4.PW1- Teresia Muthoni Njobe, the 1st Plaintiff adopted her Supporting Affidavit as her evidence chief and the annexures thereto as exhibits. She added that she is 100 years and has lived on the suit property all her life and that no one has ever evicted him.
5.PW2 – Gerald Chege Mwangi, the 2nd Plaintiff adopted the contents of the Supporting Affidavit as his evidence in chief. He added that he has been in occupation of the suit land since 1990, and which occupation was with the knowledge of the Defendant.
6.The Plaintiffs thereafter filed their written submissions through the Law Firm of J. K Ngaruiya & Co. Advocates, wherein they maintained that they have acquired title over the suit land by dint of adverse possession. The Plaintiffs invited this Court to the legal principles on adverse possession as set out in Sections 7, 13 and 38 of the Limitations of Actions Act. Further reliance was placed on the case of Mate Gitabi vs Jane Kabubu Muga & Others (Unreported), where the Court highlighted the principles for grant of orders for adverse possession as being in exclusive possession of the land, open and uninterrupted possession for over 12 years.
7.It was their submissions that time started running on 26th May, 1998, when the Order for committal was issued. In the end, they submitted that their occupation and possession of the suit property is akin to the principles of adverse possession set out above. They urged this Court to find in their favour against the Defendant.
8.This Court has perused a copy of a Green Card produced before it as exhibit and it shows that the suit land was registered in the name of Defendant on 2nd February 1990, and the said land measures 0.810 Ha. The Plaintiffs produced some two receipts which as per their testimony was issued to them by Kakuzi Limited, when the suit land was allocated to them. The receipts only bear the name of the 1st Plaintiff, and it is not clear how the 2nd Plaintiff acquired possession if any. There is a copy of judgment produced as evidence before this Court for Thika CMCC No. 102 of 1991, which informs the Court that the Defendant herein had filed a suit against the 1st Plaintiff over the suit property, and the matter had proceeded by way of formal proof and Judgment entered against the 1st Plaintiff herein.
9.From the scanty proceedings of Thika CMCC No. 102 of 1991, it is evident for this Court that the Defendant herein had sought eviction orders against the 1st Plaintiff herein, whom as he told the trial Court, had gained illegal ingress into his land in June, 1990. As per the attached proceedings of 30th June 1998, it is evident that the 1st Plaintiff had been successfully evicted from the suit land by Kagethe Auctioneers, but had thereafter gained entry into the suit land. There is no proceeding to show that the trial Court rendered its ruling on 4th August 1998, in line with the proceedings of 30th June, 1998. The Plaintiffs claimed that there were contempt orders against the 1st Plaintiff, but which were never executed. That alive to that, the Plaintiff have been in occupation of the land and have become adverse to the land.
10.The Defendant failed to defend his suit, and thus the Plaintiffs suit remained uncontroverted. However, this did not take away the statutory duty of the Plaintiffs as guaranteed in Sections 107 and 108 of the Evidence Act requiring the Plaintiffs to lead evidence as to their assertions. The Court in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another  eKLR pronounced itself on the strength of uncontroverted evidence and which this Court wholly agrees. The Court held:
11.Further, in the case of Karugi & Another V. Kabiya & 3 Others  KLR 347, the Court of Appeal held:
12.Despite the suit being undefended, the Plaintiffs had a duty to prove their claim on a balance of probability that they acquired title of the land by dint of adverse possession. The burden of proof remains with them throughout, and as such they must adequately discharge this burden. After all, both the Plaintiffs and the Defendant have a Constitutional right to property guaranteed by the Constitution under Article 40. Having been aptly guided on the position of uncontroverted evidence, this Court will then proceed to determine the claim for adverse possession.
13.Having analyzed the pleadings and annexures thereto, the testimonies by parties and having considered the submissions filed the issue for determination is
I. Whether the Plaintiffs have established a claim for adverse possession?
14.There is no dispute that the suit land is registered under the name of the Defendant and such registration confers upon him indefeasible rights over the land. However, this right is subject to the overriding interests declared by section 28 of the Land Registration Act which provides that:
15.Additionally, Section 7 of the Land Act contemplates that land can be acquired by inter alia prescription and any other manner prescribed by an Act of Parliament.
16.The Plaintiffs’ claim is anchored on the limitation of actions as is evident from the pleadings. The Law on adverse possession is set out under the Limitation of Actions Act Section 7, of the Act provides
17.Section 13, on the other hand provides;
18.Section 17 extinguishes the rights of a registered owner, where there is a successful claim for adverse possession. Section 38 on the other hand provides;
19.The principles to satisfy for a grant of an order of adverse possession to issue were well elaborated by the Court of Appeal in the case of Mtana Lewa v KahindiNgalaMwagandi  eKLR, where it was held;-
20.Further, in the case of Mbira v. Gachuhi (2002) 1 EALR 137 the court stated as follows;
21.Similarly, in Kisumu Civil Appeal No. 27 of 2013 Samuel Kihamba v Mary Mbaisi  eKLR, the court held:
22.Further, the Court of Appeal in the case of Richard Wefwafwa Songoi Vs Ben Munyifwa Songoi  eKLR, observed that a person claiming adverse possession, must establish:
23.In applying these principles, this Court has often summarized the questions it will seek to answer in order to establish whether a claim for adverse possession has been made. These questions include:
24.The Plaintiffs case is that they entered into the suit property in 1990, after being allocated land by Kakuzi Limited in May, 1990. To buttress this claim, they produced some copies of receipts issued by Presidential Commission on Large Scale Farms in Makuyu- Murang’a and the other by Kakuzi East Settlement Scheme. Both receipts do not indicate the purpose for the payment and even though in the former receipt it indicates number 262, it is not certain whatever the number was. As per the extract of green card, the land was a government land before it was registered in the name of the Defendant on 2nd February, 1990. There is no indication that it was ever registered in the name of Kakuzi Limited.
