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ELCPartially AllowedOriginating Summons dated 22nd August 2024

Mwita v Maroa & another (Enviromental and Land Originating Summons E024 of 2024) [2026] KEELC 98 (KLR)

Environment and Land Court
16 January 2026
3,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A man who openly occupied land he bought in 1993 for over 12 years won ownership through adverse possession despite the seller lacking registered title.

What this practically means

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Executive summary

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The plaintiff, David Ngoina Mwita, brought an Originating Summons dated 22nd August 2024 under Sections 7 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, seeking declarations that he had acquired title to 1.1/4 hectares out of L.R. No. Nyabasi/Busonga/76 (measuring 10.6 hectares) by adverse possession, together with orders compelling transfer and registration of that portion into his name. He alleged he purchased the portion in January 1993 for KShs. 12,200 from a beneficial occupier and had been in open, continuous and uninterrupted occupation for over twenty years. The defendants, registered proprietors by transmission from the estate of the deceased first proprietor, denied the claim, asserting the alleged seller lacked capacity and that the plaintiff only trespassed in 2023. Their replying affidavit was struck out for being filed without leave over four months late, and the suit proceeded to formal proof ex parte. The plaintiff testified as PW1, adopting his affidavit and producing a green card, official search, the 1993 sale agreement and a Chief's letter. Framing two issues - whether the plaintiff proved his case on a balance of probabilities and who should bear costs - the court applied the IRAC method and the adverse possession elements from Mtana Lewa, Chevron and Mazurui, holding the plaintiff's possession was open, peaceful and uninterrupted for over twelve years. Judgment was entered in terms of the summons: a declaration of adverse possession, an order that the Land Registrar transfer the surveyed portion upon execution of mutation forms, and directions for the defendant to execute transfer instruments within thirty days, failing which the Deputy Registrar would do so. Each party was ordered to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff has proved his case on a balance of probabilities
  2. 2.Who to bear the costs of the Summons

Key legal issues

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01

Whether the plaintiff proved adverse possession of 1.1/4 hectares of Nyabasi/Busonga/76

Holding

The court found that the plaintiff proved on a balance of probabilities that he had been in open, continuous and uninterrupted occupation of the suit portion for over twelve years, having purchased it in 1993, and that the defendants' title was extinguished

Reasoning

The defendants' replying affidavit was struck out for being filed without leave, leaving the plaintiff's pleaded facts uncontroverted. The plaintiff testified and produced a sale agreement dated 6 January 1993, a green card, official search and a Chief's letter confirming occupation. Applying the elements from Mtana Lewa and Chevron, the court found his occupation was open, peaceful and uninterrupted for over 12 years without the owner's permission, satisfying nec vi, nec clam, nec precario.

p. 6
02

Whether a claimant can claim adverse possession over a specific portion of a larger parcel purchased from a beneficial occupier

Holding

The court held that a claimant must be in occupation of a specific identifiable portion of land for the period and in the manner the law recognizes; the legality of the underlying sale was not the decisive issue

Reasoning

The defendants' struck-out response had argued the seller lacked capacity to sell. The court declined to rely on that pleading but observed that the relevant question was whether the claimant occupied a specific portion openly and uninterrupted for over twelve years, not whether the sale agreement was founded on an illegal transaction.

p. 6
03

Who should bear the costs of the summons

Holding

The court ordered each party to bear their own costs, despite the plaintiff's prayer that the defendant pay costs

Reasoning

Although the plaintiff succeeded and had prayed for costs against the defendants, the court in its final orders directed that each party bear their own costs, without giving reasons for departing from the ordinary rule that costs follow the event.

p. 6

Legal principles established

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  • Adverse possession requires possession that is not by force, stealth or licence of the owner, and must be adequate in continuity, publicity and extent
  • The burden of proving adverse possession lies on the claimant, who must demonstrate open, peaceful possession without the owner's consent for an uninterrupted period of 12 years (nec vi, nec clam, nec precario)
  • Since the 2010 Constitution, the reference to the High Court in section 38 of the Limitation of Actions Act is interpreted as the Environment and Land Court
  • Where a defendant's response is struck out and facts are uncontroverted, the plaintiff must still prove them to the standard of a balance of probabilities

Court orders

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  1. 1.A declaration that the Plaintiff, and/or any other person claiming under him, has acquired by way of adverse possession a portion measuring 1.1/4 hectares out of L.R. No. Nyabasi/Busonga/76 measuring 10.6 hectares in total
  2. 2.The Land Registrar to transfer, upon survey by a surveyor of the parties' choice and signing of mutation forms, the portion measuring 1.1/4 hectares to the Plaintiff
  3. 3.The defendant to execute and/or sign all necessary transfer instruments within thirty (30) days, in default of which the Deputy Registrar shall execute the same
  4. 4.Each party to bear costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution of Kenya and the Environment and Land Court Act, read with Sections 7 and 38 of the Limitation of Actions Act

Relief refused

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Costs of the suit against the defendant

The court ordered each party to bear their own costs rather than awarding costs to the plaintiff

p. 6

Costs

Each party to bear costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A declaration be and is hereby issued that the Plaintifi, and/ or any other person claiming under him, has acquired by way of adverse possession a portion measuring 1.1/4 hectares out of L.R. No. Nyabasi/Busonga/76 measuring 10.6 hectares in total.
p. 6declaration of adverse possession
The defendant is hereby ordered and/ or directed to execute and/ or sign all the necessary transfer instruments/ documents and facilitate the transfer and registration of the suit property into the names of the Plaintifi within the next thirty (30) days, in default of which the Deputy Registrar shall forthwith execute the same in order to facilitate the transfer.
p. 6final orders - transfer instruments
Each party to bear costs.
p. 6costs order
The plaintifi has by reason of the evidence he adduced orally and through PExhibits that he has satisfied on a balance of probabilities the elements of adverse possession.
p. 6burden of proof discharged
for adverse possession to be established, the claimant should be in occupation of a specific portion of earth for a period and in the manner the law recognizes.
p. 6occupation of specific identifiable portion

Issues in the judgment

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minor

Inconsistent description of the portion claimed - the Originating Summons and prayers describe '1.1/4 Hectares' but the plaintiff testified he bought 'one and a quarter (1.1/4) acre' of the land

minor

The plaintiff's deposition states he bought the suit land from 'the defendant' in one passage though the sale was allegedly from a beneficial occupier who was not the registered proprietor

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, "Mwita v Maroa & another (Enviromental and Land Originating Summons E024 of 2024) [2026] KEELC 98 (KLR)", Case Analysis (2026). Originating Summons dated 22nd August 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/98/eng@2026-01-16

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