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ELCPartially AllowedELCC No. 141 of 2020 (consolidated with ELCC No. 222 of 2019)· [2025] KEELC 4832 (KLR)

Mae & 45 others v Nyamweya & 3 others (Environment & Land Case 141 of 2020 & 222 of 2019 (Consolidated)) [2025] KEELC 4832 (KLR)

Environment and Land Court
25 June 2025
3,614 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Mombasa dismissed an adverse possession claim for lack of proof and gave the registered landowners vacant possession and an injunction.

What this practically means

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Executive summary

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Two consolidated suits concerning parcels 11286/I/MN and 11287/I/MN (original No. 274/I/MN), a 200-acre property in Mwembelegeza, Mombasa, were heard together by agreement, with the plaintiffs in ELCC No. 141 of 2020 as plaintiffs and the plaintiffs in ELCC No. 222 of 2019 as defendants. The plaintiffs in ELCC No. 141 of 2020 sought adverse possession orders, claiming occupation of over 15 years. The plaintiffs in ELCC No. 222 of 2019, the registered proprietors, sought vacant possession, a permanent injunction and damages. The defendants in the 2019 suit pleaded adverse possession themselves, alleged the suits were sub judice given earlier proceedings, and disputed the plaintiffs' claims. The court framed three issues: whether the adverse possession threshold was met, whether the registered owners were entitled to vacant possession and injunction, and costs. Applying Mbira v Gachuhi, Welimo v Sumba Barasa and Songoi v Songoi, the court held that the adverse possession claimants failed to prove open, continuous, notorious and exclusive possession for over 12 years. PW1's claim to have been born on the land was uncorroborated; the chief's letter was hearsay; and the 2016 Deputy Registrar's site visit found no squatters, with evidence placing the occupation at 2018/2019. The registered proprietors were granted vacant possession and injunction, but damages for unauthorized use were refused as that remedy presupposes a tenancy. Costs were awarded to the successful registered proprietors in both suits under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the plaintiffs in ELCC No. 141 of 2020 established adverse possession

Holding

They did not; their claim was dismissed

Reasoning

PW1 claimed to have been born on the land in 1989 but no documentary evidence corroborated this; his father was buried in Kilifi, not on the land; the corroborating chief's letter was hearsay as the village elder was never called; and the defendants' witnesses, the 2016 Deputy Registrar's site visit report and the surveyor's evidence showed the land was vacant until 2018/2019, so possession did not run for the statutory 12 years and was interrupted by the 2015 litigation.

p. 6
02

Whether the plaintiffs in ELCC No. 222 of 2019 (registered proprietors) are entitled to vacant possession and injunction

Holding

Yes; judgment entered in terms of prayers (a), (b) and (d) of the plaint

Reasoning

The registered proprietors' title was not contested. Having discredited the adverse possession claim, the court found the registered owners entitled to vacant possession and an injunction against the persons who invaded the land. The damages claim was rejected because damages for use and occupation presuppose a tenancy.

p. 6
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Costs

Holding

The successful plaintiffs in ELCC No. 222 of 2019 are awarded costs in both suits under section 27 of the Civil Procedure Act

Reasoning

Costs follow the event unless there is good reason to depart from that principle. Since the plaintiffs in ELCC No. 222 of 2019 succeeded both in their claim and in defending ELCC No. 141 of 2020, they were entitled to costs in both suits.

p. 6

Legal principles established

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  • A claimant seeking title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
  • Abandonment of possession by an owner does not by itself establish adverse possession; the claimant must take possession with animus possidendi asserting rights inconsistent with the owner's title
  • The burden of proof in civil suits lies on the party who alleges

Court orders

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  1. 1.The plaintiffs in ELCC No. 141 of 2020 failed to prove their case and their claim is dismissed with costs.
  2. 2.Judgment entered for the plaintiffs in ELCC No. 222 of 2019 against the defendants in terms of prayers (a), (b) and (d) of the plaint dated 22nd November 2019 (vacant possession, permanent injunction).

Authorities

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Legislation

  • Limitations of Actions Actsections 13 and 38
  • Civil Procedure Actsection 27

Cases cited (7)

  • Mbira –v- Gachuhi
    (2002) IEALR 137
  • Alfred Welimo -v- Mulaa Sumba Barasa
    CA No 186 of 2011
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] KECA 942 (KLR)
  • Kimani Ruchine -v- Swift, Rutherfords Co. Ltd.
    [1980] KLR 1500
  • Karnataka Board of Wakf -v- Government of India & Others
    [2004] 10 SCC 779
  • Wambugu –v- Njuguna
    (1983) KLR 173
  • Rajan Shah T/A Rajan S. Shah & Partners versus Bipin P. Shah
    [2016] KEHC 1880 (KLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (adverse possession and possession claims relating to parcels 11286/I/MN and 11287/I/MN)

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, "Mae & 45 others v Nyamweya & 3 others (Environment & Land Case 141 of 2020 & 222 of 2019 (Consolidated)) [2025] KEELC 4832 (KLR)", Case Analysis (2025). ELCC No. 141 of 2020 (consolidated with ELCC No. 222 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4832/eng@2025-06-25

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