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ELCDismissedELC NO 54 OF 220 (OS)· [2025] KEELC 7825 (KLR)

Asaa & 113 others v Rajab & 11 others (Enviromental and Land Originating Summons 54 of 2020) [2025] KEELC 7825 (KLR)

Environment and Land Court
5 November 2025
975 words in judgment
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The bottom line

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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

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Executive summary

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The 1st and 2nd defendants in an adverse possession suit before the Environment and Land Court at Malindi raised a preliminary objection dated June 25, 2025 seeking to strike out the plaintiffs' claim against them. They argued that they purchased the suit premises (portion number 11020, formerly Org. No. 102/2 in Malindi) from the 3rd to 5th defendants on August 31, 2013, when the land was vacant, fenced it and took possession; since the suit was filed in 2020, the 12-year limitation period for adverse possession had not expired, so the plaintiffs lacked standing and the suit was a waste of judicial time. The plaintiffs, through Mr. Kenga, countered that the objection raised factual issues, not a pure point of law. Applying the Mukisa Biscuits test as stated by Sir Charles Newbold JA, E. K. Makori J agreed that the objection turned on questions of fact - notably when the limitation clock began to run - which can only be resolved at a full hearing. The court further held, following Gachuma Gacheru v Maina Kabuchwa and the earlier decision in Maweu v Liu Ranching & Farming Cooperative Society, that adverse possessor rights are not defeated by a change of ownership; adverse possession is a fact observed on the land, not in the title. The preliminary objection was accordingly dismissed with costs to the plaintiffs, and the suit proceeds to full hearing.

Key legal issues

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01

Whether the preliminary objection qualified as a point of law under the Mukisa Biscuits test

Holding

The objection did not qualify because it turned on ascertaining facts, particularly when time for adverse possession began to run

Reasoning

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.

p. 3
02

Whether adverse possession rights survive a change of ownership

Holding

Yes; a purchaser takes the land subject to the adverse possessor's accrued rights

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated June 25, 2025 is dismissed
  2. 2.The 1st and 2nd defendants to pay costs of the preliminary objection

Authorities

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Legislation

  • Limitation of Actions Actcap 22 (referred to generally)
  • (Registered Land Act referenced as)cap 300

Cases cited (3)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Gachuma Gacheru v Maina Kabuchwa
    [2016] eKLR
  • Maweu v Liu Ranching & Farming Cooperative Society
    [1985] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit; preliminary objection arising therein

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, "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.