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ELCDismissedOriginating Summons dated July 20, 2022 (Malindi)· [2025] KEELC 5023 (KLR)

Ngala & 31 others v Estate of Abdulla Mohamed Khalfan & others (Enviromental and Land Originating Summons E020 of 2022) [2025] KEELC 5023 (KLR)

Environment and Land Court
2 July 2025
EME. K. Makori
1,942 words in judgment
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The bottom line

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A Malindi court dismissed a 13-family claim to land through adverse possession, ruling they failed to prove 12 years of open, peaceful, continuous occupation, and declared them trespassers.

What this practically means

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Executive summary

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The applicants, led by Chengo Ngala, filed an Originating Summons dated July 20, 2022 seeking declarations of title to Portion No. 207 through adverse possession, supported by affidavits and witness testimony from four witnesses who claimed occupation since the 1940s, burial of relatives on the land, and eviction in 2021 following harassment and arson attributed to the 9th respondent, Yusuf Majid Said. The 9th respondent, administrator and beneficiary under Malindi Kadhi Succession Petition No. 40 of 2018, filed a replying affidavit and counterclaim. He proved title by official search, asserted the applicants were trespassers, recounted that the 1st applicant was permitted in 2014 to harvest crops and vacate by September 30, 2014, and that in 2021 over 100 people invaded the land, building temporary structures that were dismantled pursuant to Kadhi's Court directives. After reviewing the evidence, E. K. Makori J held that the photographic evidence showed only recently built temporary structures incapable of proving occupation from the 1940s, the applicants could not identify the exact parcel claimed, and occupation was neither continuous nor peaceful given the succession and criminal proceedings. Applying Gabriel Mbui, Mtana Lewa, Kimani Ruchure and related authorities, the court found the applicants failed to prove open, actual, continuous, uninterrupted, peaceful and exclusive possession for twelve years nec vi, nec clam, nec precario. The claim in the OS was dismissed with costs, and the counterclaim was allowed as entirely successful, the applicants being adjudged trespassers. Judgment was delivered virtually in Malindi on July 2, 2025.

Key legal issues

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01

Whether the applicants acquired title by adverse possession

Holding

No; the claim failed for want of proof of continuous, open, exclusive and peaceful occupation for twelve years

Reasoning

The applicants testified to occupation since the 1940s, but photographic evidence showed only recently built temporary structures, they could not identify the exact land claimed (Portion 207 or 209), some applicants may not exist, and occupation was interrupted by the Kadhi's succession proceedings, criminal cases and the 2021 invasion. The court concluded the applicants did not prove possession nec vi, nec clam, nec precario for the statutory period.

p. 4
02

Whether the 9th respondent's counterclaim succeeds

Holding

Yes; the applicants were held to be trespassers and the counterclaim was entirely successful

Reasoning

The 9th respondent proved title through an official search of Portion No. 207 and the distribution in Malindi Kadhi Succession Petition No. 40 of 2018, and showed the applicants' entry was recent and forcible, dismantled structures following Kadhi's Court directives, and prior notices to vacate issued to the 1st applicant in 2014 and 2015.

p. 4

Legal principles established

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  • Adverse possession requires non-permissive physical control over land coupled with intention, to the exclusion of all others including the true owner
  • The possessor must establish use of the land as of right - nec vi, nec clam, nec precario - for the statutory period of twelve years

Court orders

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  1. 1.The applicants' claim in the Originating Summons is dismissed with costs
  2. 2.The 9th respondent's counterclaim is upheld as entirely successful, with costs to the 9th respondent

Authorities

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Legislation

  • Limitation of Actions Act (implied through the twelve-year period)statutory period of twelve years

Cases cited (5)

  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Cheromei v Muigai
    (Environment & Land Case E005 of 2023) [2024] KEELC 5604 (KLR) (25 July 2024)
  • Mtana Lewa vs Kahindi Ngala Mwangandi
    (2015) eKLR
  • Rose Akello Otieno v Joseph Odote & another
    [2022] eKLR
  • Kimani Ruchure vs Swift Rutherfords & Co. Ltd
    (1980) KLR 10
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act (court seized of a claim for adverse possession over land); reference also made to Malindi Kadhi Succession Petition No. 40 of 2018

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, "Ngala & 31 others v Estate of Abdulla Mohamed Khalfan & others (Enviromental and Land Originating Summons E020 of 2022) [2025] KEELC 5023 (KLR)", Case Analysis (2025). Originating Summons dated July 20, 2022 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5023/eng@2025-07-02

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