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ELCAllowedOriginating Summons dated 19th December, 2022 (filed 20th December, 2022)· [2025] KEELC 5178 (KLR)

Idha & 19 others v Rahami (Civil Suit 146 of 2022) [2025] KEELC 5178 (KLR)

Environment and Land Court of Kenya
4 July 2025
5,453 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Twenty Mombasa families won ownership of land they had openly occupied for decades, proving that long, peaceful occupation can defeat a registered title in Kenya.

What this practically means

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Executive summary

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This was an undefended Originating Summons dated 19th December, 2022, filed on 20th December, 2022 by twenty plaintiffs led by Fat-Hia Ryce Idha against Ahmad Rahami under Sections 37 and 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, 2010, seeking registration as proprietors in common of Land Title No. CR.32208, Sub-division No. 10948/I/MN (Original Number 3/2 Section I Mainland North), Mombasa, by adverse possession, plus a permanent injunction against eviction or demolition. The Defendant was served by substituted means through an advertisement in The Standard newspaper but did not enter appearance or file any pleadings, so the suit proceeded to formal proof before the Environment and Land Court at Mombasa. Two witnesses testified. PW1, born on the land in 1965, and PW2, resident there since 1985, gave evidence of continuous, peaceful and uninterrupted occupation without payment to anyone and without ever meeting the registered owner. The court framed three issues: whether adverse possession was established, entitlement to the prayers, and costs. It held that even in uncontested formal proof, the plaintiffs bore the burden of proof on a balance of probabilities, applying Kirugi v Kabiya and related authorities. Applying the statutory framework in Sections 7, 13 and 38 of the Limitation of Actions Act and the elements distilled in Kimani Ruchure, Gabriel Mbui and Mbira v Gachuhi, the court found possession of 57 and 37 years respectively, well beyond the 12-year period, uninterrupted and adverse to the registered owner. The suit was allowed in its entirety with costs to the plaintiffs.

Key legal issues

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01

Whether the Plaintiffs proved title by adverse possession

Holding

Yes - the Plaintiffs were in actual, open, continuous and uninterrupted possession of the suit land for far more than 12 years (from 1965 and 1985 respectively to filing in 2022), without the Defendant's interference, entitling them to be registered as proprietors in common

Reasoning

The court set out the statutory framework under Sections 7, 13 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, and the elements of adverse possession from Kimani Ruchure, Gabriel Mbui and Mbira v Gachuhi: non-permissive, actual, open, exclusive and continuous occupation for 12 years. PW1 was born on the land in 1965 and PW2 resided there from 1985; both testified to uninterrupted, peaceful occupation without paying anyone. The suit was filed in 2022, giving 57 and 37 years respectively, well beyond the 12-year period. The Defendant never asserted his rights nor interrupted the occupation, so the claim succeeded.

p. 10
02

Whether the Plaintiffs were entitled to the prayers sought

Holding

Yes - having proved adequate possession in continuity, publicity and adversity to the registered owner, the Plaintiffs were entitled to registration as proprietors in common and to a permanent injunction

Reasoning

The court found the Plaintiffs had discharged the burden of proof notwithstanding the undefended status of the suit, holding that an uncontroverted claim still must be proved. Possession was adequate in continuity, in publicity and adverse to the registered owner, so the prayers for registration in place of the Defendant and a permanent injunction against entry, demolition or eviction were granted.

p. 10
03

Who bears the costs of the suit

Holding

The Plaintiffs, as the successful parties, were awarded the costs of the Originating Summons

Reasoning

Applying Section 27(1) of the Civil Procedure Act and Morgan Air Cargo Limited v Evrest Enterprises Limited, the court held costs follow the event subject to the court's discretion. As the Plaintiffs succeeded in their entirety, the costs of the Originating Summons were awarded to them.

p. 11
04

Burden of proof in an undefended suit heard by formal proof

Holding

Even in a formal proof hearing, the plaintiff must prove the case on a balance of probabilities; the Defendant's non-attendance does not absolve the plaintiff of that duty

Reasoning

Relying on Kirugi v Kabiya, Gichinga Kibutha v Caroline Nduku, Samson S. Maitai v African Safari Club and Rosaline Mary Kahumbu v National Bank of Kenya, and Section 107 of the Evidence Act, the court held that although the Plaintiffs' evidence stood unchallenged and uncontroverted since the Defendant adduced no evidence, the Plaintiffs still had to satisfy the burden and standard of proof imposed by law before their claim could succeed.

p. 6

Legal principles established

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  • The burden of proving a case on a balance of probabilities rests on the plaintiff even where the suit proceeds as formal proof uncontested
  • Adverse possession requires non-permissive physical control over land, actual, open, exclusive and continuous for the statutory period of 12 years to the exclusion of the registered owner
  • Adverse possession is an overriding interest that runs with the land irrespective of change in proprietorship
  • Time under the Limitation of Actions Act ceases to run when the owner takes or asserts his rights or when the owner's right is admitted
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, subject to the court's discretion

Court orders

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  1. 1.That the suit by the Plaintiffs/Applicants as per the originating summons dated 19th December, 2022 filed on 20th December, 2022 succeeds in its entirety and is allowed with costs
  2. 2.That the Plaintiffs be registered as the proprietor in common of the property known as Land Title No. Cr.32208, Sub-division No. 10948/I/MN (Original Number 3/2 Section I Mainland North) Mombasa District in the place of the Defendant
  3. 3.That the Defendant, its agents, servants and/or any other authorized independent contractor be restrained by permanent injunction from entering the suit land, demolishing the Plaintiffs' houses and/or properties or evicting the Plaintiffs, their families and/or tenants
  4. 4.That the Plaintiffs shall have the costs of the Originating Summons dated 19th December, 2022 filed on December 20, 2022
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act and Sections 37 and 38 of the Limitation of Actions Act, Cap. 22, under Order 37 Rule 7 of the Civil Procedure Rules, 2010

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, "Idha & 19 others v Rahami (Civil Suit 146 of 2022) [2025] KEELC 5178 (KLR)", Case Analysis (2025). Originating Summons dated 19th December, 2022 (filed 20th December, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5178/eng@2025-07-04

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