seeking recovery. Similarly, if he dies during the pendency of the suit and his legal representatives neglect to pursue the claim by seeking substitution and revival of the suit then the claim would simply abate. A claim which has abated cannot seek the enforcement of the rights of the owner.
30.The court is thus of the opinion that the filing of the Nakuru Case which ultimately abated could not stop the running of time under the LAA and it could not be said to have interrupted the Plaintiffs’ possession of the claimed portions of land. The court is of the view that upon abatement the parties were simply taken back to the positions they were in before the filing of the suit by the deceased. In the premises, the court finds and holds that the Plaintiffs’ claim for adverse possession crystallized in 2016, that is, 12 years after the deceased because the registered owner of the suit property.
31.In the circumstances, the court is satisfied that the Plaintiffs have demonstrated their claim for adverse possession of the claimed portions of land to the required standard. The court is satisfied that the Defendants as legal representatives of the deceased are time-barred under Sections 7 and Section 17 of the LAA from seeking recovery of the suit property.
32.The court has considered the material on record against the Plaintiffs’ claim for an equitable remedy in the nature of trust. The court agrees with the Plaintiffs’ submissions that doctrines of equity are applicable by virtue of Articles 10 and 159 of the Constitution of Kenya, 2010 as was applied in the Macharia Mwangi Maina & 87 Others Case. The doctrine of constructive trust was also applied in the more recent case of Aliaza v Saul (Civil Appeal 134 of 2017)  KECA 583 (KLR) (24 June, 2022) (Judgment) where the Court of Appeal stated that:
33.The court is further of the opinion that a claim for adverse possession is not inconsistent with proceedings for confirmation of grant in the succession cause. A claim for adverse possession can be an overriding interest within the meaning of Section 28(h) of the Land Registration Act, 2012 and rights acquired or in the process of acquisition under any law relating to limitation of actions. It is a right which runs with the land and which need not be noted in the land register. Any subsequent owner, including a beneficiary by virtue of success proceedings, takes such land subject to the overriding interest.
34.The above notwithstanding, the court is of the opinion that there was no claim by the Plaintiffs against the deceased’s husband who was the vendor. The suit herein is solely directed at the deceased hence the court is not at liberty to adjudicate a claim against a person who is not a party to the proceedings.
b. Whether the Defendants have proved their counterclaim to the required standard
35.The Defendants sought recovery of the suit property as administrators of the estate of the deceased. They also sought mesne profits and a declaration that the Plaintiffs were trespassers on the suit property. The Plaintiffs submitted that the counterclaim was time-barred under Sections 7 and 17 of the LAA. The Defendants contended that although the deceased was registered as proprietor of the suit property on 04.10.2004 time stopped running when she filed the Nakuru Case in 2008. It was further submitted that time started running again on 10.08.2014 when the said suit abated. It was thus contended that none of the periods above constituted 12 years in order to bar recovery of the suit property.
36.The court has already found earlier in the judgment that the Defendants’ claim for recovery of the suit property is time-barred on account of Section 7 of the LAA. The court has further found and held that the filing of the Nakuru case which ultimately abated could not stop time from running since it was never prosecuted to conclusion. If abortive proceedings were to be accepted as effective in stopping the running of time then nothing would stop a mischievous land owner from filing and withdrawing a suit for recovery of his land every 11 years just to prevent its occupiers from ever succeeding in a claim for adverse possession.
37.The court does not accept the Defendants’ submissions that their counterclaim is not a fresh suit within the meaning of Order 24 rule 7 of the Civil Procedure Rules. The court is of the view that a counter-claim is a suit to all intents and purposes save that it is usually filed by a Defendant who has been sued. It is in the nature of a cross-suit or cross-claim. The distinction the Defendants are trying to create between a suit and counterclaim is merely pedantic.
38.The court has considered the Defendants’ claim that the Plaintiffs’ claim was a challenge to the issue of distribution of the estate of the deceased in the Succession Cause. It was submitted that the Plaintiffs’ claim was res judicata because their protest in confirmation proceedings was dismissed. The court is of the view that the Plaintiffs’ claim for adverse possession in the instant suit is independent of any claim they may have had before the Succession Court. Their protest in the succession cause was not based upon Sections 7 and 17 of the LAA. The court is of the opinion that a person who fails to prove his claim as a beneficiary or creditor of an estate in succession proceedings is not precluded from bringing a claim for adverse possession under the LAA. Consequently, the issue of res judicata cannot arise in the circumstances.
39.As indicated before, nothing really arises out of the judgment and decree issued in the Naivasha Case between the Plaintiffs and the deceased’s husband. That decree died a natural death upon expiration of 12 years from the date it was passed. The Plaintiffs have not sought its enforcement in the instant suit and the judgment debtor in that suit is not a party to the instant suit.