Kibe & 2 others (Suing as the Treasurer, Secretary and Chairlady on their Own Behalf and on Behalf of Twiga Estate Squatters Society) v Mboi-Kamiti Farmers Company Limited (Enviromental and Land Originating Summons 149 of 2011) [2025] KEELC 293 (KLR)
The bottom line
#A Kenyan court dismissed a squatters' claim to land because living there as farm workers counts as permission, not ownership.
What this practically means
#Executive summary
#Key legal issues
#Res judicata - whether the claim had been previously and conclusively determined in prior suits
The claim was not res judicata; the prior cases were not considered by way of evidence, no hearings were undertaken, and the parties were not entirely similar.
The court reviewed the doctrine under Section 7 of the Civil Procedure Act, noting it requires the same parties or privies litigating under the same title before a competent court with the matter heard and finally determined. The Defendant relied on HCCC No. 781 of 2004, ELC Nos. 170, 487, 57, and Petition No. 592 of 2013, but the court found the prior decisions were not adduced as evidence at trial and the parties across the cases were not identical, so the plea failed.
Whether adverse possession was established
Adverse possession failed because the Plaintiffs' initial entry onto the land was permissive, arising from employment on the farm.
All six Plaintiffs' witnesses testified that they or their parents came to Twiga Farm as employees. Entry under employment or licence is permissive and cannot become adverse. The court applied Mtana Lewa and Gabriel Mbui, holding that possession under licence or permission does not amount to adverse possession and a claimant must show how and when possession ceased to be permissive. The Plaintiffs did not discharge that burden.
Compliance with Order 37 Rule 7 - certified extract of title
The contention that the suit was fatally defective for lack of an extract of title failed because Plaintiffs' witnesses produced extracts of title in evidence.
The rule requires a certified extract of title to be annexed to the supporting affidavit. The Plaintiffs' bundle produced at trial contained extracts of the titles at pages 281 to 293, showing the registration history from Robert Graham Bell through Karume Investment Limited to the Defendant, with no objection from the Defendant.
Legal principles established
#- Entry onto land on account of employment is permissive and cannot be deemed adverse to the owner.
- Adverse possession requires non-permissive, actual, open, notorious, exclusive occupation for an uninterrupted period of 12 years (nec vi, nec clam, nec precario).
- A claim for adverse possession can only lie once an individual has been on the property for the statutory period of 12 years.
Court orders
#- 1.The Amended Originating Summons dated 23rd December 2013 is dismissed in its entirety
- 2.Each party to bear own costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution in a claim for adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibe & 2 others (Suing as the Treasurer, Secretary and Chairlady on their Own Behalf and on Behalf of Twiga Estate Squatters Society) v Mboi-Kamiti Farmers Company Limited (Enviromental and Land Originating Summons 149 of 2011) [2025] KEELC 293 (KLR)", Case Analysis (2025). Amended Originating Summons dated 23rd December 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/293/eng@2025-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.