Njeki Agencies Ltd v Kilalo (Civil Appeal E042 of 2023) [2025] KECA 2069 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that someone who openly lives on land for 12+ years can take full ownership if the title holder never acts to evict them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the respondent had the locus standi to file the proceedings before the trial court
- 2.whether the respondent was entitled to the suit property by way of adverse possession
Key legal issues
#Locus standi of a child of a former occupier to bring an adverse possession claim without letters of administration ad litem
The respondent sued in her personal capacity, having been born and raised on the land; a grant ad litem was unnecessary because the suit property never belonged to her deceased mother and no beneficial interest in a deceased's estate was claimed. The trial court's finding on locus standi was upheld.
Letters of administration empower dealings with a deceased's estate, but the deceased mother held no title to the property and could not have licensed or transferred it. Narankaik was distinguished because that plaintiff sought a beneficial interest on behalf of a deceased father's estate. Here the claim rested on the claimant's own open, continuous possession, so she had the right to appear and be heard in her own name.
Whether the respondent perfected title by adverse possession
Yes. Possession from birth (1968) was open, continuous, hostile and undisturbed; the appellant obtained title in 1991/1992, took no steps to evict, adduced no evidence of fencing or cultivation, and mounted no counterclaim for recovery of possession. Title was extinguished by operation of law.
Time ran against the registered title from its issuance; 12 years expired without the owner asserting possession. The appellant asserted ownership but not possession, never sought eviction, and produced no evidence of actual occupation. The respondent, by contrast, showed permanent structures and uninterrupted family occupation. Only an action by the owner asserting possession could have interrupted the running of time, and none was brought.
Whether the respondent could be awarded the entire suit property when she occupied only a portion
The whole property was properly awarded; adverse possession is all or nothing, and the Originating Summons claimed the whole property, not a portion.
A successful adverse possession claim effects a total ouster of the registered owner from title. Since the respondent pleaded a claim to the entire parcel and her evidence showed occupation of the entire property owned wholly by the appellant, the trial court did not err in declaring her proprietor of the whole.
Legal principles established
#- A claimant suing in her personal right for adverse possession need not obtain letters of administration ad litem; such a grant is only required where the claimant seeks a beneficial interest in a deceased person's estate.
- The requirements a claimant must prove in a claim of adverse possession are: the date of coming into possession, the nature of the possession, that the possession was known to the other party, the length of continued possession, and that the possession was open and undisturbed for the requisite 12 years.
- A successful claim in adverse possession entails a total ouster of the owner from the title; it is all or nothing, and the claimant is entitled to the whole property rather than only the portion actually occupied, where the claim pleaded was to the whole.
- Where the title holder knows of a trespasser but neither asserts title nor ejects the trespasser, time in adverse possession continues to run; only a suit by the owner asserting possession would stop it.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Malindi
- ELC Case No. 20 of 2021 (OS)
- Jurisdiction invoked
- First appellate jurisdiction under rule 31(1)(a) of the Court of Appeal Rules, 2022
Relief refused
#Setting aside of the trial court's judgment and decree of 28th September 2023 and dismissal of the respondent's suit, as prayed by the appellant
The respondent established locus standi and proved adverse possession; the appeal lacked merit
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we uphold the Judgment of the Environment and Land Court at Malindi (E. K. Makori, J.) in ELC Case NO. 20 of 2021 (OS) delivered on 28th September 2023. The appeal therefore lacks merit and is hereby dismissed with costs to the respondent.
We therefore summarise the requirements that one must prove in a claim of adverse possession as: a) the date on which the claimant came into possession; b) the nature of the possession; iii) the fact that his possession was known to the other party; c) the length of the continued possession; and d) the possession was open and undisturbed for the requisite 12 years.
A successful claim in adverse possession entails a total ouster of the owner from the title to the suit property. It is all or nothing
the respondent brought the claim for adverse possession in her personal capacity. She did not seek beneficial interest in the suit property as the deceased’s daughter. If this were the case, obtaining grant of letters of administration ad litem would have been necessary.
As long as the owner knows that there is a trespasser on his land and the owner does not assert his title or eject the trespasser, time in adverse possession will run.
Issues in the judgment
#The judgment gives inconsistent descriptions of the year of the respondent's mother's death: elsewhere the appellant is said to contend she died in 2000, yet the supporting affidavit states her demise occurred on 11th December 2020.
The parcel number is rendered inconsistently within the judgment (5054/271 Kilifi CR 22165 versus 50532134/271 Kilifi CR 22165 and Kilifi Cr. 221165).
The judgment states the appellant's title was issued in 1991 in one passage and that the property was allocated to it in 1992 in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njeki Agencies Ltd v Kilalo (Civil Appeal E042 of 2023) [2025] KECA 2069 (KLR)", Case Analysis (2025). Court of Appeal at Mombasa (appeal against ELC Case No. 20 of 2021 (OS), Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2069/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.