Mbatiah v Hightower alias Hightower Faiza Wilbur Earl ((On behalf of the Estate of Wilbur Hightower JR)) (Environment & Land Case 149 of 2017) [2025] KEELC 310 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed an adverse possession claim because the plaintiff admitted he entered the land with the owner's permission.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved exclusive, open and adverse possession of the suit land for over twelve years
The plaintiff failed to prove exclusive possession; there was no evidence of the alleged developments, and his claim was his word against the defendant's
The court found that the plaintiff produced only copies of the register, a cheque, a bank statement and a letter, with no photographs or evidence of the alleged house or developments. The defendant's evidence was that the family of Nathan Kinoti Itonga utilized the land and that the plaintiff's attempt to enter in 1991 was repulsed by a demand letter. The plaintiff also admitted living on his father's own adjacent land.
Whether the plaintiff's admitted permissive entry defeats the claim of adverse possession
Yes - entry and possession with the owner's permission cannot mature into adverse possession
The plaintiff testified on cross-examination that he was permitted by Wilbur Hightower to use the land, and admitted applying for Land Control Board consent to have the land transferred to him as a gift. The court held that adverse possession must be non-permissive and that possession under permission, terminated or not asserted against, is not adverse. The contradiction between claiming a gift and claiming adverse possession led the court to conclude the claim was an afterthought.
Whether the plaintiff's contradictory position (claiming a gift at the Land Control Board while suing for adverse possession) undermined his claim
Yes - the contradictions showed the adverse possession claim was an afterthought without merit
The plaintiff applied to the Land Control Board for consent to transfer the suit land to himself as a gift from the deceased registered owner, which application was deferred after DW3 alerted the family in occupation. The court reasoned that a genuine adverse possessor would not simultaneously claim the land as a gift, and found the adverse possession claim to be a fall-back position lacking merit.
Legal principles established
#- A claim of adverse possession cannot succeed where the claimant's entry onto and possession of the land was with the permission of the owner; adverse possession can only arise out of non-permissive possession.
- The burden of proving the ingredients of adverse possession lies on the person asserting it, on a balance of probabilities.
Court orders
#- 1.The plaintiff's claim is dismissed with costs to the defendant
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act - application for an order that the applicant be registered as proprietor of land by adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbatiah v Hightower alias Hightower Faiza Wilbur Earl ((On behalf of the Estate of Wilbur Hightower JR)) (Environment & Land Case 149 of 2017) [2025] KEELC 310 (KLR)", Case Analysis (2025). Originating Summons dated May 8, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/310/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.