1.The plaintiff instituted the suit herein by way of an originating summons dated 11th May 2021 and filed in court on 13th May 2021 seeking adverse possession over land parcel No. Nyaki/nkabune/67. The plaintiff claims to have been in adverse possession for more than 12 years since the year 1990 and that the possession and occupation has been open, unhindered, notorious undisturbed and uninterrupted for all those years. The plaintiff filed an affidavit in support of the originating summons and attached various documents.
2.The defendants opposed the plaintiff’s claim and filed a replying affidavit sworn by Peter Muriuki, the 1st defendant on 9th December, 2021 and a counter claim of even date claiming that the suit land belonged to the defendant’s deceased father and the same is now devolved to the defendants. That the deceased had permitted/licensed/allowed the plaintiff who was a mason to occupy the land and the permission persisted until the year 2018 when the plaintiff purported to bar the defendants from accessing the land and started damaging the trees thereon. The defendant is seeking an order of eviction and permanent injunction against the plaintiff.
3.The plaintiff adopted his witness statement filed on 13th May 2021 as his evidence in chief and produced a copy of records of the suit land, copy of ruling in succession cause no. 198 of 2002, copy of letter dated 30th March 2021 and photographs as P exhibits 1 -4 respectively. He was cross examined and re-examined.
4.It is the plaintiff’s evidence that he entered the suit land in1990 with the permission of M’Muremera M’Rinchuni who was the registered owner of the land and who adopted him as his son. That they lived happily until the year 2001 when the said M’muremera M’richuni passed on, following which the plaintiff filed succession cause No. 198 of 2002 and a grant was issued to the plaintiff on 13th June 2008. However, in the year 2018, the 1st defendant filed for revocation and the grant was revoked and a fresh one issued in the name of the 1st defendant to hold for himself and his mother, the 2nd defendant who is now deceased. It is the plaintiff’s contention that from the year 2001 when M’muremera M’rinchuni died, his occupation on the land became adverse to the estate of M’Muremera M’Rinchuni.
5.The plaintiff called two witnesses to support his case. P.w 2 was Priscilla Mwiriki while Kimandi Eustace testified as P.w 3.
Analysis and Determination
8.The court has carefully considered the pleadings, the evidence and the submissions filed by the parties to support their respective positions. I have also taken into account the legal authorities cited by the parties. The issues for determination are whether the plaintiff has proved his claim for adverse possession to the required standards and whether the plaintiff is entitled to the reliefs sought.
9.In deciding whether or not the plaintiff has proved his claim for adverse possession, the plaintiff must prove that he has been in occupation for a period of over twelve (12) years, that such occupation was open, peaceful and continuous without interruption from the registered owner and that such occupation was adverse i.e inconsistent with the right of the registered owner.
10.In Wambugu – Vs – Njuguna (1983) KLR 173, the Court of Appeal restated the principles of adverse possession and held as follows-;
11.In the case of Mtana Lewa Vs Kahindi Mwangandi  EKLR the Court of Appeal (Makhandi J.A) stated as follows-;
13.Section 13 of the same Act further makes provisions for adverse possession as follows-;
15.Order 37 Rule 7 of the Civil Procedure Rules states that-:
16.In the instant case, the court has noted that the plaintiff is claiming the land through the doctrine of adverse possession. The plaintiff alleges that he has been in occupation of the suit land together with his family since the year 1990 which is a period of more than 12 years. The plaintiff testified that he has made substantial developments on the suit land, to wit built permanent houses, planted trees which are now mature, done farming and generally developed the suit land and that he has lived with his family on the suit land for over 30 years and that the defendant has never set foot on the suit land. On his part defendant stated that he is the beneficial owner of the suit land Nyaki/Nkabune/67 pursuant to a certificate of confirmation of grant in Meru HC Succession No. 198 of 2002. The defendant testified that a previous grant that was issued to the plaintiff was revoked. This fact is confirmed by the plaintiff.
17.At the hearing the plaintiff testified that he entered the suit land with the permission of the owner who allegedly adopted him as his son. The plaintiff’s claim of the land as an heir to the estate of the owner of the suit land was dismissed by the ruling delivered in Meru High Court succession cause No. 198 of 2002.
18.It is trite law that to acquire land by way of adverse possession, one has to prove that he entered the land without the consent of the registered owner, that he remained there in open, peaceful, continuous, exclusive and uninterrupted possession for the requisite period, which is twelve years.
19.It is therefore clear that the occupation of the land by an intruder who pleads adverse possession must be non- permissive use, that is without permission from the true owner of the land occupied. In the case of Gabriel Mbui – Vs Mukindia Maranya (1993) eKLR, Kuloba J. stated as follows-:
20.In the instant case, the plaintiff’s own evidence is that his entry was with the permission of the registered owner who had allegedly adopted the plaintiff as his son. It is worth noting that the material on record indicates that the plaintiff’s claim as an heir to the estate of the deceased in succession cause No. 198 of 2002 was unsuccessful. Going by the threshold set out for adverse possession, it is my view that the plaintiff cannot claim to have had quiet possession when the material on record clearly confirms that there was a dispute in particular in succession cause No. 194 of 2002. If the plaintiff genuinely had a claim for adverse possession, then the question that arises is why did he have to claim the same land as an heir to the estate of the registered owner of the land? More importantly it is quite apparent that the plaintiff’s possession and occupation was with the permission of the registered owner and therefore his claim for adverse possession must fail.
21.It is therefore my finding that the plaintiff has failed to bring himself within the limits of the doctrine of adverse possession.
22.Consequently, it is my findings that the plaintiff’s claim is without merit and the plaintiff’s suit is dismissed with costs to the defendant. Orders are issued in favour of the defendant in terms of the counterclaim.