Musa & 6 others (Suing on their own behalf and on behalf of Mwakirunge residents upon the suit property/Plot No CR 345 numbering 366 individuals) v Hassam & 4 others (Environment and Land Case 133 of 2015) [2025] KEELC 7775 (KLR)
The bottom line
#Mombasa's Environment and Land Court dismissed a squatters' adverse possession claim because they sued the wrong owner over the wrong parcel, and now face eviction within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Identification of the suit property and the correct registered proprietor
The Plaintiffs failed: pleadings referred to Plot No. 324/III/MN CR 345, the annexed title was CR No. 30411 (Subdivision 817), and the Defendants had sold that parcel to Bandari Investments Company Limited on 8th October 2012, before suit was filed in June 2015
The court found profound confusion as to the identity of the land. An adverse possession claim is in rem and must be brought against the registered proprietor during the limitation period. The claim also impermissibly shifted in testimony toward L.R. No. 819/II/MN, which was not pleaded in the Originating Summons, contrary to Order 2 Rule 6 of the Civil Procedure Rules.
Whether the Plaintiffs proved adverse possession for over 12 years
No. Any occupation of L.R. No. 819/II/MN began in or after 2014, far short of 12 years, and the entry was marred by force, violence and criminal charges for trespass
Relying on the site visit report from ELC No. 298 of 2013 finding only eight houses in 2014, irreconcilable with a settled community since 1985, the court held the elements of open, notorious, continuous, exclusive and peaceful possession were not met. Possession must be nec vi, nec clam, nec precario.
Whether the Defendants' Counterclaim was merited
Yes. As registered proprietors of L.R. No. 819/II/MN, the Defendants hold indefeasible title under Sections 24, 25 and 26 of the Land Registration Act; the Plaintiffs' occupation was trespass
The certificate of title is prima facie evidence of absolute ownership. The Plaintiffs adduced no evidence justifying their occupation. Eviction and permanent injunction were granted to vindicate proprietary rights, with nominal-type general damages of Kshs. 5,000,000 awarded since no specific evidence quantified monetary loss.
Costs of the suit and counterclaim
Defendants, as successful parties, were awarded costs of both the Plaint and the Counterclaim
Section 27(1) of the Civil Procedure Act provides costs follow the event. The Plaintiffs failed to prove their claim and the Defendants proved their counterclaim, so no reason existed to depart from the general rule.
Legal principles established
#- A claim for adverse possession must be brought against the registered proprietor of the suit land at the time of filing the suit
- Identification of the suit property is an integral and essential part of proving adverse possession
- Possession acquired or maintained by force and violence does not qualify as adverse possession
- Registration under the Land Registration Act vests absolute and indefeasible ownership in the registered proprietor
- Costs follow the event and the successful party is typically entitled to costs
Court orders
#- 1.Judgment entered in favour of the Defendants in respect of the Amended Statement of Defence and Counter-claim dated 18th April 2024 with costs
- 2.Plaintiffs' claim in the Originating Summons/Plaint dated 12th June 2015 dismissed with costs
- 3.Declaration that the suit property is CR NO. 30411 [Sub-division No. 817 (Original Number 324/2)]
- 4.Declaration that the Defendants are not the legal and bona fide owners of CR NO. 30411 [Subdivision No. 817 (Original Number 324/2)] having transferred the same to Bandari Investment Company Limited on 8th October 2012
- 5.Declaration that the Defendants are the absolute and indefeasible registered proprietors of L.R. No. 819/II/MN
- 6.Permanent injunction restraining the Plaintiffs and those claiming through them from trespassing on, encroaching upon, cultivating, constructing on, alienating or interfering with L.R. NO. 819/II/MN
- 7.Plaintiffs and those claiming under them ordered to vacate and deliver vacant possession of L.R. NO. 819/II/MN within Ninety (90) days pursuant to Section 152E of the Land Act
- 8.In default of vacating, an eviction order to issue from L.R. NO. 819/II/MN, to be enforced by the OCS Kiembeni Police Station and other law enforcement
- 9.General damages for trespass awarded to the Defendants assessed at Kenya Shillings Five Million (Kshs. 5,000,000/-)
- 10.Costs of the suit and the counterclaim awarded to the Defendants
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musa & 6 others (Suing on their own behalf and on behalf of Mwakirunge residents upon the suit property/Plot No CR 345 numbering 366 individuals) v Hassam & 4 others (Environment and Land Case 133 of 2015) [2025] KEELC 7775 (KLR)", Case Analysis (2025). ELC Originating Summons (converted to Plaint) dated 12th June 2015, Environment and Land Court at Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7775/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.