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ELCDismissedOriginating Summons dated 14th November 2024· [2025] KEELC 7920 (KLR)

Mark v M’mumbuongo & another (Enviromental and Land Originating Summons E070 of 2024) [2025] KEELC 7920 (KLR)

Environment and Land Court
13 November 2025
2,484 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 Plaintiff, Kithinji Mark, filed an Originating Summons dated 14th November 2024 under Sections 37 and 38 of the Limitation of Actions Act, seeking leave for substituted service, declarations that he was entitled to the residual leasehold in LR No. 12672/16, Nairobi County by adverse possession and that the Defendants' title stood extinguished, an order directing the Deputy Registrar to execute transfer documents, and costs. He averred that he had lived openly, peacefully and exclusively on the property since February 2011 without the Defendants' permission or interference. The Defendants were served by substituted service but neither entered appearance nor filed a defence. The matter came before the Environment and Land Court at Nairobi (Mohammed N. Kullow, J), who framed a single issue: whether the Plaintiff had acquired title by adverse possession. The Court reiterated that a claimant must prove exclusive, open, non-permissive, notorious and continuous possession for twelve years, with the date and circumstances of commencement clearly established, and that absence of a defence does not relieve a claimant of the burden of proof. The Court found material inconsistencies: the Plaintiff's affidavit showed his occupation was a continuation of his grandparents' possession, which was never pleaded or proved as adverse; he offered no proof of the Defendants' abandonment in 2008; and he produced no corroborating documentary evidence of acts of ownership. The claim was dismissed with no order as to costs.

Key legal issues

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01

Whether the Plaintiff acquired title to LR No. 12672/16 by adverse possession

Holding

Claim dismissed - the Plaintiff failed to prove adverse possession

Reasoning

The Plaintiff claimed occupation since February 2011 but his affidavit revealed that his occupation was a continuation of his grandparents' prior occupation, and he neither pleaded nor proved that prior occupation was adverse. He gave no proof of the Defendants' abandonment or of overt acts of ownership such as photographs, receipts or approvals. Uncorroborated and ambiguous occupation, even if uncontested, did not discharge the burden of proving non-permissive, open, notorious, exclusive and continuous possession for twelve years.

p. 5
02

Whether absence of a defence permits judgment without proof of the claim

Holding

No - unopposed claims must still meet the legal standard

Reasoning

The Defendants were duly served by substituted service but did not enter appearance or file a defence. The Court accepted that unrebutted evidence may be accepted, but held that the statutory elements of adverse possession must be strictly proved regardless. Mere assertion of residence, without corroboration and without evidence of hostility, does not defeat registered title.

p. 4

Legal principles established

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  • To acquire title by adverse possession, the claimant must prove exclusive, open, peaceful possession without interruption for twelve years, either by dispossessing the owner or by the owner's discontinuance of possession.
  • Once the twelve-year limitation period lapses, the registered owner's title is extinguished automatically by operation of law.
  • An unopposed claim does not relieve the claimant of the burden of proof; the claimant must still satisfy the legal standard for adverse possession.

Court orders

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  1. 1.The Plaintiff's claim for adverse possession of Land Reference Number 12672/16, Nairobi County, is dismissed.
  2. 2.There shall be no order as to costs.

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Sections 6, 7, 13, 17, 37, 38(1)
  • Land Registration Act, 2012Section 28(h)
  • Land Act, 2012Section 7(d)
  • Constitution of Kenya, 2010generally (referred to as 'the 2010 Constitution')

Cases cited (15)

  • Linus Nganga Kiongo & 3 Others -Vs- Town Council of Kikuyu
    [2012] eKLR
  • Trust Bank Limited -Vs- Paramount Universal Bank Limited & 2 Others
    HCCC No. 1243 of 2001
  • Karuru Munyororo -Vs- Joseph Ndumia Murage & Another
    [1988] eKLR
  • Janet Kaphiphe Pumah & Another -Vs- Marie Stopes International (Kenya)
    [2007] eKLR
  • Salim -Vs- Boyd & Another
    (1970) E.A. 550
  • Celina Muthoni Kithinji -Vs- Sofiya Binti Swaleh & 8 Others
    [2018] eKLR
  • Kimani Ruchine & Another -Vs- Swift Rutherford & Co. Ltd.
    (1977) KLR 10 / [1980] KLR 10
  • Samuel Kihamba -Vs- Mary Mbaisi
    [2015] eKLR
  • Kasuve -Vs- Mwaani Investments Ltd. & Others
    [2004] 1 KLR 184
  • Benjamin Kamau & Others -Vs- Gladys Njeri
    C.A. No. 2136 of 1996
  • Mtana Lewa -Vs- Kahindi Ngala Mwagandi
    [2015] eKLR
  • Wambugu -Vs- Njuguna
    [1983] KLR 172
  • Mbira -Vs- Gachuhi
    [2002] 1 E.A. 137 / (2002) 1 EALR 137
  • Gabriel Mbui -Vs- Mukindia Maranya
    [1993] eKLR
  • Kweyu -Vs- Omuto
    [1990] KLR 709
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act (Cap 22) - claim for registration as proprietor by adverse possession

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, "Mark v M’mumbuongo & another (Enviromental and Land Originating Summons E070 of 2024) [2025] KEELC 7920 (KLR)", Case Analysis (2025). Originating Summons dated 14th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7920/eng@2025-11-13

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