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ELCDismissedOriginating Summons dated 3rd April, 2023· [2025] KEELC 675 (KLR)

Mohamed v Alcon Engineering Company Limited (Enviromental and Land Originating Summons E019 of 2023) [2025] KEELC 675 (KLR)

Environment and Land Court
20 February 2025
OAO. A. Angote
2,998 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an adverse possession claim because occupation began with the owner's permission, so the 12-year clock only started in 2015.

What this practically means

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Executive summary

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By an Originating Summons dated 3rd April 2023, the Applicant sought a declaration that he is the absolute legal owner of L.R 209/10497/50, Nairobi, by adverse possession, an order directing the Land Registrar to register him in place of the Respondent, and vesting orders. He deponed that in 1992 the Respondent company purchased the property for him on condition it be transferred upon his attaining 65 years or on his death to his children; that on 22nd April 2006 the title deed was handed over to him; and that he has paid rates and rent and occupied the property since. The Summons was undefended. The court framed a single issue: whether the Applicant is entitled to the property by adverse possession. It reaffirmed that an undefended claim does not relieve the Applicant of the burden of proof on a balance of probability, and set out the statutory scheme under Sections 7, 13, 17 and 38 of the Limitation of Actions Act. Applying the principle that possession under leave, licence or an agreement does not become adverse until the licence or agreed period is determined, the court held that time began running when the Applicant attained 65 years - 13th June 2015 per his identity card - meaning the 12-year period ends 13th June 2027 and the suit was brought about four years early. The court also rejected the alternative plea of contractual ownership under the 7th December 1992 agreement because no such prayers were pleaded, parties being bound by their pleadings. The Originating Summons was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Applicant acquired title by adverse possession of L.R 209/10497/50

Holding

No - possession began with permission under an agreement and adverse time only started on 13th June 2015 when the Applicant attained 65 years, so 12 years had not elapsed

Reasoning

The Applicant entered with the Respondent's consent pursuant to an agreement that the property be transferred upon his attaining 65 years. Entry under permission or an agreement is not adverse; time runs only when the agreed period expires without transfer. Using his identity card, he attained 65 on 13th June 2015, so the 12-year period ends 13th June 2027 and the suit filed in 2023 is premature.

p. 6
02

Whether the Applicant's alternative claim of ownership under the 7th December 1992 agreement could be granted

Holding

Rejected, as no such prayers were sought in the Originating Summons

Reasoning

Although counsel submitted an alternate case based on the agreement of 7th December 1992 and Article 40, no corresponding relief was pleaded. The court applied the principle that parties are bound by their pleadings, citing IEBC v Stephen Mutinda Mule, and held the alternative plea raised matters not properly before the Court.

p. 6

Legal principles established

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  • Possession under an agreement with the registered owner does not become adverse until the period agreed for transfer (or licence) expires
  • Parties are bound by their pleadings and evidence at variance with pleadings must be disregarded

Court orders

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  1. 1.The Originating Summons dated 3rd July, 2024 is found to be unmerited and is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Registration of Titles ActSection 57(5)
  • Land Registration ActSections 28 and 73(1)
  • Limitation of Actions ActSections 7, 13, 17, 38(1) and (2)
  • Civil Procedure ActSections 1, 1A, 3, 3A and 63(e)
  • Civil Procedure RulesOrder 37 Rule 7
  • Evidence ActSection 107(1)(2)
  • Companies Act

Cases cited (14)

  • National Bank of Kenya Limited vs Pipe Plastic Samkolit (K) Limited
    [2002] E.A 503 [2002] 2 E.A 503 [2011] eKLR
  • Munyaka Kuna Company Limited vs Bernado Vicezo De Masi (The Administrator of the Estate of Domenico De Masi (Deceased)
    [2018] eKLR
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    [2015] eKLR
  • Gabriel Mbui vs Mukindia Maranya
    [1993] eKLR
  • Samuel Kihamba vs Mary Mbaisi
    [2015] eKLR
  • Richard Wefwafwa Songoi vs Ben Munyifwa Songoi
    [2020] eKLR
  • Wilson Kazungu Katana & 101 Others vs Salim Abdalla Bakshwein & another
    [2015] eKLR
  • Samuel Miki Waweru vs Jane Njeri Richu
    Civil Appeal No. 122 of 2001 (UR)
  • Jandu vs Kirpal
    [1975] EA 225
  • Cheromei vs Muigai
    (Environment & Land Case E005 of 2023) [2024] KEELC 5604 (KLR) (25 July 2024)
  • Peter Mbiri Michuki vs Samuel Mugo Michuki
    (2014) eKLR
  • Public Trustee v Wanduru
    (1984) KLR 314
  • Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • Adetoun Oladeji (NIG) v Nigeria Breweries PLC
    SC 91/2002
Jurisdiction invoked
Article 40 of the Constitution of Kenya, 2010; Section 38 of the Limitation of Actions Act; Order 37 Rule 7 of the Civil Procedure Rules

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, "Mohamed v Alcon Engineering Company Limited (Enviromental and Land Originating Summons E019 of 2023) [2025] KEELC 675 (KLR)", Case Analysis (2025). Originating Summons dated 3rd April, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/675/eng@2025-02-20

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