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ELCDismissedBungoma ELC Appeal (from Bungoma CM-ELC Case No. E010 of 2023)· [2025] KEELC 8454 (KLR)

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)

Environment and Land Court
4 December 2025
2,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a first appeal to the Environment and Land Court at Bungoma against the judgment of the subordinate court in Bungoma CM-ELC Case No. E010 of 2023, in which the Respondent, as administrator of the estate of Andrew Milimo Mufutu (deceased), successfully sued the Appellants for eviction from land parcel E.Bukusu/S.Kanduyi/4473, a permanent injunction and general damages for trespass, obtaining Kshs. 100,000 in general damages, costs and interest. The Appellants, who had counter-claimed on the basis that the deceased purchased only a 25 x 100 feet portion and who pleaded adverse possession in the alternative, appealed against that judgment. The ELC framed two questions: whether the Respondent was the lawful proprietor of the suit land, and whether the counter-claim of adverse possession was substantiated. Relying on Section 26(1) of the Land Registration Act and Embakasi Properties Limited v Commissioner of Lands, the court held the deceased's title prima facie indefeasible and capable of challenge only on strict proof of fraud or misrepresentation, of which there was none. The Appellants' admitted occupation was therefore unlawful trespass under the Trespass Act. On adverse possession, the court held, following Wambugu v Njuguna, that occupation founded on a mistaken belief of ownership lacks animus possidendi and cannot extinguish a registered proprietor's title. The appeal was dismissed with costs to the Respondent, affirming the subordinate court's judgment and decree.

Key legal issues

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01

Whether the Respondent is the lawful proprietor of the suit land

Holding

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.

Reasoning

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.

p. 4
02

Whether the Appellants' occupation constituted trespass

Holding

Yes. Their admitted occupation of a portion of the suit land without consent was unlawful trespass under Section 3(1) of the Trespass Act.

Reasoning

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.

p. 5
03

Whether the counter-claim of adverse possession was substantiated

Holding

No. The possession was based on a mistaken belief of entitlement and was not hostile to the Respondent's title.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 2.The judgment and decree of the subordinate court (eviction, permanent injunction, general damages of Kshs. 100,000, costs and interest) remain undisturbed

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Registration of Titles Act (repealed)Section 23
  • Evidence Act (Cap 80)Sections 107, 108 and 109
  • Trespass Act (Cap 294)Section 3(1)
  • Limitation of Actions Act (Cap 22)Section 7

Cases cited (7)

  • Zacharia Wambugu Gathimu v John Dungu Maina
    (2019) eKLR
  • Isaac Kiprotich Kiptoo v Edward Kibet Kimetto
    (2019) eKLR
  • Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau
    (2013) eKLR
  • Wambugu v Njuguna
    [1983] KLR 171 (also cited as 172)
  • Wambugu & another v Muhamed & 3 others
    [2023] eKLR
  • Sheik Muhammed Lubowa vs Kitara Enterprises Ltd
    CA No. 4 of 1997
  • Embakasi Properties Limited & Another versus The Commissioner of Lands & Another
    (2019) eKLR
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

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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, "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.