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ELCDismissedOriginating Summons dated 18th August, 2016 (ELC, Nairobi)· [2025] KEELC 966 (KLR)

Sila v Al Haiee Investments Limited & 5 others (Enviromental and Land Originating Summons 1030 of 2016) [2025] KEELC 966 (KLR)

Environment and Land Court
27 February 2025
6,569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a 20-year adverse possession claim because the claimant couldn't prove exclusive, peaceful occupation for 12 continuous years.

What this practically means

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Executive summary

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The Plaintiff, by an Originating Summons dated 18th August, 2016 brought under sections 37 and 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, sought a declaration that the 1st Defendant's title to L.R No 209/12071/1, Nairobi had been extinguished by adverse possession, an order that he be registered as proprietor, and a declaration that the 2nd to 8th Defendants had no right to the land. He claimed to have entered the land in March 1995 and to have occupied it openly and continuously until his arrest and eviction in February 2014. The 1st Defendant denied the claim, asserting registration on 13th May, 1994, possession through a perimeter wall, leasing for billboards, and repulsion of invasions including the Plaintiff's arrest in a criminal trespass case. The 3rd and 4th Defendants supported the Plaintiff; the 5th and 6th Defendants, though filing a Defence on the company's directorship, adduced no evidence. The court framed two issues: the locus of Diamond Hashim Lalji to testify for the 1st Defendant, and whether the Plaintiff was entitled to the land by adverse possession. It held that the Notice of Change of Directors of 2007 proved Mr Lalji's authority, that the unsigned letter of 22nd May, 2015 had no probative value, and that the untested Defence of the 5th and 6th Defendants was unsubstantiated. On the adverse possession claim, the court found the Plaintiff's evidence of possession undocumented and inconsistent, that he was not in exclusive possession given the 2008 lease to ENG Emirates Neon Group, and that a title holder cannot be in concurrent possession with an adverse possessor. The Originating Summons was dismissed with costs.

Key legal issues

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01

Locus standi of Diamond Hashim Lalji to testify for the 1st Defendant

Holding

The Notice of Change of Directors dated 18th October, 2007 sufficed to prove that Mr Lalji is a director duly authorized to give evidence on behalf of the 1st Defendant; the unsigned letter of 22nd May, 2015 had no probative value and the 5th and 6th Defendants' untested Defence could not displace his authority

Reasoning

The court noted that directorship is relevant only to admissibility of evidence, as it has no jurisdiction over company directorship questions. Relying on Meya Agri Traders, a deponent who swears he is a director and duly authorized is presumed correct unless contradicted. The plaintiff's contrary documents were irrelevant letters or an unsigned letter, and the 5th and 6th Defendants' assertions were unsubstantiated as they never testified. Perpetual succession also permits a director to testify to pre-appointment matters within his knowledge.

p. 9
02

Whether the Plaintiff proved adverse possession of the suit property

Holding

The claim failed: the Plaintiff did not prove actual, open, exclusive, peaceful and continuous possession for 12 years

Reasoning

Although the Plaintiff claimed entry in March 1995, corroborated by PW2, the assertions were undocumented. The Deputy Registrar's site report showed the Plaintiff posed as a caretaker; the plaintiffs in ELC 1264/2013 never mentioned him as occupier; and the 1st Defendant leased the land for billboards in 2008, showing the Plaintiff lacked exclusive possession. Since a title holder cannot be in concurrent possession with an adverse possessor, the plea of adverse possession could not stand.

p. 12

Legal principles established

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  • The net effect of sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the title of the proprietor of land in favour of a party who has been in possession for a minimum of 12 years
  • In a claim for adverse possession, the burden of proof is on the person setting up the claim, on a balance of probability
  • In a claim for adverse possession against registered land, adverse possession dates from the date the Certificate of Title was issued
  • Exclusive possession means that the exercise of dominion over the land must not be shared with the owner
  • Where a party fails to call evidence in support of his case, his pleadings remain mere unsubstantiated statements of fact
  • Once a deponent swears he is a director of a company and duly authorized, the court cannot rule otherwise absent contradicting evidence
  • An unsigned document has no probative value

Court orders

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  1. 1.The Plaintiff's Originating Summons dated 18th August, 2016 is dismissed with costs
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act and 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, "Sila v Al Haiee Investments Limited & 5 others (Enviromental and Land Originating Summons 1030 of 2016) [2025] KEELC 966 (KLR)", Case Analysis (2025). Originating Summons dated 18th August, 2016 (ELC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/966/eng@2025-02-27

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