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ELCAllowedNot stated in the judgment (Originating Summons dated 20th June 2014)· [2025] KEELC 5311 (KLR)

Kalema v Memusi & another (Enviromental and Land Originating Summons 441 of 2017) [2025] KEELC 5311 (KLR)

Environment and Land Court
14 July 2025
2,361 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, Ole Santiya Kalema, filed an originating summons dated 20th June 2014 under Section 38 of the Limitation of Actions Act seeking a declaration that he had acquired title to land parcel Transmara/Moita/218 (16.51 hectares) by adverse possession. The land was first registered in 1997 to David Tumbesi Dikir and transferred in November 2013 to the 2nd Defendant, Shantilal K. Shah & Co. Ltd. The Plaintiff testified he entered the land in 1966, built a homestead and occupied it continuously, corroborated by three witnesses, photographs and a 2004 joint inspection report. The Defendants, through replying affidavits only and without calling witnesses (including the area chief allegedly present at an alleged admission), contended the Plaintiff entered in 2010 during inter-clan clashes and was a licensee, as reflected in a caution he lodged. The Court framed five issues and held that time ran from first registration in December 1997; that the Plaintiff's possession was open, peaceful and non-permissive, the 'licensee' description having been unilaterally inserted by the Land Registrar; and that the Defendants' failure to call the area chief attracted a negative inference under Section 119 of the Evidence Act. The 2013 transfer did not interrupt the matured claim, no steps having been taken to evict the Plaintiff. Judgment was entered for the Plaintiff: declarations of adverse possession and extinguishment of the Defendants' title, a declaration of trust in favour of the Plaintiff, an order for his registration as absolute proprietor, a 60-day window for execution of transfer instruments (failing which the Deputy Registrar to execute), a permanent injunction against the Defendants, and costs to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff proved adverse possession over Transmara/Moita/218

Holding

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

Reasoning

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.

p. 3
02

Whether the Plaintiff's occupation was permissive/licensed

Holding

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

Reasoning

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.

p. 4
03

Whether the 2013 transfer to the 2nd Defendant interrupted or extinguished the accrued adverse possession claim

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 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. 6.A permanent injunction restraining the Defendants, their agents, servants, or assigns from entering, interfering with, or dealing with the suit land
  7. 7.The Defendants to bear the costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 38(1) and (2)
  • Land Registration ActSection 28(h)
  • Civil Procedure ActSection 27
  • Evidence ActSection 119

Cases cited (7)

  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Chevron (K) Limited v Harrison Charo Wa Shutu
    [2016] eKLR
  • Littledale v Liverpool College
    [1900] 1 Ch.19
  • Cheromei v Muigai
    (Environment & Land Case E005 of 2023) [2024] KEELC 5604 (KLR)
  • Gabriel Mbui vs Mukindia Maranya
    (1993) eKLR
  • Paul Kamande Gicheha Vs Jacob Kinyua Kiragu
    [2018] eKLR
  • Mombasa Teachers Cooperative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others
    [2018] eKLR
Jurisdiction invoked
Section 38 of the Limitation of Actions Act, Cap 22, Laws of Kenya (originating summons for declaration of adverse possession)

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, "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.