Court Upholds ‘Promise’ In Two-Decade Nyandarua Land Case

By Suleiman Mbatiah

“People must be held accountable for their promises.” With those words, the Environment and Land Court in Nyandarua resolved a decades-long land dispute, dismissing an adverse possession claim but awarding a widow the land she occupies.

Justice Mugo Kamau ruled that Esther Kabui Githinji and her son Chrispine Ngunjiri Githinji had failed to prove they acquired ownership of several parcels through adverse possession despite claiming occupation since 1965.

The case, filed in 2003, sought cancellation of titles for seven parcels excised from the original land parcel NYANDARUA/OL-KALOU SOUTH/2, namely parcels 216, 218, 219, 220, 221, 915 and 916.

The plaintiffs argued that their family had lived on the land openly and continuously for decades and that the registered owners’ titles should therefore be extinguished under the doctrine of adverse possession.

However, the court found that the occupation of the land by the late Isaac Githinji Rubiru began with permission from his brother Simon Gichuki Rubiru, who was the registered owner.

“If Githinji ever occupied the land… he was so occupying as a licensee of Simon Gichuki,” Justice Kamau ruled, noting that occupation based on permission cannot legally mature into adverse possession.

The judge explained that the plaintiffs failed to provide documentary evidence proving that Isaac Githinji jointly purchased the land or contributed to repayment of the Settlement Fund Trustees loan used to acquire it.

Evidence presented during the hearing showed the original parcel measuring about 35 acres was later sold to Wambugu Gachoya before being subdivided into several parcels and transferred to different buyers.

The land was subdivided into parcels including 216, 218, 219, 220 and 221, while parcel 217 later produced parcels 915 and 916 through further subdivisions over the years.

A government surveyor’s report produced in court showed the land had undergone extensive subdivision, with several resulting plots developed with residential houses, rental units and commercial buildings.

The report also confirmed that the first plaintiff occupies a small portion identified as parcel number 915 where she practices small-scale farming and where the grave of her late husband is located.

During a visit to the land, the court observed that the portion occupied by the plaintiff was much smaller than the 25 acres she had claimed during testimony.

The court also noted contradictions in the plaintiffs’ evidence regarding the exact parcels they occupied and the location of their home and burial site.

The judge further found that previous lawsuits over the land in the 1980s interrupted any continuous occupation required to establish adverse possession under the Limitation of Actions Act.

Additional subdivisions and transfers of the land to other buyers over the years also disrupted the uninterrupted possession required to extinguish the registered owners’ titles.

After reviewing witness testimony, documents and the surveyor’s report, the court concluded that the plaintiffs had failed to meet the legal threshold required to acquire land through adverse possession.

However, the court noted evidence that the family of the registered owner had assured Esther Kabui Githinji that she would be allowed to retain the portion she occupies.

Justice Kamau said the widow had relied on that assurance to develop the land and even bury her husband there, making it necessary for the promise to be honoured.

“People must be held accountable for their promises,” the judge stated before ordering that parcel number NYANDARUA/OL-KALOU SOUTH/915 be transferred to the widow.

The court ordered that the title for parcel 915, previously registered in the name of Wambugu Gachoya, be cancelled and the land transferred and registered in the name of Esther Kabui Githinji.

All other parcels mentioned in the dispute will remain with their current registered owners, while the court directed that cautions and restrictions placed on the titles be lifted.

The judge also ordered that each party bear their own legal costs, bringing to an end a complex land dispute that had remained in court for more than two decades.