A man has lost his bid to acquire ownership of land through adverse possession after the court found he failed to prove he had occupied it for the statutory 12 years required by law. However, the court ordered that he be refunded the money he had paid towards its purchase.
The Environment and Land Court in Murang’a ruled that Dickson Kiburi Kamenju did not prove he had occupied the suit property long enough to extinguish the registered owner's title.
The court, however, found that Kamenju had consistently demonstrated that he paid Sh420,000 to the late Humphrey Irungu Mwangi, the respondent's husband, under a sale agreement executed in January 2007.
Kamenju entered into a written agreement to purchase the land from Mwangi and his wife, Loice Wanjiru Irungu, for Sh450,000.
A deposit of Sh150,000 was paid by banker’s cheque, followed by further payments of Sh200,000 and Sh70,000.
The applicant claimed he "took possession of the land immediately and has developed it substantially".
The seller obtained the necessary Land Control Board consent but died before executing the formal transfer. His widow later became the registered owner through a succession cause.
Kamenju lodged a caution against the title.
In his originating summons dated March 27, 2025, Kamenju sought a declaration that he had acquired the land through adverse possession and asked the court to order the Land Registrar to transfer it to him. He also sought orders authorising the Deputy Registrar to sign all necessary survey and transfer documents and requested that the respondent pay the costs of the suit.
The respondent opposed the application, arguing that the suit was incompetent because it described her as the legal representative of her deceased husband despite her being the registered owner.
She maintained that she had received only the initial Sh150,000 and argued that Kamenju had not paid the full purchase price. She also denied that he ever took vacant possession of the land and contended that the claim did not meet the legal threshold for adverse possession.
The respondent further told the court that the land was being cultivated by third parties, not the applicant. Two witnesses supported her account.
Justice Maxwell Gicheru found her testimony "very convincing".
“Regarding the applicant’s occupation of the suit land, I find that he had not proved that he ever occupied the suit land. His evidence on occupation is contradicted by three witnesses who were very convincing that the applicant does not occupy the land,” the judge observed.
“He could not avail even a single witness to corroborate his evidence of occupation yet it is him who has the burden of proof.”
The judge dismissed the adverse possession claim, holding that continuous occupation for 12 years is a prerequisite for such relief and that Kamenju had failed to prove he met that requirement.
However, on the issue of payment, the judge found in favour of the applicant, noting that the respondent had given inconsistent accounts of the amount received from the land sale.
While she initially admitted receiving Sh150,000, she later acknowledged that the total amount received was Sh220,000.
“This wavering and lack of consistency shows that the respondent is not being truthful about the amount received.”
The court ordered the respondent to refund Sh200,000 received on March 12, 2007, Sh150,000 received on April 2, 2007, and Sh70,000 received on October 25, 2007, together with interest at court rates from the respective dates of receipt.
Costs were awarded to the applicant.
