Brek v Aroi (Suing in her Capacity as the Administrator of the Estate of Yusuf Avumau Aroi) (Environment and Land Case 13 of 2023) [2025] KEELC 7296 (KLR)
The bottom line
#The Environment and Land Court in Malindi dismissed a man's bid to claim land by adverse possession because he lacked a certified title extract, permission from the owner, and proof of possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim complied with Order 37 Rule 7(2)
It did not; no certified extract of title or certificate of search was provided, a substantial flaw preventing adjudication
Order 37 Rule 7(2) requires an originating summons for adverse possession to be supported by an affidavit annexing a certified extract of title. The court, adopting Munyao J.'s ELC Practice Guidelines for the Coast region, held the requirement must be strictly observed. The applicant filed no certified extract and no certificate of search, leaving the court unable to confirm the land's existence, ownership or adjudication status.
Whether the plots MN/III/539R and MN/III/539 are distinct
They are identical; the applicant's renaming was an attempt to evade the earlier judgment
The applicant produced no evidence, extracts or ownership documents to differentiate the two parcel numbers. His own affidavit acknowledged 'differences' with teachers over the property, which were the subject matter conclusively decided in favour of the respondent in Mombasa ELC Case No. 294 of 2012. His own agreement, 'FAB 1', identified the property as Plot No. MN/III/539, confirming the land claimed is the same as in the earlier litigation.
Whether the applicant's occupation was adverse
It was permissive, not adverse; his father built with the respondent's father's consent for a community purpose (wakf)
The record shows the respondent's father permitted the applicant's father to construct the flats and hall for community benefit, to support the mosque and madrasa, not for private ownership. The applicant's role was that of overseer of construction, which was non-possessory. Following Samuel Miki Waweru v Jane Njeri Richu, possession founded on permission cannot ripen into adverse possession until the permission is terminated. The applicant also never resided on or exclusively controlled the property.
Whether the applicant discharged the evidentiary burden
He did not; construction permits were not attached and 12 years' continuous possession was unproven
The applicant relied on construction permits that were never attached to his documents, and his claim of 12 years' continuous, uninterrupted occupation was unsupported. The mosque and madrasa central to the property were built and maintained by the respondent's family. Under Sections 107, 109 and 112 of the Evidence Act, the applicant bore the burden of proving his assertion and failed to discharge it.
Legal principles established
#- An adverse possession claim must be initiated by originating summons supported by an affidavit to which a certified extract of the title is annexed, and this requirement must be strictly complied with
- Adverse possession requires non-permissive, non-consensual, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
- Possession held with the permission of the owner, or in pursuance of an agreement, is not adverse; it does not become adverse before the end of the period of permission
- The evidentiary burden in civil claims rests on the party asserting, under Sections 107, 109 and 112 of the Evidence Act
Court orders
#- 1.The Originating Summons is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brek v Aroi (Suing in her Capacity as the Administrator of the Estate of Yusuf Avumau Aroi) (Environment and Land Case 13 of 2023) [2025] KEELC 7296 (KLR)", Case Analysis (2025). Originating Summons dated December 18, 2023 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7296/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.