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ELCDismissedNot stated in the judgment provided· [2025] KEELC 5797 (KLR)

Ismael v Mandera County Government (Environment and Land Case E006 of 2024) [2025] KEELC 5797 (KLR)

Environment and Land Court
31 July 2025
JMJ. M. Mutungi
2,122 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner can sue a county government over occupation of titled land no matter how long ago it began, because ongoing trespass starts a fresh legal claim every day.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Garissa disposed of a Notice of Motion dated 23rd February 2025 by the Defendant (a county government, acting through its County Attorney, Hussein Adam Somo), seeking striking out of the Plaintiff's Plaint dated 11th March 2024 and dismissal of the suit as time-barred. The Defendant asserted that Mandera Vocational Training Centre (formerly Mandera Youth Polytechnic) was constructed and registered on LR no. 13139/656 in 1985, that fraud claims lapse after three years under Section 4(2) of the Limitation of Actions Act, and that any claim to recover land lapses after twelve years under Section 7. The Plaintiff countered that the Defendant's occupation was uncompensated and continuing, constituting a fresh trespass each day, so limitation had no application. The application was canvassed by written submissions. The court identified the primary issue as whether the suit was statute-barred. It found it undisputed that the Plaintiff is the registered proprietor, that the Defendant took possession in the 1980s without compensation, and that the Defendant remains in occupation operating the vocational centre. This amounted to continuing trespass, generating a fresh cause of action daily, applying Muthiora, Gachiri, Koskey and Nguruman. Section 4(2) was inapplicable, and Section 7 was inapplicable because the Plaintiff holds title and seeks to assert ownership. The Notice of Motion was dismissed with costs to the Plaintiff, leaving the substantive suit to proceed.

Key legal issues

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01

Whether the suit was time-barred under Sections 4(2) and 7 of the Limitation of Actions Act

Holding

Section 4(2) is inapplicable because the claim is founded on continuing trespass, which generates a fresh cause of action daily; Section 7 is inapplicable because the Plaintiff holds title and seeks to assert ownership of the suit property

Reasoning

The court found it undisputed that the Defendant occupied the land from the 1980s without compensation and continues to operate the vocational training centre there. Such occupation, unauthorised by the registered proprietor, constitutes continuing trespass. Authorities establish that each continuance of a trespass is a fresh trespass creating a new cause of action daily. Since the Plaintiff holds a certificate of title and seeks to assert ownership, Section 7 does not extinguish his right. The application therefore failed.

p. 4

Legal principles established

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  • A continuing trespass gives rise to a fresh cause of action from day to day for as long as the unlawful occupation continues, so limitation periods do not bar the claim

Court orders

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  1. 1.The Defendant's Notice of Motion dated 23rd February 2025 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22Section 4(2)
  • Limitation of Actions Act, Cap 22Section 7
  • Trespass Act, Cap 294definition of trespass

Cases cited (9)

  • George Ouma Odinga v Republic & Another
    (2023) KECA 1592 (KLR)
  • James Nyika v Charles Nyakundi & 2 Others
    (2004) KEHC 319 (KLR)
  • Bosire Ongero v Royal Media Services
    (2015) eKLR
  • Muthiora v Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara – Deceased)
    (Civil Appeal 43 of 2017) [2022] KECA 28 (KLR)
  • The County Government of Laikipia v James Kimani Mburu & 3 Others
    (2020) KEELC 2091 (KLR)
  • Silvester K. Kaitany v Nyayo Tea Zones Development Corporation & Another; National Land Commission & Another (Interested Parties)
    (2020) KEELC 529 (KLR)
  • Eliud Njoroge Gachiri v Stephen Kamau Ng’ang’a
    (2018) eKLR
  • Gladys Koskey v Benjamin Mutai
    [2017] eKLR
  • Nguruman Limited v Shompole Group Ranch & 3 Others
    Civil Appeal No 73 of 2004, reported in 2007 KLR
Jurisdiction invoked
Not expressly stated; the Court determined a Notice of Motion within its original civil jurisdiction over a land dispute

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, "Ismael v Mandera County Government (Environment and Land Case E006 of 2024) [2025] KEELC 5797 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5797/eng@2025-07-31

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