Nasiuma v Kakai (Environment & Land Case 16 of 2018) [2025] KEELC 4010 (KLR)
The bottom line
#A Bungoma court gave a man land he occupied openly for 26 years, confirming that long, uninterrupted occupation in Kenya can legally defeat a registered owner's title.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved adverse possession of land parcel Ndivisi/Muchi/3250
Yes - the plaintiff entered in 1990 under a sale agreement, occupied openly with structures and trees, buried his father there, and the defendant's title was extinguished after over 26 years of continuous occupation
The court applied the Karnataka Board of Wakf principles as approved in Raphael Kahindi Kawala. It found the plaintiff's occupation proved (the defendant conceded finding him in occupation in 2016), that occupation was non-permissive, continuous and uninterrupted, and computed a period of about 26 years, well beyond the statutory 12 years under Sections 7, 13 and 38 of the Limitation of Actions Act. The evidence was uncontroverted.
Whether the agreement dated 15/06/2023 could be relied upon
No - having only been marked for identification and not formally produced, it carried no probative evidential value
The court noted the document was never formally produced into evidence. Under the law of evidence, a document merely marked for identification cannot form the basis of a finding. The court therefore disregarded it entirely in reaching its determination.
Whether the defendant's counter-claim should succeed
No - the counter-claim dated 15/06/2023 was dismissed with costs as the originating summons was merited
Having found that the plaintiff's title by adverse possession was established and the defendant's interest extinguished, the court held the counter-claim seeking eviction, injunction and damages lacked merit and dismissed it with costs.
Legal principles established
#- A party claiming adverse possession must prove possession that is peaceful, open and continuous, actual, visible, exclusive, hostile and continued over the statutory period
- Adverse possession claims must be directed against the registered proprietor of the suit property, and the property's existence and registration must be proven
- The onus of proving adverse possession lies on the claimant even if the claim is undefended
- Documents only marked for identification but not formally produced carry no probative value
Court orders
#- 1.A declaration that the plaintiff is entitled to land parcel no. Ndivisi/Muchi/3250 measuring 0.05ha or thereabouts by virtue of adverse possession
- 2.A declaration that upon expiry of 12 years, the defendant held land parcel no. Ndivisi/Muchi/3250 in trust for the plaintiff
- 3.A declaration that upon the expiry of 12 years, the defendant's interest in the said land parcel got extinct
- 4.A declaration that the defendant do transfer land parcel no. Ndivisi/Muchi/3250 to the plaintiff and/or in default the executive officer do execute all the necessary documents to effect transfer
- 5.Costs of the originating summons and the counter-claim to be borne by the defendant
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (Cap 22); Environment and Land Court jurisdiction over adverse possession claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nasiuma v Kakai (Environment & Land Case 16 of 2018) [2025] KEELC 4010 (KLR)", Case Analysis (2025). Environment & Land Case 16 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4010/eng@2025-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.