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ELCAllowedELC Case No. E003 of 2023 (Originating Summons)· [2025] KEELC 6975 (KLR)

Mkota & 8 others v Jimbim Investments Ltd & 2 others (Enviromental and Land Originating Summons 3 of 2023) [2025] KEELC 6975 (KLR)

Environment and Land Court
8 October 2025
EME. K. Makori
1,503 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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The Applicants filed an Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules seeking declarations of adverse possession over Plot No. 1075/III/MN, Title No. CR.19153 (approximately 8.169 hectares), extinction of the Respondents' claim under Section 17 of the Limitation of Actions Act, transfer of the land to them, and a permanent injunction. Only the 2nd Respondent defended, asserting she had transferred ownership to the 3rd Respondent and should be removed from the suit; the 1st and 3rd Respondents did not defend despite service by substituted advertisement. The Applicants adduced title extracts, a postal search, photographs, and a surveyor's report confirming structures, mature trees and beacons on the parcel. Each Applicant testified to periods of occupation ranging from 21 to 36 years, without payment or interference. The court framed the issue as whether the Applicants had enjoyed open, exclusive, non-permissive possession for over twelve years. Applying Mbira v Gachuhi, it found all ingredients of adverse possession proved on a balance of probabilities. The claim was allowed in full: declarations of adverse possession and extinguishment were issued, the Registrar of Titles at Mombasa was directed to transfer the land to the nine Applicants, a permanent injunction was granted against the Respondents, the Applicants were to bear the 2nd Respondent's costs, and the 1st and 3rd Respondents were ordered to bear the Applicants' costs.

Key legal issues

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01

Whether the Applicants acquired title by adverse possession

Holding

Yes; they occupied the suit property openly, exclusively and non-permissively for over 12 years, exceeding the statutory period.

Reasoning

The court found that the Applicants had been on the suit property for periods ranging from 21 to 36 years, had built permanent structures, farmed and kept livestock, without any interference or payment to the Respondents. Photographs, a surveyor's report and title extracts corroborated continuous occupation. On a balance of probabilities, the ingredients in Mbira v Gachuhi were satisfied.

p. 3
02

Effect of limitation on the Respondents' title

Holding

The Respondents' claim is extinguished under Section 17 of the Limitation of Actions Act and the Applicants are entitled to be registered.

Reasoning

Relying on sections 7, 13, 17, 37 and 38 of the Limitation of Actions Act, the court held that time had run against the registered owners, extinguishing their claim and conferring on the Applicants the right to have the land transferred to them through the Registrar of Titles at Mombasa.

p. 2

Legal principles established

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  • A claimant seeking title by adverse possession must prove non-permissive, open, exclusive use for the statutory period without interruption.

Court orders

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  1. 1.A declaration that the 1st to 9th Applicants have acquired Plot No. 1075/III/MN, Title No. CR.19153, measuring approximately 8.169 hectares, through adverse possession
  2. 2.A declaration that the Respondents' claim stands extinguished and barred by virtue of Section 17 of the Limitation of Actions Act
  3. 3.An order directing the Registrar of Titles at the Mombasa Land Registry to transfer the land to the 1st through 9th Applicants
  4. 4.A permanent injunction restraining the Respondents and those claiming through them from entering, dealing with, or alienating the suit land
  5. 5.The Applicants shall bear the costs of the 2nd Respondent
  6. 6.The 1st and 3rd Respondents will bear the costs incurred by the Applicants

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 37, 38
  • Civil Procedure RulesOrder 37 Rule 7; Order 1 Rule 10

Cases cited (1)

  • Mbira v Gachuhi
    [2002] IEALR 137
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules; Sections 7, 13, 17, 37 and 38 of the Limitation of Actions Act (Cap 22)

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, "Mkota & 8 others v Jimbim Investments Ltd & 2 others (Enviromental and Land Originating Summons 3 of 2023) [2025] KEELC 6975 (KLR)", Case Analysis (2025). ELC Case No. E003 of 2023 (Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6975/eng@2025-10-08

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