Sambaya v Mwai Commercial Agencies [2025] KEELC 4788 (KLR)

Sambaya v Mwai Commercial Agencies (Enviromental and Land Originating Summons E019 of 2023) [2025] KEELC 4788 (KLR) (26 June 2025) (Judgment)

Neutral citation: [2025] KEELC 4788 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Enviromental and Land Originating Summons E019 of 2023

A Ombwayo, J

June 26, 2025

CASE NUMBER: ELCLOS/E019/2023

CITATION: BENARD RICHARD SAMBAYA VS MWAI COMMERCIAL AGENCIES

Between

Benard Richard Sambaya

Applicant

and

Mwai Commercial Agencies

Respondent

Judgment

Introduction 1. The Applicant commenced this suit vide Originating Summons dated 29th September, 2023 against the Respondents seeking the following orders:1. That the Applicant be declared to have become the legal owner entitled by adverse possession of over 12 (twelve) years since 8th October, 2004 of all that 1. 6 acre out of Land Parcel Known as LR. No. Piavy Njoro 1146/3175. 2.That the Applicant be registered as the sole proprietor of the 1. 6 acres out of Land Parcel Known as LR. No. Piavy 114/3175 which is registered in the name of Charles Mathenge Njuki (Deceased).3. That the Respondents either by themselves, agents, servants and /or employees be permanently restrained from interfering with the Applicant’s peaceful possession and occupation of the suit property.4. That the Honorable Court be pleased to direct the Land Registrar to execute the transfer instrument and all other documents attendant to the transfer and registration of the one acre out of Land Parcel Known as LR. No. Piavy 1146/3175 in favor of the Applicant.5. That the costs of this application be provided for. Applicant’s case

2. Benard Richard Sambaya testified as PW1 where he relied on his supporting affidavit sworn on 29th September, 2023.

3. He stated that he was the administrator of the estate of the late Deborah Leunorah Kwanzu. He further stated that the deceased entered into an agreement with the 2nd Respondent through his agent the 1st Respondent on 8th October, 2004. He stated that the purchase price was Kshs. 272,000/= which he paid in installments of Kshs. 170,000/= on 8th October, 2004, Kshs. 60,000/= on 12th November, 2004 and Kshs. 42,000/= on 12th August, 2011.

4. She went on to state that together with her children they have been in exclusive occupancy of the of the 1. 6-acre part of the suit parcel until the deceased’s demise.

5. She stated that the 2nd Respondent has never transferred the suit property.

6. She also stated that she had since learnt that the vendor was deceased and two administratrix were appointed to manage the deceased estate. She stated that the suit land was not among the properties subjected for distribution by the deceased estate.

7. She stated that they have also learnt that the proprietor of the 1st Defendant known as Joseph Mwai was also deceased. She stated that 12 years have since lapsed since his deceased’s wife made the last installment of the purchase price on 16th November, 2004.

8. She urged the court to allow the application as prayed.

9. The Respondents did not file any response to the summons. Submissions

10. None of the parties filed their submissions.

Analysis and Determination 11. I have considered the pleadings and the evidence on record and I am of the view that the following issues need to be determined:a.Whether the Applicant has acquired the suit property adversely.b.Who should bear the costs of the suit.

12. It is not in dispute that the Respondents did not enter appearance or controvert the Applicant’s application despite service.

13. The doctrine of adverse possession is founded under Section 7, 13, 37 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Respondent was aware of such. Section 7 of the Act provides as follows:An action 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. Section 13 “(1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land…”

14. In Kasuve V Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove;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 without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition.”

15. In the case of Public Trustee V Wanduru Ndegwa [1984] KECA 72 (KLR) Kneller JA held as follows: “The position of a vendor and a purchaser of registered land is this. The vendor as the registered owner retains the legal estate and becomes the trustee of it for the purchaser when the purchaser pays a deposit for it. The vendor retains a lien on the property for the balance of the purchase money which disappears when it is paid and the purchaser then becomes the sole beneficial owner and the vendor becomes a bare trustee for the purchaser. If the vendor trustee allows the purchaser cestui qui trust to remain in possession the latter is in adverse possession because the vendor as the absent registered owner always retains the legal estate and this prima facie entitles him to resume possession from the purchaser in possession.

16. The limitation period will begin to run from the date of the payment of the purchase price in full or last instalment of it. See Harman J in Bridges v Mees, [1957] I Ch 475; and Simpson J (as he then was) in Hosea v Njiru Ors, [1974] EA 526 (K). The upshot is that although Kamau is the proprietor of this registered land Mrs Muthoni is in possession and actual occupation of it and has been in possession of it for over twelve years so she has rights acquired under the Limitation of Actions Act…”

17. Further, in the case of East Africa Pentecostal Church through the Registered Trustees V Hezekiel [2024] KEELC 4589 (KLR) the court held as follows:…For adverse possession arising out of an aborted sale agreement or license, the time for adverse possession starts to run after the payment of the entire purchase price or when the license terminates…”

18. In the present case, it is not in dispute that the Applicant jointly with three others purchased the suit property from the 2nd Respondent through its agent the 1st Respondent at a consideration of Kshs. 272,000/=. This is evidenced by the sale agreement dated 8th October, 2004 as well as the receipts (BRS 3a, b & c). It was the Applicant’s case that he has been in quiet, peaceful and continuous occupation of the suit property after purchasing the same from the 2nd Respondent. It is also not in contention that the Applicant’s claim remains uncontroverted by the Respondents.

19. In view of the above, it is this court finds that the Applicants indeed purchased the suit property from the 2nd Respondent and also having paid the full purchase price, the limitation period begun running on November 16, 2004. It is also this court’s view that 12 years have since lapsed from the time the Applicant took possession. In the upshot, I find that the Applicant has satisfied the requirements on adverse possession and therefore legally acquired the suit property by way of adverse possession. The prayers as sought in the originating summons dated September 29, 2023 are hereby allowed as prayed.Each party to bear its own costs. It is so ordered.

SIGNED BY: HON. JUSTICE ANTONY O. OMBWAYOTHE JUDICIARY OF KENYA. NAKURU ENVIRONMENT AND LAND COURT ENVIRONMENT AND LAND COURTDATE: 2025-06-26 17:04:36THE JUDICIARY OF KENYADoc Identity: 2737943223158931552719747456 Tracking Number:OOAD3J2025