Majid v Sisters for Justice NGO & 3 others (Environment & Land Case 197 of 2020) [2024] KEELC 974 (KLR)
The bottom line
#A Mombasa court ruled that decades of community use of a private field created binding rights, so the owner lost his trespass case.
What this practically means
#Executive summary
#Key legal issues
#Trespass against a registered proprietor
The plaintiff's suit fails because the defendants' use of the field subsists as an easement/overriding interest, so the use is not unlawful trespass
Although a registered proprietor enjoys the rights of absolute ownership under Sections 24 and 25 of the Land Registration Act, Sections 25, 26 and 28 preserve overriding interests. The court found the community had openly used the field for over twenty years with the plaintiff's knowledge, constituting an easement under Section 2 of the Land Act that overrides the title. The plaintiff therefore failed to prove his case on a balance of probabilities.
Adverse possession counterclaim
The counterclaim fails because the defendants did not prove continuous, open and uninterrupted possession for over 12 years
Applying Section 7, 13 and 38 of the Limitation of Actions Act and the Court of Appeal's requirements in Songoi, Lewa, Mbira and Wambungu, the court held that social activities like football and meetings, occurring on and off since the 1960s, are not actual occupation. The community does not live on the land, so their periodic use cannot found adverse possession.
Existence of an easement by prescription
The field within the suit property is an easement acquired by over twenty years of peaceable, open and uninterrupted enjoyment, overriding the registered title
Relying on Section 32 of the Limitation of Actions Act, Section 2 of the Land Act, Section 28 of the Land Registration Act and Kamau v Kamau, the court found the community's regular use of the half-acre portion as a public field was open, peaceable and without interruption for over twenty years, crystallizing an absolute and indefeasible easement not requiring registration.
Legal principles established
#- Habitual public use of private land does not convert it into public land, nor can defendants rely on the unlawful actions of others to legitimize intrusion
- Periodic social use of land (football, meetings, exercises) does not amount to the actual, continuous possession required for adverse possession
- Long-standing open public use of a portion of registered land for over twenty years may subsist as an easement and overriding interest binding the registered proprietor without registration
Court orders
#- 1.The plaintiff's suit is dismissed for failure to prove the case on a balance of probabilities
- 2.The 1st and 2nd defendants' counterclaim is dismissed
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land in Mombasa (suit property LR. Subdivision 13696 (Original No. 59/2)/I/MN CR. 68680); no specific constitutional provision is invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kunani (Suing as the legal representatives & administrator of the Estate of the Late Wilson Yego) v Yego (Land Case E055 of 2024) [2026] KEELC 2262 (KLR)[2026] KEELC 2262 (KLR)23 Apr 2026
- Lemein v Nabaala; Mutiri & 11 others (Interested Parties) (Enviromental and Land Originating Summons 1 of 2021) [2026] KEELC 567 (KLR)[2026] KEELC 567 (KLR)30 Jan 2026applied
Cite this brief
#Cite this brief
Caselaw, "Majid v Sisters for Justice NGO & 3 others (Environment & Land Case 197 of 2020) [2024] KEELC 974 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/974/eng@2024-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.