Ndakula v Nakhanga alias Nakhwanga (Enviromental and Land Originating Summons 40 of 2020) [2025] KEELC 2959 (KLR)
The bottom line
#A Busia court ruled that someone who openly occupies land for over 12 years can claim ownership, even against a registered title holder.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved acquisition of the suit land by adverse possession
Yes - she and her family were in open, peaceful and uninterrupted occupation for over twelve years before 1973, so her entitlement was established over a ¼ acre portion
The court accepted uncontroverted evidence that the Plaintiff's family lived on the land as of right, burying her father there without objection. Her occupation predated the Defendant's 1994 registration, so the title was subject to overriding interests. Permissive occupation from 2016 could not defeat a claim already accrued. Time could not run during the disputed period after 2007, but twelve years had already elapsed before she left for her matrimonial home.
Whether occupation under licence or permissive occupation interrupts adverse possession
Occupation with the owner's consent cannot count towards adverse possession from the time permission was given
The Defendant alleged he permitted the Plaintiff to build a house in 2016 at his late father's request. The court held that if such permission was given, occupation from 2016 was consensual and could not be adverse. However, the father had no interest in the land and the court rejected the licence narrative, finding the family had always occupied as of right.
Legal principles established
#- The combined effect of Sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the title of the registered proprietor in favour of the adverse possessor at the expiry of twelve years of adverse possession
- A purchaser of land who does not ascertain who is in possession risks his title, which remains subject to the overriding interests of the person in possession
- Occupation permitted by the owner is non-permissive only if without consent; permissive occupation cannot found adverse possession
Court orders
#- 1.The Plaintiff has acquired ownership of a portion measuring ¼ acre out of land parcel No Samia/Budongo/632 by way of adverse possession and the Defendant's title thereto has been extinguished by operation of the law
- 2.The Defendant shall within 45 days of the delivery of the judgment surrender to the Land Registrar Busia the original title to the suit land for cancellation and execute all necessary documents to facilitate sub-division and registration of ¼ acre into the names of the Plaintiff and the remainder in the names of the Defendant
- 3.Parties shall meet their own costs of the sub-division and registration
- 4.In default, the Land Registrar Busia shall proceed to cancel the register to the suit land notwithstanding the absence of the original title deed and the Deputy Registrar of the Court shall execute all relevant documents on behalf of the Defendant
- 5.The Defendant shall meet the Plaintiff's costs of the suit
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act - application to the High Court for an order that the claimant be registered as proprietor of land by adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndakula v Nakhanga alias Nakhwanga (Enviromental and Land Originating Summons 40 of 2020) [2025] KEELC 2959 (KLR)", Case Analysis (2025). Originating Summons dated 28th August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2959/eng@2025-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.