Chogo & 6 others v Torun & 7 others (Miscellaneous Civil Application 134 of 2013) [2025] KEELC 4836 (KLR)
The bottom line
#A Mombasa court stripped a foundation's title to 84 acres in Mombasa and handed ownership to a family that had occupied the land openly for decades.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established title by adverse possession
Yes. The court found the Plaintiffs had been in actual open, continuous and uninterrupted possession of the suit land for more than the 12-year statutory period, satisfying the elements of adverse possession (nec vi, nec clam, nec precario, with animus possidendi), and that no effective assertion of the owner's rights interrupted time.
The court traced the statutory framework under Sections 7, 13 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules. It relied on the oral evidence of the Plaintiffs' witnesses, admissions by DW-1 that the Moli Chogo family lived on the land since at least 1982, the site visit observations, and the unchallenged position that the 6th Defendant never took possession or asserted his rights. Time was not interrupted by the subsequent lease and sale, and the court found the claim proved on a balance of probabilities.
Whether subsequent transfer and lease extinguished the accrued adverse possession rights
No. Rights of adverse possession already accrued ran with the land as an overriding interest and passed to successors in title.
Relying on James Obande Wasui v Jeremiah Ochwada Musumba and Section 28 of the Land Registration Act, the court held that at the time of the transfer to the 7th Defendant and lease to the 5th Defendant, the land was already subject to accrued rights of adverse possession in favour of the Plaintiffs, which were overriding interests not noted on the register and which bound the transferees.
Whether the Plaintiffs were entitled to the prayers sought
Yes. The court found the Plaintiffs proved entitlement to ownership of the whole suit property by adverse possession and allowed the prayers, though it urged consideration of a fresh lease and mediation with the University.
The court found adequate possession in continuity, publicity and in adversity to the registered owner. It declared the 7th Defendant's title extinguished and directed registration of the Plaintiffs as joint proprietors. It nonetheless encouraged the parties, invoking Article 159(2)(c), AJS and Court Annexed Mediation, to consider an amicable settlement allowing the university project to continue under a new lease, leaving that at the Plaintiffs' liberty.
Costs
Costs follow the event; the successful Plaintiffs were awarded costs against all Defendants jointly and severally.
Applying Section 27(1) of the Civil Procedure Act and the principle that costs follow the event unless the court for good reason otherwise orders, and noting the Plaintiffs had established their case as prayed, the court exercised its discretion in their favour for the costs of the Originating Summons.
Legal principles established
#- Adverse possession in Kenya is established by actual, open and continuous occupation to the exclusion of the registered owner for 12 years, under Sections 7, 13 and 38 of the Limitation of Actions Act.
- Adverse possession runs with the land notwithstanding a change of proprietorship, being an overriding interest under Section 28 of the Land Registration Act.
- A plaintiff claiming adverse possession must prove the required elements on a balance of probabilities even where the suit is undefended.
Court orders
#- 1.The suit by the Plaintiffs/Applicants succeeds in its entirety and is allowed with costs
- 2.Declaration that the Certificate of Title to the suit property known as MN/I/5141 CR 29112 registered in the names of the 7th Defendant stands extinguished by virtue of the Doctrine of Land Adverse Possession
- 3.Order that the Plaintiffs/Applicants be registered as the joint proprietors of the suit property MN/I/5141 CR 29112 by virtue of the Doctrine of Land Adverse Possession
- 4.Order directing the Land Registrar to forthwith cancel and/or revoke the Certificate of Title Deed issued to the 7th Defendant and rectify the Register in respect of the suit property
- 5.Plaintiffs and the 5th Defendant granted 90 days to consider entering into an amicable out-of-court solution through AJS/Court Annexed Mediation for finalizing the establishment of the Muslim University
- 6.Costs of the Originating Summons awarded to the Plaintiffs/Applicants, to be borne by the Defendants/Respondents jointly and severally
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act, No. 19 of 2011; Section 38 of the Limitation of Actions Act, Cap. 22; Order 37 Rule 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chogo & 6 others v Torun & 7 others (Miscellaneous Civil Application 134 of 2013) [2025] KEELC 4836 (KLR)", Case Analysis (2025). ELC No. 134 of 2013 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4836/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.