Kimongo v Sotuan & another (Environment and Land Case E015 of 2024) [2026] KEELC 164 (KLR)
The bottom line
#A registered Kenyan landowner defeated an adverse possession counter-claim because the occupants couldn't prove open, notorious occupation, though she recovered no damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved proprietorship of Transmara/Shartuka/722
The plaintiff proved ownership by producing a copy of her title deed and an official search; the Defendants neither pleaded fraud nor led evidence under the section 26 exceptions to indefeasibility.
Sections 24, 25 and 26 of the Land Registration Act vest absolute ownership in a registered proprietor and make the certificate of title conclusive evidence of ownership, challengeable only on grounds of fraud or misrepresentation, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The Defendants did not plead fraud and adduced no evidence bringing the title within those exceptions; they instead rested on adverse possession. Ownership was therefore proven.
Whether the Defendants' defence and counter-claim of adverse possession should be upheld
Dismissed; the Defendants failed to prove the elements of adverse possession, particularly open and notorious occupation and the requisite 12-year period.
Applying the elements distilled in Andafu v Akhuoya, the court found the counter-claimers led no evidence of when their occupation began or of community knowledge of their occupation. Their survey report (D.Exhibit 5) was rejected for contradictions and oral amendments made during trial, and having been prepared without the plaintiff or the area chief it had no evidential value. No neighbour, chief or community member was called. Once the open-and-notorious element failed, the court declined to inquire into the other elements.
What reliefs ought to issue
Judgment for the plaintiff for injunction, declaration of ownership and eviction, but special damages declined.
The plaintiff having proven proprietorship and the counter-claim having failed, judgment followed for the plaintiff. The court relied on the court-ordered survey report of the District Surveyor and Land Registrar dated 25.07.2025, which showed the parcel was displaced on map sheet No. 3, and ordered the Land Registrar and Sub-county Surveyor to amend the RIM accordingly. Special damages were expressly declined.
Legal principles established
#- Registration vests absolute ownership; a certificate of title is conclusive evidence of proprietorship and can only be challenged on the grounds in section 26(1)(a) or (b) of the Land Registration Act.
- A party asserting adverse possession bears the burden of proving the elements thereof, including open and notorious occupation, under section 107 of the Evidence Act.
- A court is not bound to accept expert (surveyor) evidence where it is contradictory; expert evidence must be weighed with all other evidence and the trial court must give reasons for its decision on it.
Court orders
#- 1.Judgment entered for the plaintiff for the reliefs sought in the Plaint dated 4th June 2024 being prayers (i), (ii), (iii) and (iv) thereof (permanent injunction, declaration of ownership, eviction); the prayer for special damages declined
- 2.The Land Registrar and Sub-county Surveyor, Transmara East, West and South to amend the RIM of Shartuka registration section so as to reflect the correct position of Transmara/Shartuka/772 on the ground in accordance with their reports dated 25.07.2025
- 3.No orders of costs in relation to this suit
- Jurisdiction invoked
- Original civil jurisdiction over land (Environment and Land Court Act); suit on trespass, ownership of Transmara/Shartuka/722 and a counter-claim in adverse possession by way of Originating Summons
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimongo v Sotuan & another (Environment and Land Case E015 of 2024) [2026] KEELC 164 (KLR)", Case Analysis (2026). not stated in judgment (Kilgoris ELC suit; Plaint dated 4th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/164/eng@2026-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.