Kalema v Memusi & another (Enviromental and Land Originating Summons 441 of 2017) [2025] KEELC 5311 (KLR)
The bottom line
#A Kenyan court ruled that a man who openly occupied land for over 12 years legally owns it, even after it was sold.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved adverse possession over Transmara/Moita/218
Yes. Time ran from first registration of David Tumbesi Dikir on 10th December 1997; by the filing of suit in June 2014, more than 16 years of open, peaceful and exclusive possession had elapsed
The Plaintiff testified he entered in 1966, built a homestead, cultivated and grazed livestock, corroborated by PW2–PW4, photographs and a 2004 joint inspection report. Occupation became adverse to the registered proprietor upon registration in 1997, and no step was ever taken to dispossess him. The statutory threshold of 12 years under sections 7, 13, 17 and 38 of the Limitation of Actions Act was met.
Whether the Plaintiff's occupation was permissive/licensed
No. The Court accepted that the 'licensee' designation in the caution was unilaterally applied by the Land Registrar, and no evidence of any licence, tenancy or agreement was produced
The Defendants' assertion of permission rested on an alleged admission before the area chief, who was never called as a witness, attracting a negative inference under Section 119 of the Evidence Act. Their case was closed on affidavits alone with no independent witnesses. Acts done under licence do not amount to adverse possession, but the Defendants failed to demonstrate any permission.
Whether the 2013 transfer to the 2nd Defendant interrupted or extinguished the accrued adverse possession claim
No. By the date of transfer the Plaintiff had been in continuous adverse possession for over 15 years, and the 2nd Defendant took no steps to assert ownership or evict him
Relying on Paul Kamande Gicheha v Jacob Kinyua Kiragu, a change of ownership does not stop time running under adverse possession. No demand notice, court proceedings or physical re-entry followed the transfer, so the Plaintiff's matured claim remained intact against the 2nd Defendant as successor in title.
Legal principles established
#- A person claiming adverse possession must prove non-permissive, actual, open, notorious, exclusive and uninterrupted occupation for 12 years (nec vi nec clam nec precario)
- A mere change of ownership of land occupied by a person in adverse possession does not stop time from running or interrupt the possession
- Possession under licence or permission of the owner does not found adverse possession; failure to call a witness whose evidence is available attracts a negative inference under Section 119 of the Evidence Act
Court orders
#- 1.A declaration that the Plaintiff, Ole Santiya Kalema, has been in open, continuous, and exclusive possession of LR No. Transmara/Moita/218 (16.51 hectares) for a period exceeding twelve years
- 2.A declaration that the title held by the Defendants over the suit land has been extinguished by operation of law under the doctrine of adverse possession
- 3.A declaration that the 2nd Defendant holds the suit property in trust for the Plaintiff, who is entitled to be registered as proprietor
- 4.The Land Registrar, Narok County, directed to register the Plaintiff as absolute proprietor of LR No. Transmara/Moita/218 in place of the 2nd Defendant
- 5.The 2nd Defendant ordered to execute all necessary instruments of transfer within sixty (60) days, failing which the Deputy Registrar of the Court shall execute the same on their behalf
- 6.A permanent injunction restraining the Defendants, their agents, servants, or assigns from entering, interfering with, or dealing with the suit land
- 7.The Defendants to bear the costs of the suit
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act, Cap 22, Laws of Kenya (originating summons for declaration of adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalema v Memusi & another (Enviromental and Land Originating Summons 441 of 2017) [2025] KEELC 5311 (KLR)", Case Analysis (2025). Not stated in the judgment (Originating Summons dated 20th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5311/eng@2025-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.