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ELCPartially AllowedNot stated in the judgment (ELC Mombasa)· [2025] KEELC 837 (KLR)

Tsutsu aka Mwadena Tsutsu Chirenje v Charo & another (Environment & Land Case E106 of 2022) [2025] KEELC 837 (KLR)

Environment and Land Court
26 February 2025
3,273 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Mombasa court ruled that 22 years of uninterrupted occupation of one acre gave the occupiers ownership, despite the neighbour holding the title deed.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Plot Mikahani/Mawemabomu/Chonyi/386 measuring 1.1 hectares pursuant to adjudication and a title deed issued on 11 October 2019, sued the widow and son of the late Ali Joho Charo for permanent injunction and a declaration of ownership, alleging trespass in September 2022. The defendants counterclaimed, asserting the plaintiff sold a one-acre portion to the deceased in 1998, that they had occupied and farmed it for over 24 years, and claimed ownership by adverse possession. The court framed four issues: registered ownership, trespass, the alleged sale and adverse possession counterclaim, and costs. It found the plaintiff duly registered under sections 24 and 26 of the Land Registration Act, but held that the alleged 1998 sale agreement bore no signatures or thumbprints and failed section 3(3) of the Law of Contract Act. However, on a balance of probabilities the defendants had occupied the land since 1998 with the plaintiff's consent as purchasers; the agreement became void for want of Land Control Board consent, and their continued occupation from 1999 became adverse, maturing over some 22 years. The plaintiff admitted he had never evicted them. The plaintiff's suit was dismissed with costs; judgment was entered on the counterclaim with a declaration of the defendants' lawful ownership of one acre, an order compelling transfer within 90 days (with default execution by the Deputy Registrar), a permanent mandatory injunction against the plaintiff, and costs of the counterclaim to the defendants.

Key legal issues

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01

Registered ownership of the suit property

Holding

The plaintiff is the registered proprietor, having produced a title deed dated 11 October 2019 and a certificate of search confirming registration on 8 January 2019

Reasoning

Under sections 24 and 26 of the Land Registration Act, registration vested absolute ownership in the plaintiff. A letter from the Land Adjudication and Settlement Officer confirmed plot 386 was recorded in his name with no pending dispute. However, registration did not defeat the defendants' adverse possession claim over one acre.

p. 4
02

Whether a valid sale agreement existed between the plaintiff and the late Ali Joho Charo

Holding

No valid sale agreement was proved; the 1998 document bore no signatures or thumbprints and offended section 3(3) of the Law of Contract Act

Reasoning

The agreement relied on lacked signatures or thumbprints of vendor, purchaser and witness. Both alleged signatories to the transaction had died and the defendants did not witness it, leaving the claim uncorroborated. Payments recorded in other documents did not mention the suit property.

p. 4
03

Adverse possession counterclaim

Holding

Established: the defendants entered as purchasers in 1998 and, the sale becoming void for want of Land Control Board consent, possession from 1999 was adverse for over 22 years

Reasoning

Entry was with the vendor's consent as purchasers, so not initially adverse. Once the agreement fell foul of the Land Control Act requirement, continued occupation became adverse. The plaintiff admitted never evicting the defendants, and by 2022 some 22 years had elapsed, exceeding the 12-year limitation period.

p. 6

Legal principles established

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  • A certificate of title is prima facie evidence of ownership under section 26 of the Land Registration Act and can only be challenged on fraud, misrepresentation, illegality, unprocedurality or corrupt scheme
  • A contract for disposition of an interest in land must be in writing, signed by all parties and attested, per section 3(3) of the Law of Contract Act
  • Continued occupation of land after a sale agreement becomes void for lack of Land Control Board consent is adverse to the vendor's title
  • Costs follow the event under section 27 of the Civil Procedure Act

Court orders

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  1. 1.Plaintiff's suit dismissed with costs
  2. 2.A declaration that the Defendants are the lawful owners of a portion of the suit property measuring one acre or thereabout
  3. 3.Plaintiff ordered to transfer the one-acre portion occupied by the defendants within ninety days, in default the Deputy Registrar to execute all necessary documents
  4. 4.Permanent and mandatory injunction restraining the plaintiff from trespassing, claiming or dealing with the defendants' one-acre portion
  5. 5.Plaintiff to pay the defendants the costs in the counterclaim

Authorities

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Legislation

  • Land Registration Actsections 24 and 26
  • Law of Contract Actsection 3(3)
  • Civil Procedure Actsection 27

Cases cited (1)

  • Nelson Kivuvani versus Yuda Komora & Another
    Nairobi HCCC No 956 of 1991
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Tsutsu aka Mwadena Tsutsu Chirenje v Charo & another (Environment & Land Case E106 of 2022) [2025] KEELC 837 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/837/eng@2025-02-26

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