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ELCDismissedAmended Originating Summons dated 19th August 2024· [2025] KEELC 6320 (KLR)

Lomilio v Maina & another (Environment and Land Case E053 of 2022) [2025] KEELC 6320 (KLR)

Environment and Land Court
25 September 2025
AOA. Omollo
4,099 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a caretaker's adverse possession claim because his entry onto the land was with the owner's permission, not hostile.

What this practically means

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Executive summary

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The Plaintiff filed an amended originating summons seeking a declaration that he was entitled to be registered as proprietor of Nairobi/Block 149/1415 by adverse possession, having allegedly occupied it since 1990 when the late Samuel Maina Karienye, the original owner, employed him as caretaker and guard. He sought cancellation of the Defendants' title and a permanent injunction. The Defendants, the deceased's son and his wife (registered as joint tenants in April 2021), opposed the claim, contending the Plaintiff was a paid employee whose occupation was permissive, that they developed the property from 2011 to 2017, and that the Plaintiff only asserted hostility after eviction attempts in 2020. They also noted an earlier eviction suit being filed against the Plaintiff. Both parties testified; the Plaintiff was the sole witness for his case, and the Defendant and his wife testified for the defence. The court framed one issue: whether the claim met the threshold for adverse possession. Applying Gabriel Mbui v Mukindia Maranya and Mbira v Gachuhi, the court held that the Plaintiff's entry was permissive and consensual, that he never demonstrated when permission was withdrawn, and that the Defendants' construction of a permanent house indicated he was not in exclusive possession. His bare denial of payment acknowledgements was insufficient. The court dismissed the amended Originating Summons with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiff established adverse possession of the suit property for the statutory period of 12 years

Holding

Claim dismissed - the Plaintiff's entry was permissive (as caretaker/guard), he did not prove when permission was withdrawn, and he was not in exclusive occupation given the Defendants' construction on the land

Reasoning

The Plaintiff admitted being retained by the deceased as caretaker and guard, making his entry consensual. He never stated when the permission was withdrawn, which is essential for time to run under sections 7, 13 and 38 of the Limitation of Actions Act. The construction of a permanent house by the Defendants between 2010 and 2017 showed the Plaintiff was not in exclusive possession, and his denial of signatures on payment acknowledgements was insufficient rebuttal.

p. 7

Legal principles established

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  • Where entry onto land is permissive, possession does not become adverse until permission is withdrawn, and the occupier must show how and when possession ceased to be permissive

Court orders

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  1. 1.The amended Originating Summons is dismissed with costs to the Defendants

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22section 7
  • Limitation of Actions Act, Cap 22section 13
  • Limitation of Actions Act, Cap 22section 38
  • Limitation of Actions Act, Cap 22section 38(1)

Cases cited (12)

  • Wambugu v Njuguna
    [1983] KLR 172
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Mbira v Gachuhi
    [2002] 1 EALR 137
  • Gatimu Kinguru v Muya Gathangi
    [1976] KLR 253
  • James Maina Kinya v Gerald Kwendaka
    [2018] eKLR
  • Chevron (K) Ltd v Harrison Charo wa Shutu
    [2016] eKLR
  • Kasuve v Mwaani Investments Ltd
    [2004] 1 KLR 184
  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR
  • Cobb v Lane
    [1952] 1 All ER 1199
  • Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd
    [1974] 3 All ER 575
  • Jandu v Kirpal and another
    [1975] EA 225
Jurisdiction invoked
Sections 7, 13 and 38 of the Limitation of Actions Act, Cap 22; adverse possession claim under ELC jurisdiction

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, "Lomilio v Maina & another (Environment and Land Case E053 of 2022) [2025] KEELC 6320 (KLR)", Case Analysis (2025). Amended Originating Summons dated 19th August 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6320/eng@2025-09-25

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