Wekesa & another v Milimmo (Suing as the Administrator Estate of Andrew Milimo Mufutu - DCD) (Environment and Land Appeal E039 of 2024) [2025] KEELC 8454 (KLR)
The bottom line
#The Environment and Land Court in Bungoma upheld a registered landowner's title, ruling that long occupation based on a mistaken belief of ownership cannot defeat it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent is the lawful proprietor of the suit land
Yes. The deceased was registered as proprietor on 13/12/1988 and the Appellants produced no credible or documentary evidence to displace the presumption of regularity of registration.
The official search (PExhibit 6) showed registration in the deceased's name, and the green card (PExhibit 3) showed the parcel arose from subdivision of E.Bukusu/S.Kanduyi/2487 by the 1st Appellant who transferred it to the deceased. Under Section 26(1) of the Land Registration Act, the title is prima facie indefeasible and can only be challenged on proof of fraud or misrepresentation. The Appellants' assertion that only a portion was purchased was wholly unsubstantiated, so the presumption of regularity and indefeasibility prevails.
Whether the Appellants' occupation constituted trespass
Yes. Their admitted occupation of a portion of the suit land without consent was unlawful trespass under Section 3(1) of the Trespass Act.
The Appellants admitted occupation of a portion of the suit property. Since they failed to impeach the deceased's title, their occupation lacked colour of right. Under Section 3(1) of the Trespass Act, trespass is any unjustifiable intrusion upon private land without the owner's consent, as endorsed in Wambugu v Njuguna. Their occupation therefore remained unlawful and sustained the trial court's award of damages and eviction.
Whether the counter-claim of adverse possession was substantiated
No. The possession was based on a mistaken belief of entitlement and was not hostile to the Respondent's title.
For adverse possession, the possession must be adverse to the interests of the true owner, exclusive, and with the intention to dispossess (animus possidendi) for the statutory period under Section 7 of the Limitation of Actions Act. Occupation founded on an erroneous assumption of ownership is not hostile to the registered proprietor's interest and cannot extinguish title. The trial court therefore correctly dismissed the counter-claim.
Legal principles established
#- A certificate of title is prima facie proof of absolute and indefeasible ownership and may only be impeached upon strict proof of fraud or misrepresentation to which the proprietor is a party.
- He who alleges must prove; the burden lay on the Appellants to prove the alleged mistake in registration on a balance of probabilities.
- Possession based on a mistaken belief of ownership cannot found a claim of adverse possession as it lacks animus possidendi.
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The judgment and decree of the subordinate court (eviction, permanent injunction, general damages of Kshs. 100,000, costs and interest) remain undisturbed
- On appeal from
- Bungoma Chief Magistrate's Court (Environment and Land)
- CM-ELC Case No. E010 of 2023
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in land matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa & another v Milimmo (Suing as the Administrator Estate of Andrew Milimo Mufutu - DCD) (Environment and Land Appeal E039 of 2024) [2025] KEELC 8454 (KLR)", Case Analysis (2025). Bungoma ELC Appeal (from Bungoma CM-ELC Case No. E010 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8454/eng@2025-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.