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ELCPartially AllowedOriginating Summons dated 6th December 2023 (filed 20th December 2023)· [2025] KEELC 5852 (KLR)

Fenesi (Suing as herself and as a Representative of the Estate of Abdalla Salim Fenesi) v Kariuki & another (Enviromental and Land Originating Summons 013 of 2023) [2025] KEELC 5852 (KLR)

Environment and Land Court
28 July 2025
4,752 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an Originating Summons dated 6th December 2023 in which Riziki Abdalla Fenesi, the Plaintiff/Applicant, sought a declaration that she had acquired title to Kwale/Diani Settlement Scheme/196 (subdivided into parcels 855, 856, 857, 858 and 859) by adverse possession, rectification of the register, a permanent injunction and costs. The Defendants, Veronica Ngendo Kariuki and Thomas Kilonzo Mutemi, were served by substituted means following leave granted on 26th July 2024 but never entered appearance, and the matter proceeded to formal proof under Order 10 of the Civil Procedure Rules. The Plaintiff testified with a land surveyor and the Area Assistant Chief. Evidence established that her late father occupied the land from demarcation in 1977, was buried on it upon his death in 2001, and that she and her family had occupied, farmed and developed it openly, continuously and uninterrupted for over 47 years, corroborated by a 2006 Ministry of Lands occupation survey, a 2023 DLASO report and a February 2025 ground survey. Framing three issues - acquisition of title by adverse possession, entitlement to reliefs and costs - the court held that the non-participation of the Respondents did not displace the Plaintiff's burden of proof, but that she had discharged it. Applying Sections 7, 13, 17 and 38 of the Limitation of Actions Act (Cap 22), the court found the Respondents' registered title extinguished. Judgment was entered for the Plaintiff; she was declared rightful owner, the Land Registrar Kwale was ordered to strike out the Respondents' names and register her as sole proprietor, and a permanent injunction issued. However, execution relief (Deputy Registrar executing transfer documents) was declined pending a formal application. In its discretion, no orders as to costs were made given the Respondents' non-participation.

Key legal issues

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01

Whether the Plaintiff acquired title by adverse possession

Holding

Yes. The Applicant and her family were in open, continuous and uninterrupted occupation of the suit land since 1977, exceeding the 12-year limitation period, to the exclusion of the registered owners, whose title stood extinguished.

Reasoning

The court applied Sections 7, 13, 17 and 38 of the Limitation of Actions Act (Cap 22) and the adverse possession jurisprudence. Evidence from the Applicant, an occupation survey report of 2006, a DLASO surveyor's report of 2023, a surveyor's ground report of February 2025 and the Area Assistant Chief established occupation since demarcation in 1977, farming, permanent structures and burial of the Applicant's father on the land. No suit by the Respondents ever interrupted time, and their registration in 1992/1993 never disturbed the occupation.

p. 9
02

Whether the burden of proof is discharged on uncontroverted evidence

Holding

Yes, the uncontroverted evidence proved the claim, but the Plaintiff still had to discharge the legal burden under Sections 107, 108 and 109 of the Evidence Act despite the Respondents' non-participation.

Reasoning

Relying on Evans Nyakwana v Cleophas Bwana Ongaro, the court reiterated that the legal burden lies on the party who asserts the affirmative of the issue. The court held it had a duty to evaluate uncontroverted evidence and, having done so, found the elements of adverse possession - actual, open, exclusive, non-permissive and continuous possession for over 12 years - proved.

p. 6
03

Whether the reliefs sought were available, including registration and injunction

Holding

The declaratory, registration and permanent injunction reliefs were granted as prayed, but the execution relief (Deputy Registrar executing transfer documents) was declined pending a formal application.

Reasoning

The court found the claim proved and granted the prayers in the Originating Summons. However, an oral application made during trial to amend and include a prayer that the land registrar have the land registered in the Plaintiff's name was not granted on the spot; the court directed that the Applicant formally move the Court for that execution relief.

p. 9
04

Who bears the costs of the originating summons

Holding

Although the Applicant succeeded, no orders as to costs were made given the Respondents' non-participation.

Reasoning

The court acknowledged Section 27(1) of the Civil Procedure Act that costs follow the event, but in its discretion declined to award costs because the Respondents never entered appearance or defended the claim.

p. 9

Legal principles established

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  • An unrepresented/unparticipating defendant does not relieve a claimant of the burden and standard of proof; the court must still interrogate uncontroverted evidence.
  • A green card unchallenged constitutes cogent evidence of the current ownership status of land.
  • Title of a registered owner is extinguished after 12 years of adverse possession, entitling the adverse possessor to apply to be registered as proprietor.

Court orders

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  1. 1.Judgment entered in favour of the Plaintiff/Applicant in accordance with the Originating Summons dated 6th December 2023
  2. 2.The Applicant declared the rightful owner of the suit properties Kwale/Diani Settlement Scheme/196 subdivided into Kwale/Diani Settlement Scheme 855, 856, 857, 858 and 859 by land adverse possession
  3. 3.An order issued to the Land Registrar Kwale to strike out the name of the Respondents from the register and enter the name of the Applicant as sole proprietor of the suit properties
  4. 4.A permanent injunction restraining the Respondents from dealing with, entering, obstructing, subdividing, demolishing structures on, selling, alienating or occupying the suit property or otherwise interfering with it
  5. 5.No orders as to costs
Jurisdiction invoked
Sections 7, 13, 17 and 38 of the Limitation of Actions Act (Cap 22) read with Order 37 of the Civil Procedure Rules, 2010 - original jurisdiction of the Environment and Land Court over a claim for title by 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, "Fenesi (Suing as herself and as a Representative of the Estate of Abdalla Salim Fenesi) v Kariuki & another (Enviromental and Land Originating Summons 013 of 2023) [2025] KEELC 5852 (KLR)", Case Analysis (2025). Originating Summons dated 6th December 2023 (filed 20th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5852/eng@2025-07-28

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