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ELCPartially AllowedEnvironment & Land Case 16 of 2018· [2025] KEELC 4010 (KLR)

Nasiuma v Kakai (Environment & Land Case 16 of 2018) [2025] KEELC 4010 (KLR)

Environment and Land Court
19 May 2025
2,274 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff, Protus Mandila Nasiuma, filed an Originating Summons dated 23/04/2018 seeking declarations of adverse possession over land parcel Ndivisi/Muchi/3250. He claimed his late father purchased a 50ft by 100ft portion in 1990, on which he established a homestead, planted trees, and buried his father in 2001, remaining in open, peaceful and continuous occupation for over 12 years. The defendant, registered as proprietor on 20/09/2013 and having acquired the land from her father, denied the claim, asserted she discovered the occupation only in 2016, alleged a 2018 agreement to vacate, and filed a counter-claim for eviction, permanent injunction, general damages, costs and interest. The plaintiff testified as sole witness; the defendant called two witnesses. The court framed three issues: proof of adverse possession, appropriate orders, and costs. Applying the Karnataka Board of Wakf principles as adopted in Raphael Kahindi Kawala, and Sections 7, 13 and 38 of the Limitation of Actions Act, the court found the occupation proved and uncontroverted, computed a period of about 26 years exceeding the statutory 12 years, and held the plaintiff had met the ingredients of adverse possession. The 2018/2023 agreements marked for identification were disregarded for lack of probative value. The originating summons was allowed with declarations that the plaintiff is entitled to the land, the defendant held it in trust, and her interest was extinct, with a transfer order (executive officer to execute in default). The counter-claim was dismissed, and costs awarded to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved adverse possession of land parcel Ndivisi/Muchi/3250

Holding

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

Reasoning

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.

p. 5
02

Whether the agreement dated 15/06/2023 could be relied upon

Holding

No - having only been marked for identification and not formally produced, it carried no probative evidential value

Reasoning

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.

p. 5
03

Whether the defendant's counter-claim should succeed

Holding

No - the counter-claim dated 15/06/2023 was dismissed with costs as the originating summons was merited

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.A declaration that upon expiry of 12 years, the defendant held land parcel no. Ndivisi/Muchi/3250 in trust for the plaintiff
  3. 3.A declaration that upon the expiry of 12 years, the defendant's interest in the said land parcel got extinct
  4. 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. 5.Costs of the originating summons and the counter-claim to be borne by the defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSections 7, 13
  • Limitation of Actions ActSections 23, 24, 25
  • Evidence ActSections 109, 112

Cases cited (6)

  • Karnataka Board of Wakf vs. Government of India & Others
    (2004) 10 SCC 779
  • Raphael Kahindi Kawala v Mount Elgon Beach Properties Limited
    [2018] eKLR
  • Mweu v. Kiu Ranching & Farming Co-operative Society Ltd.
    [1985] KLR 430
  • Cheremoi v Muigai
    (ELC Case No. E005 OF 2023) [2024] KEELC 5604 (KLR)(25 July 2024)(Judgment)
  • Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 Others
    (2018) eKLR
  • Celina Muthoni Kithinji v. Safiya Binti Swaleh & 8 Others
    (2018) eKLR
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22); Environment and Land Court jurisdiction over adverse possession claims

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, "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.