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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 4488 (KLR)

Khaminwa (Suing as the Lawfully Appointed Administrator of the Estate of Charles Ford Khaminwa & another v Mulama & 6 others (Environment and Land Case E041 of 2022) [2025] KEELC 4488 (KLR)

Environment and Land Court
16 June 2025
2,783 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that relatives living on family land for decades could not claim ownership because an incomplete land exchange and family ties blocked their adverse possession claim.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of Charles Ford Khaminwa (deceased), sued the Defendants for trespass on land parcel Isukha/Shitochi/9X2, seeking a declaration of ownership, permanent and mandatory injunctions, removal of structures, and costs. The Defendants denied trespass, asserted occupation under a 1974/1976 land exchange with one Andrew Isutsa Isabwa, and counterclaimed for a declaration of adverse possession, extinction of the Plaintiffs' title and transfer of the property to them. The court found no dispute that the deceased was registered proprietor since 27 May 1982 and that the Defendants had occupied since the 1990s. It held that possession alone does not constitute adverse possession: the Defendants entered under an exchange transaction that never completed, as the register showed their own parcel Kakamega/Shitochi/1XX6 still registered to Mulama Milimu and the Land Control Board deferred the deceased's transfer application, meaning the parties remained at the contractual stage and time could not run. Further, relying on Samuel Kihamba v Mary Mbaisi, adverse possession does not apply within families against close relatives, the Defendants being related to the deceased. The court held the estate protected by Article 40 of the Constitution and Section 24 of the Land Registration Act, and that the Plaintiffs as personal representatives had a duty to preserve the estate by obtaining vacant possession. The Plaintiffs' suit succeeded in substance but costs were not awarded as prayed; the counterclaim was dismissed.

Key legal issues

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01

Whether the Defendants acquired title by adverse possession

Holding

Adverse possession was not established; the Defendants' occupation since the 1990s was referable to an incomplete exchange transaction and they are close relatives of the deceased

Reasoning

The court held the alleged exchange transaction never completed: the Defendants' parcel Kakamega/Shitochi/1XX6 remains registered in Mulama Milimu's name and the deceased remained registered proprietor of the suit property since 1982. While parties remain at the contractual stage, time cannot run for adverse possession. Additionally, occupation pursuant to an incomplete sale/exchange is not adverse, and following Samuel Kihamba v Mary Mbaisi, the doctrine does not apply within families against close relatives.

p. 5
02

Whether the Plaintiffs, as personal representatives, are entitled to vacant possession

Holding

Yes; the estate is protected by Article 40 of the Constitution and Section 24 of the Land Registration Act, and the Plaintiffs have a duty to preserve the estate property

Reasoning

The deceased was the undisputed registered proprietor since 27 May 1982. Registration vests absolute ownership under Section 24 of the Land Registration Act and the right to property is protected under Article 40. As administrators, the Plaintiffs have a duty to preserve the estate and are entitled to vacant possession from the Defendants who admitted occupation. Nothing was proved that the Fifth Defendant died.

p. 6

Legal principles established

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  • Possession alone, however prolonged, does not amount to adverse possession; possession must be hostile and without the proprietor's permission.
  • Where parties remain at the contractual stage of a transaction, time does not run in favour of adverse possession.
  • Adverse possession does not apply within families against close relatives.

Court orders

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  1. 1.The Defendants' counterclaim is dismissed
  2. 2.A declaration that the estate of Charles Ford Khaminwa (deceased) is the legal and beneficial owner of Isukha/Shitochi/9X2 situated in Sigalagala, Kakamega County
  3. 3.A mandatory injunction requiring the Defendants to remove all illegal structures, crops, cattle and buildings from Isukha/Shitochi/9X2 and vacate and deliver vacant possession to the Plaintiffs within 90 days
  4. 4.The Defendants to bear the cost of removal of any illegal structures on Isukha/Shitochi/9X2
  5. 5.A permanent injunction restraining the Defendants from trespassing upon, occupying, accessing or in any manner interfering with the estate's ownership, possession and use of Isukha/Shitochi/9X2
  6. 6.The Officer Commanding Station, Khayega to ensure law and order is maintained during enforcement of the orders
  7. 7.Each party to bear own costs of the suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel Isukha/Shitochi/9X2 in Kakamega County

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, "Khaminwa (Suing as the Lawfully Appointed Administrator of the Estate of Charles Ford Khaminwa & another v Mulama & 6 others (Environment and Land Case E041 of 2022) [2025] KEELC 4488 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4488/eng@2025-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.