Shadrack Menza Gona t/a Jesus Healing And Miracle Ministries International v Kitua (Enviromental and Land Originating Summons E013 of 2022) [2025] KEELC 4025 (KLR)
The bottom line
#A Kenyan church's adverse possession claim failed because it sued in the wrong name and stopped paying rent without the licence being terminated.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant's suit is competent.
- 2.Whether the applicant's claim met the threshold of adverse possession.
- 3.What appropriate orders should be granted, including an order as to costs?
Key legal issues
#Competence of the suit by a society described through a 'founder' trading as the society
The suit was incompetent; a society is an unincorporated entity without legal personality and must sue through its officials or trustees
The church is registered under the Societies Act, whose officials (chair, treasurer, secretary) are known and changeable under Sections 9 and 17. Describing the applicant as 'Shadrack Menza Gona T/A Jesus Healing and Miracle Ministries International' does not show Shadrack is a recognised official, and a society of more than ten persons cannot be 'traded as' by one person. Being unincorporated, it lacks capacity to sue in this manner, a defect not curable by Article 159.
Whether adverse possession accrued where entry was under a licence and rent simply fell into arrears
No; entry was permissive, the licence was never terminated, and time cannot run in favour of a licensee
The applicant entered with the respondent's permission and paid rent through her agents until 2010. Non-payment of rent alone does not convert permissive possession into adverse possession; the licence had to be revoked first. The applicant also failed the tests of dispossession of the owner, inconsistency of its occupation with the owner's enjoyment (construction having been affirmed by the respondent), and animus possidendi.
Appropriate orders including costs
The originating summons was dismissed with costs to the applicant
Having found the suit incompetent and the claim unproven, the court dismissed the OS. Applying the principle that costs follow the event, and as the suit was unopposed, the applicant was ordered to bear its own costs.
Legal principles established
#- Registered societies do not have legal personality to sue in their own names; suits must be instituted through their officials or trustees
- Lack of capacity to sue goes to the root of the validity of proceedings and is not curable by Article 159 of the Constitution
- Time for adverse possession cannot run in favour of a licensee; the licence must first be determined
- The proper test of adverse possession is whether the registered owner has been dispossessed or discontinued possession for the statutory period
- The adverse possessor bears the burden of strictly proving all elements of adverse possession even in an undefended suit
Court orders
#- 1.The applicant's suit against the respondent is hereby dismissed with the applicant bearing its costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under Sections 7, 13 and 38 of the Limitation of Actions Act (claim for registration as proprietor by adverse possession)
Relief refused
#Declaration that the applicant be deemed owner of the suit property in place of the respondent by adverse possession
The suit was incompetent for want of legal capacity, and in any event the applicant failed to prove the elements of adverse possession, having entered as a licensee whose licence was never terminated
Declaration that the respondent's title was extinguished
The applicant failed the tests of adverse possession including animus possidendi and dispossession of the registered owner
Costs of the suit
Costs follow the event and, the suit being unopposed, the applicant bears its own costs
Costs
Suit dismissed with the applicant bearing its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicant's suit against the respondent is hereby dismissed with the applicant bearing its costs.
a society is an unincorporated entity, and therefore, it has no legal personality to sue in the manner in which it has instituted these proceedings
Lack of capacity to sue is a weighty matter that goes to the root of the validity of these proceedings, and it is this court's considered view that it is not curable by Article 159 of the Constitution.
Time can run in favour of a tenant at will by virtue of section 12 of the Limitation of Actions Act but it cannot run in favour of a licensee, therefore a licensee has no possession
the proper way of assessing proof of adverse possession is whether or not the respondent has been dispossessed or has discontinued her possession for the statutory period
the burden is usually on the adverse possessor to strictly prove all the elements of adverse possession to the required standards, notwithstanding, as in the case herein, that the applicant's case was undefended.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shadrack Menza Gona t/a Jesus Healing And Miracle Ministries International v Kitua (Enviromental and Land Originating Summons E013 of 2022) [2025] KEELC 4025 (KLR)", Case Analysis (2025). Originating Summons dated 26/05/2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4025/eng@2025-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.