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ELCDismissedOriginating Summons dated 15th September 2017 (current case number after transfer not stated)· [2025] KEELC 6042 (KLR)

Ashivaga (Suing on her own behalf and on behalf of the Estate of the Deceased Adriano Ashibaga) & another v Ichela (Sued on his own behalf and also as the Administrator of the Estate of Peter Ichela Mukabale - Deceased) (Environment and Land Case 29 of 2020) [2025] KEELC 6042 (KLR)

Environment and Land Court
18 September 2025
DOD. O. Ohungo
1,864 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer lost his adverse possession claim because he had occupied the property for only six years, not the required twelve.

What this practically means

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Executive summary

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The Plaintiffs moved the Court by Originating Summons dated 15th September 2017 seeking declarations that the Second Plaintiff had acquired title to a 0.2 hectares portion of Isukha/Shitochi/917 by adverse possession, and an order compelling the Defendant, the registered proprietor and administrator of the estate of Peter Ichela Mukabale, to transfer the portion to him. The First Plaintiff, Rosalia, claimed she and her late husband purchased the portion from Peter on 24th November 1992 for KShs 130,000, occupied it until 2011 when she sold it to the Second Plaintiff for KShs 450,000, who had since occupied and developed it. The Defendant denied any sale, asserting the occupation was permissive and pointing to a prior eviction suit. Five Plaintiffs' witnesses and two defence witnesses testified and parties filed written submissions. The Court framed two issues: whether adverse possession was established and whether the reliefs should issue. Applying the Court of Appeal's statement of ingredients in Richard Wefwafwa Songoi and Munyanya v Keya, the Court held that adverse possession must be hostile, actual, open, peaceful, exclusive and continuous for twelve years. A purchaser's time runs from final payment of the purchase price, but the Second Plaintiff had occupied for only six years and two months by the filing date. Rosalia, having parted with possession in 2011, could not claim the relief herself. The Court found adverse possession not established, dismissed the suit, and awarded costs to the Defendant.

Key legal issues

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01

Whether Rosalia and Adriano established adverse possession to the 0.2 hectares portion

Holding

No - Rosalia parted with possession to the Second Plaintiff in 2011 and could not claim adverse possession as at the date of filing the suit

Reasoning

Rosalia's own case was that she sold and handed over vacant possession of the portion to the Second Plaintiff in 2011. Adverse possession under Section 7 of the Limitations of Actions Act bars actions to recover land, but recovery is not needed from one no longer in possession. She also prayed for title to vest in the Second Plaintiff, not herself, so her claim could not stand.

p. 4
02

Whether the Second Plaintiff established adverse possession

Holding

No - he took possession on 28th July 2011 and had occupied for only six years and two months when the suit was filed, well short of the statutory 12 years

Reasoning

The Second Plaintiff purchased from Rosalia on 28th July 2011 and immediately received vacant possession. The statutory period for adverse possession is twelve years of continuous, open, hostile and exclusive possession. Having occupied for barely six years at the filing date, he could not satisfy the requirement, and his claim founded heavily on sale agreements misconceived the doctrine.

Legal principles established

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  • Time for adverse possession begins to run in favour of a purchaser from the moment of final payment of the purchase price, since possession thereafter is no longer by permission of the seller.
  • Adverse possession is not a procedure for enforcing sale agreements; the focus must be on the ingredients of adverse possession, not the contract.

Court orders

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  1. 1.The Plaintiffs' Originating Summons is dismissed
Jurisdiction invoked
Original jurisdiction under the Limitations of Actions Act (Sections 7, 13, 17 and 38) as an Environment and Land Court first-instance claim for 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, "Ashivaga (Suing on her own behalf and on behalf of the Estate of the Deceased Adriano Ashibaga) & another v Ichela (Sued on his own behalf and also as the Administrator of the Estate of Peter Ichela Mukabale - Deceased) (Environment and Land Case 29 of 2020) [2025] KEELC 6042 (KLR)", Case Analysis (2025). Originating Summons dated 15th September 2017 (current case number after transfer not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6042/eng@2025-09-18

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