25.It is thus not convincible that the land belonged to Kakuzi Limited, who thereafter allocated to the Plaintiffs. However, it is trite law that adverse possession accrues on land, and not title as was well settled in the case of Maweu Vs. Liu Ranching & Farming Cooperative Society,  eKLR: as quoted in the case of Gachuma Gacheru v Maina Kabuchwa  eKLR, where the Court held:
26.The Plaintiffs occupation and possession over the land must have been non-permissive, which is the reason the Defendant had filed a suit against the 1st Plaintiff in Thika CMCC No. 102 of 1991, seeking to evict the 1st Plaintiff herein for being a trespasser. Undoubtedly, their entry into the suit land if any, was without permission or license from the Defendant.
27.The Plaintiffs claimed in the present Originating Summons that they gained entry into the suit land in 1990, but their occupation was subject to a civil claim filed by the Defendant in 1991. It is safe to conclude that time stopped running at the filing of the suit. As noted by the Court in the case of Peter Kamau Njau v Emmanuel Charo Tinga  eKLR, the filing of legal proceedings stops time from running. The Court held:
28.The Plaintiffs occupation of the suit land was interrupted and as noted above, the Plaintiffs were evicted from the suit property by Kagethe Auctioneers in realization of the judgment of the Court in Thika CMCC No. 102 of 1991. However, as pointed out earlier, the Plaintiffs thereafter regained entry into the suit land and it is not certain whether they were ever evicted again.
29.The Defendant herein, had moved the Court in Thika CMCC No. 102 of 1991, for contempt and it is not definite whether the Court ever pronounced itself or not. The Plaintiffs seem to suggest that they continued living on the suit property even after the filing of the contempt proceedings. This Court has not been served with the entire proceedings in the Thika CMCC No. 102 of 1991, it is not clear whether it is by design or default.
30.The Plaintiffs in their submissions submitted that time started running from 26th May, 1998, when the Order for committal was issued. Interestingly, as per the proceedings of the said date, no Order was issued and it’s not clear what nature of application was scheduled for hearing on 30th June, 1998. On the 30th June 1998, the Court after hearing parties gave directions that it would render its Ruling on 4th June 1998, over the application dated 28th September, 1993. Whether the said ruling was ever delivered or not, is not known to this Court.
31.It is also not certain whether the matter was concluded or not. There was no evidence to suggest that the Plaintiffs are in occupation of the property. Perhaps photographs showing structures or developments thereon or even any independent witness to support their stand of occupation. Even though there could be a triviality in relying on photographs not produced by an expert, it would at least aid the Court in arriving at a conclusion of a possible occupation. Even so, there was an option for filing a report by a land valuer detailing the possibility of occupation, and this was not done. The Court in the case of Loise Nduta Itotia v Aziza Said Hamisi  eKLR, had this to say about existence of structures and developments on a disputed property. The majority held:
32.The Court further held;
33.To this end, it would be difficult to discern the nature of occupation or even tell when the Plaintiffs gained entry into the suit land. It was the duty of the Plaintiffs to lead evidence that their re-entry into the suit land continued despite the orders of Court if any. It is not enough to say that the orders of the trial Court were never executed, and as such adverse possession can issue. There was no evidence that the Plaintiffs herein dispossessed of the Defendant of the suit property.
34.As rightly held by the Court in the case of Wambugu vs Njuguna  KLR 172, where the Court held that:
35.It is not enough that no evidence of possession and occupation were placed before this Court, there was no evidence that the Defendant was denied use and occupation of the suit land as a result of the Plaintiffs’ occupation. It is also relevant to point out that this Court was not notified on whether Plaintiffs were occupying the entire parcel of land or a specific portion of it. The need to lead evidence on this was elaborated by the Court in the case of Mount Elgon-Beach Properties Limited v Kalume Mwanongo Mwangaro & another  eKLR where the Court held:
36.Kuloba, J. (as he then was) expounded extensively on the requirement for “exclusive possession” as an essential ingredient in maintaining a claim for adverse possession in the case of Gabriel Mbui vs. Mukindia Maranya  eKLR, where he stated that
37.This Court cannot be guided otherwise. The burden of leading evidence rested with the Plaintiffs and the Plaintiffs have failed to demonstrate their occupation became adverse to the Defendant’s land.
38.To this end, it is the findings of this Court that the Plaintiffs failed on a balance of probabilities to establish the principles for grant of orders of ownership through Adverse Possession.