Tsutsu aka Mwadena Tsutsu Chirenje v Charo & another (Environment & Land Case E106 of 2022) [2025] KEELC 837 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Registered ownership of the suit property
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
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.
Whether a valid sale agreement existed between the plaintiff and the late Ali Joho Charo
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
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.
Adverse possession counterclaim
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
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.
Legal principles established
#- 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
#- 1.Plaintiff's suit dismissed with costs
- 2.A declaration that the Defendants are the lawful owners of a portion of the suit property measuring one acre or thereabout
- 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.Permanent and mandatory injunction restraining the plaintiff from trespassing, claiming or dealing with the defendants' one-acre portion
- 5.Plaintiff to pay the defendants the costs in the counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.