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ELCPartially AllowedOriginating Summons dated 7/5/2024· [2025] KEELC 6511 (KLR)

Chengo & 3 others v Bellman (Environment and Land Case E009 of 2024) [2025] KEELC 6511 (KLR)

Environment and Land Court
30 September 2025
MNMwangi Njoroge
1,561 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Three siblings proved they had openly lived on 1.151 hectares of private land for over 12 years, so a Kenyan court gave them legal ownership.

What this practically means

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Executive summary

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The Applicants, three siblings, sued by Originating Summons dated 7 May 2024 claiming title to approximately 1.151 hectares of Plot No. 530/III/MN, Title No. 14270, by adverse possession. They asserted life-long occupation of the land, on which they were born and raised, and on which their father, Chengo Kitsaumbi, who died in February 2020, was buried. They relied on a copy of the title deed, their identity cards, photographs of their activities and houses on the land, and an official search confirming the Respondent as registered owner. The Respondent, served by press advertisement, neither entered appearance nor filed a response, and the suit proceeded ex parte. Getrude Rehema Chengo, the 1st Applicant, testified and adopted her supporting affidavit, producing the annexed documents as exhibits. The court analysed the doctrine of adverse possession under Sections 7, 13 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, 2010, and placed the burden of proof on the Applicants under Sections 107, 108 and 109 of the Evidence Act. Applying the test in Wambugu v Njuguna [1983] KLR 173, the court found the uncontroverted evidence established open, continuous, uninterrupted, exclusive possession for over 12 years, during which the registered proprietor exercised no proprietorial rights. The court declared the Applicants entitled by adverse possession, vested title in them in equal shares, directed the Respondent to execute transfer documents (failing which the Deputy Registrar would do so), and directed the Land Registrar, Kilifi County, to effect the transfer and issue title. There were no orders as to costs.

Key legal issues

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01

Whether the Applicants acquired title to 1.151 Ha of the suit property by adverse possession

Holding

Yes - the Applicants proved open, continuous, exclusive and uninterrupted possession for over 12 years without the registered owner's consent

Reasoning

The 1st Applicant testified under oath that she, aged 48, had lived on the land all her life with her siblings and that their late father was buried there, supported by photographs. The Respondent, though registered proprietor, neither entered appearance nor filed a defence, so the evidence was uncontroverted. The court found the elements of adverse possession under Sections 7 and 13 of the Limitation of Actions Act established on a balance of probabilities.

p. 4
02

The legal framework and burden of proof in adverse possession claims

Holding

The claim is grounded in Sections 7, 13 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules; the applicant bears the burden of proof on a balance of probabilities under Sections 107, 108 and 109 of the Evidence Act

Reasoning

The court set out the statutory basis: limitation bars recovery actions after 12 years, adverse possession accrues when a person takes possession, and relief is sought by Originating Summons under Section 38 and Order 37. It stressed that the applicant must adduce credible evidence proving prescriptive rights since the burden lies on the party who would fail if no evidence were given.

p. 3

Legal principles established

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  • A person seeking title by adverse possession must prove exclusive, open and uninterrupted possession for the statutory period of 12 years
  • Possession must be as of right and inconsistent with the registered owner's rights - open, actual, continuous, uninterrupted, peaceful, exclusive and with knowledge but without the owner's consent for 12 years

Court orders

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  1. 1.Declaration that the Applicants have acquired by adverse possession title to a portion measuring approximately 1.151 hectares of Plot No. 530/III/MN Title No. 14270
  2. 2.Order vesting title of the said portion of land in the names of the Applicants in equal shares
  3. 3.Respondent directed to execute all documents necessary to effect the transfer and registration, failing which the Deputy Registrar to execute on his behalf
  4. 4.Land Registrar, Kilifi County, directed to effect the transfer and issue a title in favour of the Applicants
  5. 5.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1),(2),(3)
  • Limitation of Actions ActSection 38(1),(2); Section 37
  • Civil Procedure Rules, 2010Order 37 rule 1(1),(2)
  • Evidence ActSections 107(1), 108, 109
  • Limitation of Actions ActSections 9, 10, 11, 12; Section 12(3)

Cases cited (1)

  • Wambugu v Njuguna
    [1983] KLR 173
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act (Cap 22) read with Order 37 of the Civil Procedure Rules, 2010 - application to the High Court for an order that a person entitled by adverse possession be registered as proprietor

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, "Chengo & 3 others v Bellman (Environment and Land Case E009 of 2024) [2025] KEELC 6511 (KLR)", Case Analysis (2025). Originating Summons dated 7/5/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6511/eng@2025-09-30

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