Mwabungare v Mohamed & another (Enviromental and Land Originating Summons 178 of 2020) [2025] KEELC 1057 (KLR)
The bottom line
#A Mombasa court dismissed a 40-year adverse possession land claim because the claimant couldn't prove exclusive occupation, and ordered eviction within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a claim of adverse possession over Mombasa/Mainland South/Block I/1808
The claim failed. The Plaintiff did not show when possession commenced, and his occupation (permitting hawkers, converting a shop to a toilet, residing elsewhere at Mabogani/Magongan) did not demonstrate actual, exclusive, open and continuous possession for 12 years to the exclusion of the registered owner
The court set four questions: how, when, in what manner and for how long the plaintiff took possession. The plaintiff claimed occupation since the 1970s/1980s without specific dates, admitted a residence elsewhere, allowed hawkers without charging rent, and only faced interruption in 2020 when a demand letter stopped a toilet construction. The defendants' evidence of allotment in 1996 and a certificate of lease, together with the pending 2004 civil suit against the plaintiff's uncle, undermined the claim of exclusive possession as of right.
Whether the Plaintiff is entitled to the prayers sought in the Originating Summons
Not entitled; the suit was dismissed in its entirety and the court directed eviction of the Plaintiffs and all occupants within 90 days under Section 152E of the Land Act
Having failed to prove the principles of adverse possession, the plaintiff could not obtain registration as proprietor or extinguishment of the defendants' title. The court further held that the defendants' certificate of lease was protected by Article 40 of the Constitution and Sections 24, 25 and 26 of the Land Registration Act, giving them indefeasible title, and that the plaintiff's allegations of irregular acquisition of the allotment were unsubstantiated under Sections 107 and 109 of the Evidence Act.
Who bears the costs of the suit
Costs of the suit awarded to the Defendants, the plaintiffs having lost the suit
Section 27(1) of the Civil Procedure Act provides that costs follow the event unless the court for good reason otherwise orders. Since the defendants prevailed and the plaintiffs' suit was dismissed in its entirety, the ordinary rule applied and the plaintiffs were to bear the defendants' costs of the suit.
Legal principles established
#- A claimant for adverse possession must prove non-permissive physical control over land, open and to the exclusion of the registered owner, for the statutory period of 12 years; the burden of proving when possession was taken and its nature lies on the claimant under Section 107 of the Evidence Act
- A registered proprietor enjoys indefeasible title under Article 40 of the Constitution and Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012, and allegations of irregular acquisition of title must be substantiated by the party alleging them
- Costs follow the event under Section 27(1) of the Civil Procedure Act, though the award remains at the discretion of the court
Court orders
#- 1.Judgment entered that the suit by the Plaintiff/Applicant as per the originating summons dated 8th October, 2020 fails in its entirety and is dismissed
- 2.Eviction of the Plaintiffs and all persons on the suit land within ninety (90) days from the date of delivery of the judgment pursuant to Section 152E of the Land Act, No. 6 of 2012
- 3.Costs of the suit awarded to the Defendant to be borne by the Plaintiff
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwabungare v Mohamed & another (Enviromental and Land Originating Summons 178 of 2020) [2025] KEELC 1057 (KLR)", Case Analysis (2025). ELC Case No. 178 of 2020 (Originating Summons dated 8th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1057/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.