A recent decision of the Court of Appeal in Nyeri has reignited the contentious issue of adverse possession-where a registered owner loses his or her parcel of land to a stranger.
The law allows a stranger to be registered as the owner of land through adverse possession if the trespasser occupies it uninterrupted for a period of 12 years. After that, the landowner is compelled to transfer the land to the stranger. This means that landowners must remain vigilant over the use and occupation of their land.
The matter pitted Ishmael Joram (the owner) against Ephantus Muriithi Obadiah (the squatter) and has dragged on for decades, culminating in a ruling in favour of Muriithi on the basis of adverse possession.
Courts have consistently held that a party claiming adverse possession must prove that they have occupied the land openly, without the licence or permission of the landowner, with the intention of possessing it, and that they have dispossessed the registered owner for the statutory period.
This goes beyond merely establishing that they have been in possession for twelve years. The burden of proving these elements lies with the claimant.
‘In our considered view, none of the actions by the appellant (Ishmael) effectively interrupted the possession of the suit property by the respondent (Muriithi). The verbal warnings, the demand letter and the suit for the cost of damaged trees, cannot be said to have interrupted the use of the land by the respondent,’ said the court.
Evidence presented in court showed that Muriithi is the son and legal administrator of the estate of the late Obadiah Kathanjagui, who was the plaintiff in the original suit filed in the Nyeri High Court in 1978.
Obadiah had initially sued Joram Gaciithire and Ishmael Joram, seeking to be registered as the owner of the land. By consent recorded in court in 1989, the parties agreed to refer the matter to the District Officer for arbitration, but the process never commenced.
Joram later passed away, and the claim against him abated, leaving the case to proceed against Ishmael.
Obadiah stated that he had occupied the suit land for more than 16 years and was therefore entitled to be registered as the owner by virtue of adverse possession. He said he found the land as bush but carried out extensive developments, including planting coffee.
On his part, Ishmael said his father had been allocated the land by his clan in 1960 but did not utilise it as he was working in Nairobi. He stated that he did not know exactly when Obadiah settled on the land, as he was often away, but had asked his father to tell Obadiah to vacate. Ishmael conceded that there were houses, as well as coffee and tea bushes, on the property.
In a judgment delivered on October 4, 2018, the Environment and Land Court (ELC) in Embu held that Muriithi had proved open, continuous and adverse possession of the land and was therefore entitled to it. Dissatisfied with the decision, Ishmael filed an appeal.
Muriithi argued that adverse possession began to run in 1961 and crystallised in 1973. It was his submission that Ishmael’s absence in Nairobi meant he could not reliably state when the occupation began.
A three-judge bench of the Court of Appeal found that Muriithi had proved he had been residing on the land quietly, peacefully and without resistance since 1960.
The court noted that he had developed the property, lived there with his family, constructed houses and planted crops for more than 12 years. He had even buried his wife and three children on the disputed land.
‘A look at the record of appeal shows that the appellant (Ishmael) testified and told the court that he worked in Nairobi from 1961 and used to visit the land occasionally and that it was empty. He reportedly only discovered in 1974 that the land had been cautioned and that one Obadiah had settled on it,’ noted the court.
Claim for adverse possession
The court further observed that the record consistently showed that Muriithi had no permission to occupy the property. ‘This in itself proves the first element in favour of the claim for adverse possession,’ said the court.
It also noted that Ishmael first saw a hut on the property in 1974 and asked his late father to have Obadiah vacate. ‘It seems he did not take any further action until when he wrote a demand letter dated 8th July, 2002 complaining about the trespass,’ said the court.
Although Ishmael later filed a case before a magistrate’s court over the destruction of trees, he did not attempt to evict the occupant.
‘We are in agreement with the ELC Judge that the appellant took a back seat in enforcing his property rights from 1960 when it was registered to him. He admitted in cross-examination that there were houses on the land, coffee and tea bushes, yet he himself was not the owner of those developments,’ said the court.
In an earlier case-Wambugu -v- Njuguna (1983)-the Court of Appeal held that adverse possession involves two key concepts: possession and discontinuance of possession.
The court further held that the proper test is whether the titleholder has been dispossessed or has discontinued possession for the statutory period, not merely whether the claimant has been in possession for the required number of years.
In Nakuru, Grace Wanjiru Wamae recently won a case against the estate of Mwangi Maingi, with the court directing that she be registered as the owner of a parcel of land she had occupied continuously for more than 12 years.
‘The Plaintiff (Grace) has proved that her possession is ‘nec vi, nec clam, nec precario’, that is, peaceful, open and continuous. Her possession is adequate in continuity, in publicity and adverse to the true owner,’ said the court in a ruling on February 9, 2026.
The court directed that the parcel of land measuring approximately 1.5166 hectares, which she had occupied continuously, be registered in her name within 180 days.
Not all adverse possession claims succeed, however.
In a recent ruling, an ELC court in Nyandarua dismissed a claim by a group of 580 women who sought ownership of two parcels of land-measuring about 300 acres and 800 acres-in Ol-Kalou, Nyandarua County, belonging to the estate of former Nyandarua North MP JM Kariuki.
The dispute dates back about 51 years. The women, under the Nyakinyua Ndorua Kanini Kega Farmers Company, sued the widows of the late MP, seeking to be declared owners of the land through adverse possession.
They initially claimed the land had been gifted to them by the late MP, but the transfer was never completed following his assassination. They argued that they had remained in occupation and use of the land without interruption.
However, the court noted that previous decisions had ordered them to vacate the land.
‘As soon as the Judgment in Court of Appeal in Nakuru Court of Appeal Case No. 107 of 1987 was delivered on 28/9/1988 and the moment the Plaintiffs were told to move out and refused, they became trespassers under Section 3 of the Trespass Act,’ said the court while dismissing the claim for adverse possession.