Whether the Plaintiff has been in adverse possession of the suit property for a period in excess of 12 years.
17.Section 7 of the Limitations of Actions Act provides as follows:-(a)“ An action to recover land 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.”
18.After the expiration of 12 years, a party may approach the High Court under section 38 of the Limitation of Actions Act for a declaration that the property has devolved to him in accordance with the doctrine of adverse possession.
19.Section 38(1) of the Act states as follows;
20.Adverse possession or homesteading is a doctrine founded in law that allows a person who has unlawfully occupied another person’s land for a continuous period of at least twelve years to legally apply for the rights over the property.
21.The Court of Appeal in the case of Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & Another  eKLR sought to define what constitutes adverse possession. The court stated as follows:-
22.This concept of adverse possession has been the subject of many discourses and decisions of this Court. Suffice to mention but two, Kasuve v Mwaani Investments Limited & 4 others  1KLR 184 and Wanje v Saikwa (2) (supra). In the first decision, the court was emphatic that in order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of twelve years either after dispossessing the owner or by discontinuance of possession by the owner on his own volition.
23.In the Wanje case, the Court went further and took the view that in order to acquire by Statute of Limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it and that what constitutes dispossession of a proprietor are acts done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.
24.Further, the court opined that a person who occupies another’s person's land with that person’s consent, cannot be said to be in adverse possession as in reality he has not dispossessed the owner of the land and the possession is not illegal.
25.What these authorities are emphasizing is that for one to stake a claim on a parcel of land on the basis of adverse possession, he must show that he entered the parcel of land more or less as a trespasser as opposed to by consent of the owner. In other words, his entry must be adverse to the title of the owner of the land. It is also possible to enter the land with the consent of the owner, but if the owner at some point terminates the consent and the applicant does not leave but continues to occupy the land and the owner takes no steps to effectuate the termination of the consent for a period of twelve years after then, such applicant would be perfectly entitled to sue on account of adverse possession.
26.Besides adverse entry into the land, the applicant must also demonstrate exclusive physical possession of the land and manifest unequivocally the intention to dispossess the owner. The occupation must be open, uninterrupted, adverse to the title of the owner, adequate, continuous and exclusive as already stated. The burden of proving all these is on the person asserting adverse possession. So that a claim of adverse possession would not succeed if the entry to the land was with the permission of the owner and remains that way throughout, or before the permission is terminated or if before the expiry of the period, the owner of the land takes steps to assert his title to the land. In the case of Samuel Miki Waweru v Jane Njeri Richu, Civil Appeal No. 122 of 2001, (UR), this court delivered the following dictum:
27.From the above decision and numerous other decisions by the superior courts, it is clear that, for a party seeking to be declared as having acquired another person’s land by adverse possession, must prove that they have been in open, continuous non- permissive and exclusive possession of the land in question for a at least twelve years.
28.Exclusive possession was defined in the case of Gabriel Mbui v Mukindia Maranya  e KLR where the Honourable Court held that: -
29.The plaintiff in his testimony stated that he took possession and occupation of the suit land in the year 1976 when his father who had previously been in possession of the land died. He testified that he has constructed his house and several other structures of on the suit property. He further testified that he is engaged in farming, livestock keeping and poultry farming as well. The defendant on the other hand confirmed that the plaintiff is in actual possession of the suit property ploughing it and even leasing it to third parties.
30.From the photographic evidence tendered by the plaintiff, it is clear that the Plaintiff has been in exclusive possession and control of the suit land and demonstrated his animus possidendi in developing the same by building of a permanent house and cultivating thereon. He stated that he has been doing the same since 1976 to date openly, continuously and without interruption by anyone. He testified that upon the death of Micheal Nabibia his son the defendant herein took out letters of administration and later registered the property in his name without his involvement and as such the registration was a nullity without any legal effect as title over the suit land had already extinguished by operation of the law.
31.The plaintiff in his evidence on oath stated that he took possession and occupation of the suit property in 1976 and has been living thereon openly and continuously without interruption by the defendant to-date. On the other hand, the defendant while claiming owners consent testified that the plaintiff’s father was in occupation of the land with the consent of his father who allowed him to graze on the land and take care of it. However, these two men are since deceased with the plaintiff’s father passing on in 1976 and as such the mutual agreement/consent terminated upon death. There was no evidence adduced to the effect that the defendant’s father or the defendant himself renewed the mutual agreement with the plaintiff herein.
32.The defendant produced letters dated the years 2004 and 2005 in support of his claim that the plaintiff’s occupation has not been peaceful and uninterrupted. The plaintiff on the other hand stated that even prior to these letter he had been in occupation of the land for a period of 28 years and that by this time title over the parcel had already extinguished by operation of the law and after the said letter he remained in occupation for 14 years before the defendant instituted a suit for eviction (Kimilili SPM ELC 31 of 2019).
33.The High Court in the case of Kahindi Ngala Mwagandi v Mtana Lewa  eKLR considered the rationale of the doctrine and stated as follows:-
34.On the hand in Adnam Vs Earl of Sandwich(1877) 2 QBD 485, the court held as follows;
35.Closer home, the East Africa Court of Justice (E.A.C.J) in the case of Attorney General of Uganda vs Omar Awadh & 6 Others(2013) eKLR held as follows;-
36.It is therefore the view of this Court that the right to Adverse Possession accrued and vested in the Plaintiff as at 1988 this being 12 years after 1976 so much so that by the year 2012 when the Defendant is changing the title in his name, title had been extinguished in favour of the Plaintiff and he therefore held the title to the suit land in trust for the Plaintiff. There is no evidence that the Defendant ever retook possession of the suit land or part of it nor that he successfully removed or ousted the Plaintiff from the possession of the suit land. The Court is of the view that the chief letter dated 23rd December,2004 and the notice of determination of disputed boundary by the District Land Registrar’s letter dated 16th February,2005 did little to stop time from running nor dislodge the Plaintiff from the suit land.