Asaa & 113 others v Rajab & 11 others (Enviromental and Land Originating Summons 54 of 2020) [2025] KEELC 7825 (KLR)
The bottom line
#The Malindi Environment and Land Court dismissed landowners' attempt to strike out an adverse possession claim, confirming that such disputes need a full hearing and survive title transfers.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection qualified as a point of law under the Mukisa Biscuits test
The objection did not qualify because it turned on ascertaining facts, particularly when time for adverse possession began to run
The court applied the classic Mukisa Biscuits definition, as restated by Sir Charles Newbold JA, that a preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Determining when the limitation clock started for adverse possession requires factual inquiry at a hearing; hence the objection was fact-dependent and unmeritorious.
Whether adverse possession rights survive a change of ownership
Yes; a purchaser takes the land subject to the adverse possessor's accrued rights
Relying on Gachuma Gacheru v Maina Kabuchwa, which reaffirmed Maweu v Liu Ranching & Farming Cooperative Society, the court held that adverse possession is a fact observable on the land rather than in the title. Time continues to run against successors in title, and an owner who fails to inspect land or ascertain who is in possession risks their title under the Limitation of Actions Act.
Legal principles established
#- A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
- The rights of an adverse possessor are not defeated by a change of ownership of the land; time runs from when adverse possession commenced, not from issuance of title to a new owner
Court orders
#- 1.The preliminary objection dated June 25, 2025 is dismissed
- 2.The 1st and 2nd defendants to pay costs of the preliminary objection
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit; preliminary objection arising therein
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asaa & 113 others v Rajab & 11 others (Enviromental and Land Originating Summons 54 of 2020) [2025] KEELC 7825 (KLR)", Case Analysis (2025). ELC NO 54 OF 220 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7825/eng@2025-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.