Ndereba & 4 others v Kaburunga (Enviromental and Land Originating Summons E007 of 2025) [2026] KEELC 623 (KLR)
The bottom line
#A Kenyan family won 3 acres of land after occupying it openly since 1976, proving long occupation defeats a registered owner's title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved occupation and possession of 3 acres of the suit property under a claim of adverse possession
Yes - the Plaintiffs proved open, continuous and uninterrupted occupation of a demarcated 3-acre portion since 1976, adverse to the Defendant's interests, and their claim to adverse possession succeeded.
The sale agreement of 23.10.1976 (exhibit P3) captured the sale of 3 acres, not 1 acre as the Defendant alleged. The Defendant conceded the sale but could not produce his own copy of the agreement, and the defence witnesses were evasive and contradictory. All four defence witnesses confirmed the Plaintiffs' occupation for over 30 years, and even the defence confirmed the portion was well demarcated on the ground. The Defendant never took steps to recover possession, so his right was extinguished under Section 7 of the Limitation of Actions Act.
Whether adverse possession can be claimed over a portion, rather than the whole, of a registered property
Yes - adverse possession can be claimed over an identifiable portion of land, provided the claimant evidences occupation of the identifiable, demarcated portion.
Relying on Mwangi Githu v Livingstone Ndeete, the court held that the fact that the claim relates only to a portion of the property does not defeat the claim. Fencing off or clear demarcation is the best evidence of possession of surface land; cultivation without fencing has also been held sufficient. The Plaintiffs' 3-acre portion was delineated on the ground, confirmed by both sides' witnesses, and corroborated by the Chief Magistrate's Court ruling in LDT Case Number 57 of 2005.
What reliefs flow from a proven claim of adverse possession over a portion of the suit property
The Plaintiffs are entitled to declarations of adverse possession and extinguishment of the Defendant's rights, rectification of title by excision of 3 acres, an order compelling subdivision and transfer, and a permanent injunction.
Having proved the claim, the Plaintiffs were granted a declaration of adverse possessory rights over the 3 acres, a declaration that the Defendant's rights over that portion are extinguished, and rectification of the Defendant's title with excision of the 3 acres so the fruits of the judgment can be actualized. The Defendant was ordered to subdivide and transfer within 45 days, failing which the Deputy Registrar may execute the necessary instruments, and a permanent injunction issued against interference with the portion.
Legal principles established
#- A claimant seeking a declaration of adverse possession must demonstrate open, continuous and uninterrupted occupation; where the claim relates to a portion of the property, the portion must be identifiable, discernable and well demarcated on the ground.
- A registered owner who takes no steps to recover possession within the limitation period is dispossessed, and his right to the land is extinguished.
Court orders
#- 1.A declaration that the Plaintiffs have acquired a portion measuring 3 acres out of L R No. Kiirua/Ruiri/878 by way of adverse possession
- 2.A declaration that the Defendant's rights to and interests over the portion measuring 3 acres of L R No. Kiirua/Ruiri/878 are extinguished
- 3.Rectification of the Defendant's title by excision of 3 acres, to be transferred to and registered in the names of the Plaintiffs
- 4.The Defendant to subdivide the suit property into two portions and transfer the 3-acre portion occupied by the Plaintiffs to them
- 5.Sub-division to be undertaken within 45 days from the date of the judgment
- 6.In default of sub-division, the Deputy Registrar of the court is empowered to execute the necessary instruments to facilitate the transfer
- 7.An order of permanent injunction restraining the Defendant, his agents, servants and employees from interfering with, trespassing onto, entering on or dealing with the 3-acre portion belonging to and occupied by the Plaintiffs
- 8.Costs of the suit awarded to the Plaintiffs, to be agreed and in default taxed in the conventional manner
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act, Chapter 22 Laws of Kenya; and Articles 10, 24 and 159 of the Constitution 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndereba & 4 others v Kaburunga (Enviromental and Land Originating Summons E007 of 2025) [2026] KEELC 623 (KLR)", Case Analysis (2026). Originating Summons dated 25.03.2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/623/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.