Safari & 171 others v Kandolt & 3 others (Environment and Land Case 109 of 2010) [2025] KEELC 8050 (KLR)
The bottom line
#The Environment and Land Court in Mombasa ruled that 172 families who occupied land openly since 1971 now own it, cancelling the registered owner's title.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiffs have been in open, continuous, exclusive and adverse possession of the suit property for the statutory period of 12 years
- 2.Whether the Defendants' titles, transfers and sub-divisions extinguished the Plaintiffs' right to occupation
- 3.Whether the Plaintiffs are entitled to be registered as proprietors under Section 38 of the Limitation of Actions Act, Cap. 22
- 4.Who shall bear the costs of the suit
Key legal issues
#Whether the Plaintiffs established adverse possession for the statutory 12 years
Yes. The Plaintiffs entered in 1971, cultivated, built, buried family members and remained openly and adversely; their title matured by 1983.
The court found that occupation from 1971 involved clearing bush, cultivation, house construction, a borehole, livestock and burials, which were overt acts of ownership. The 1995 suit and 2008 demolitions were temporary disturbances and no effective eviction occurred, so time continued running until the Plaintiffs' title matured by operation of Sections 7 and 17 of the Limitation of Actions Act.
Whether the Defendants' titles, transfers and sub-divisions defeated the Plaintiffs' possessory rights
No. The Defendants' titles rested on a cancelled/unsigned Entry No. 41, a non-existent Entry No. 43, defective sub-division without LCB consent and a forged Land Control Board consent; they could not defeat matured adverse possession.
Land Registrars and the defence surveyor conceded the transfer to the 2nd Defendant was cancelled and unsigned, the mother title's entry sequence was anomalous, no LCB consent was obtained for sub-division of agricultural land, and a forensic examiner found the consent relied on by the 26th Defendant was altered. The sub-divisions post-dated the accrual of the Plaintiffs' possessory rights and were procedurally defective, so no indefeasible title arose to defeat the claim.
Whether the Plaintiffs are entitled to registration under Section 38 of the Limitation of Actions Act
Yes. Having proved the statutory prerequisites, the Court ordered registration of the Plaintiffs as proprietors of the portions they occupy.
Section 38 permits registration of a person who claims to have become entitled by adverse possession once the limitation period has run. The Plaintiffs proved factual possession, animus possidendi, and open continuous exclusive adverse occupation, and no effective interruption; the burden of proof, which persists even in formal proof, was discharged on a balance of probabilities.
Legal principles established
#- Adverse possession requires actual, open, continuous, exclusive and non-permissive occupation for 12 years, nec vi, nec clam, nec precario
- Once the registered owner's title is extinguished by limitation, subsequent transfers or sub-divisions pass no better title and cannot defeat matured possessory rights
- Where the chain of title is vitiated by forgery, procedural defects or invalid consent, certificates of title cannot stand against a matured adverse possession claim
Court orders
#- 1.Judgment entered in favour of the Plaintiffs in respect of the Originating Summons dated 16th April 2010, which is allowed as prayed
- 2.Declaration that the title of the 1st Defendant, Gurmit Singh Kandolt, to Plot No. 350/II/MN is extinguished by the Plaintiffs' adverse possession exceeding twelve years
- 3.Declaration that the Plaintiffs are entitled to be registered as proprietors of Plot No. 350/II/MN by virtue of adverse possession
- 4.Direction to the Land Registrar, Mombasa County to cancel the Certificate of Title in the name of Gurmit Singh Kandolt and register the Plaintiffs as absolute proprietors, subject to a survey to ascertain exact boundaries and acreage
- 5.Declaration and order that the claims by the 2nd to 28th Defendants and the Interested Parties be dismissed in their entirety
- 6.Order directing lawful (no forceful) eviction of the 2nd to 28th Defendants and the Interested Parties from the suit land pursuant to Section 152E of the Land Act, No. 6 of 2012
- 7.Direction that upon lapse of that period, the OCS, Bamburi Police Station to ensure full compliance of the orders
- 8.Plaintiffs awarded the costs of the Originating Summons against the 1st Defendant and the 2nd to 28th Defendants, jointly and severally
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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, Cap. 22
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That Judgment be and is hereby entered in favour of the Plaintiffs in respect to the Originating Summons dated 16th April, 2010 and hence it is allowed as prayed.
That a declaration do and is hereby made that the title of the 1st Defendant, Gurmit Singh Kandolt, to all that parcel of land known as PLOT NO. 350/II/MN has been extinguished by virtue of the Plaintiffs' adverse possession for a period exceeding twelve (12) years.
That the Land Registrar, Mombasa County, be and is hereby directed to henceforth cancel the Certificate of Title Deed in the name of Gurmit Singh Kandolt for all that parcel of land known as Land Reference Numbers Plot NO. 350/II/MN and to register the Plaintiffs as the absolute proprietors thereof, subject to a survey to ascertain the exact boundaries and acreage.
That there be declaration and order made to the effect that the claims by the 2nd to 28th Defendants and the Interested Parties herein be and are hereby dismissed in their entirety.
The Defendants' titles, transfers, and sub - divisions did not extinguish the Plaintiffs' rights.
A person claiming adverse possession must, in addition to showing continuous and uninterrupted occupation beyond 12 years, prove non-permissive or non-consensual, actual, open, notorious, exclusive, and adverse use/occupation of the land in question for an uninterrupted period of 12 years
Issues in the judgment
#Order (f) on eviction is internally confused, directing 'no forceful eviction' while purporting to order eviction of the 2nd to 28th Defendants and Interested Parties pursuant to Section 152E of the Land Act
The judgment internally mislabels witnesses' roles: at paragraph 343 the Land Registrar Rama is referred to as 'DW – 4, the Land Registrar' although DW-4 is the surveyor Dennis Malembeka, and DW-4 the surveyor is elsewhere conflated with the Registrar
The Court criticises and declines to fully rely on the site visit report as it covered only a small portion of the land, yet still relies broadly on the Plaintiffs' evidence of occupation which the site visit had contradicted in part
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Safari & 171 others v Kandolt & 3 others (Environment and Land Case 109 of 2010) [2025] KEELC 8050 (KLR)", Case Analysis (2025). Originating Summons dated 16th April 2010 (Environment and Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8050/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.