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ELCDismissedOriginating Summons dated 30th September 2015, filed 5th October 2015 (amended 7th December 2015)· [2022] KEELC 3740 (KLR)

Egesa & 6 others v Mulimba & another (Environment & Land Case 110 of 2015) [2022] KEELC 3740 (KLR)

Environment and Land Court
9 June 2022
AOA. Omollo
2,803 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Long occupation of someone else's land doesn't automatically win you ownership in Kenya — you must prove the occupation was openly hostile, known to the owner, and over a clearly defined piece of land.

What this practically means

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Executive summary

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Seven applicants brought an Originating Summons claiming to have acquired L.R. No. Bukhayo/Mundika/421 (approximately 2.4 hectares) by adverse possession, asserting occupation since 1969 and seeking cancellation of the respondents' registration and transfer of the land to them. The respondents, registered co-owners, denied the applicants' occupation, asserting that the 1st respondent's late husband bought the land in 1969 from Gilbert Ouma, that it lay fallow while they resided in Marachi, and that the applicants began trespassing around 2009 by planting trees. At the hearing, PW1 admitted none of the applicants had built on the parcel because they knew it belonged to someone else, that no boundary existed between parcels 421 and 423, and that the land shared out by their father was believed to be parcel 423. The court held that adverse possession must be proved as a fact, with clear intention to hold adversely and under a claim of right, with the owner's knowledge or means of knowing, and over a demarcated and identifiable portion. Time could only begin running when the applicants discovered the true registration - evidenced by the 2009 restriction on the title - and the 12-year period had not elapsed. The applicants failed to prove hostility, the owner's awareness of their occupation, or demarcated portions. The suit was dismissed with costs to the defendant. Judgment delivered at Busia on 9th June 2022 by A. Omollo J.

Key legal issues

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01

Whether the applicants proved adverse possession of L.R. Bukhayo/Mundika/421

Holding

The applicants did not prove adverse possession; possession was neither shown to be hostile, nor continuous to the owner's knowledge, nor over a demarcated portion

Reasoning

The court applied Wambugu v Njuguna and Kiniani Ruchire, requiring proof of dispossession or discontinuance of the owner's possession, possession nec vi, nec clam, nec precario, with the owner's knowledge or means of knowing. The applicants occupied the land believing it formed part of parcel 423, admitted they did not build because they knew the land belonged to someone else, and never demarcated portions. Time could only run from the 2009 search/restriction.

p. 5
02

Whether the land claimed was demarcated and identifiable

Holding

It was not; the applicants did not show what size of the suit land each was allocated or that the demarcation exercise proceeded

Reasoning

The court held demarcation and identifiability of the portion claimed is a requirement of adverse possession. PW1 admitted no boundary existed between parcels 421 and 423 and none of the applicants had built on parcel 421; the surveyor's exercise of 1990 was not elaborated.

p. 4

Legal principles established

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  • Adverse possession must be established as a fact with clear intention to hold adversely and under a claim of right; it cannot be assumed from mere exclusive possession for twelve or more years
  • Time in adverse possession runs only from when the claimant's possession becomes hostile and known to the registered owner

Court orders

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  1. 1.The applicants' suit is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Limitation of Actions Act (implied by the 12-year statutory period)12-year limitation period for adverse possession

Cases cited (7)

  • Wambugu v Njuguna
    (1983) KLR 173
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Johnson Thaika Nyaga v Kinyua Nyaga & 5 others
    (2018) eKLR
  • Jandu v Kipral
    (1975) E.A 225
  • Kiniani Ruchire vs Swift Ruther Food & Co. Ltd
    (1980) KLR
  • Aziza Soud Hamisi v Loise Nduta Itotia
    (2019) eKLR
  • Mary Ajimbo Nafula & Angeline Nabwire Nyongesa v George Wafula Tororo
    Busia ELC No. 20 of 2019
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act to determine claims of adverse possession over land

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Egesa & 6 others v Mulimba & another (Environment & Land Case 110 of 2015) [2022] KEELC 3740 (KLR)", Case Analysis (2022). Originating Summons dated 30th September 2015, filed 5th October 2015 (amended 7th December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3740/eng@2022-06-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.