SAMSON GITHUA KIBOI V. HANNAH WAMAITHA NJIHIA & WANJIRU NJIHIA

JUDGMENT OF THE COURT

This is a second appeal against the judgment of the Ag. Resident Magistrate, at Thika, in Thika Senior Resident Magistrate's Court Civil suit No.41 of 1991 in which the magistrate held, and was upheld on first appeal to the superior court, that the appellant was a trespasser on part of a parcel of land known as Loc.1/Kirwara/523, and should therefore, quit and deliver vacant possession of it to the respondents or else he be evicted. He, also, declined to consider the appellant's alternative defence, which also formed the basis of his counterclaim, for a declaration under S.38 of The Limitation of Actions Act, Cap 22 Laws of Kenya (the Act), that he had acquired the land by adverse possession, on the ground that he lacked the jurisdiction to consider it.

The original suit which eventually gave rise to this appeal was based on trespass to land. The respondents, as the plaintiffs in the suit, claimed that the appellant had settled on land known as Loc.1/Kirwara/525 an…