Walubengo alias Rogers Lumatete Walubengo (Suing for and on Behalf of the Estate of Selina Nabangala Walubengo (Deceased)) v Wanyama & 3 others (Enviromental and Land Originating Summons E004 of 2023) [2025] KEELC 8253 (KLR)
The bottom line
#Bungoma's Environment and Land Court dismissed a man's claim to own land through adverse possession because a fence alone did not prove real, exclusive control.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved a claim of adverse possession over Ndivisi/Muchi/3446
The claim failed. The Plaintiff did not prove actual, open, exclusive, non-permissive possession for the statutory period; his mother's occupation of the suit land was not established, and his own possession amounted to little more than a fence.
The court applied the Mtana Lewa and Gabriel Mbui tests requiring deliberate, exclusive and hostile possession. Documentary exhibits showed the Plaintiff's mother purchased a different parcel (Ndivisi/Muchi/3178), not the suit property. PW3 admitted the mother may have occupied a different parcel. Defence witnesses proved the structures were built and occupied by third parties who paid rent to the 1st and 2nd Defendants. The Plaintiff's alleged dominion and control was not rebutted against this evidence.
Burden of proof on an adverse possession claimant
The burden lay on the Plaintiff under section 107 of the Evidence Act, on a balance of probabilities, and was not discharged.
The court held that DW4's testimony that she paid rent directly to the 1st and 2nd Defendants was not successfully rebutted. Absent credible proof of cultivation or of the Plaintiff being the beneficiary of the permanent structures, mere occupation was insufficient where the law demands certainty.
Legal principles established
#- Adverse possession extinguishes a registered owner's title where a third party proves continuous, uninterrupted, open, notorious and non-permissive possession for 12 years while asserting a hostile title
- The adverse character of possession must be established as a fact and cannot be presumed from mere exclusive possession; there must be facts showing a clear intention to hold adversely and under a claim of right
Court orders
#- 1.The Originating Summons dated 09/10/2023 is dismissed with costs to the Defendants.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act, Cap 22 (claim for declaration of title by adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walubengo alias Rogers Lumatete Walubengo (Suing for and on Behalf of the Estate of Selina Nabangala Walubengo (Deceased)) v Wanyama & 3 others (Enviromental and Land Originating Summons E004 of 2023) [2025] KEELC 8253 (KLR)", Case Analysis (2025). Originating Summons dated 09/10/2023 (Bungoma ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8253/eng@2025-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.