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ELCPartially AllowedNot stated in judgment (plaint dated 11.05.2023; reference to earlier Mombasa ELC No. 128 of 2010)· [2026] KEELC 1144 (KLR)

Durahard Limited v Mbarak & 3 others (Environment and Land Case E043 of 2023) [2026] KEELC 1144 (KLR)

Environment and Land Court
26 February 2026
3,115 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Mombasa court took land away from its registered titleholder because the owner waited too long—twelve years—to sue, handing possession rights to long-term occupiers.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Plot No. 1241/I/MN, sued for a declaration of ownership, a permanent injunction, and vacant possession, alleging the defendants were trespassers who had occupied without paying rent since the plaintiff's 1997 purchase. Only the 2nd and 4th defendants filed a defence and counter-claim, pleading that the claim was statute-barred under Section 7 of the Limitation of Actions Act and that they had acquired adverse possession of the portions they occupied. The court framed five issues and found that although the plaintiff held a certificate of title, its cause of action accrued in 1997, no tenancy existed, and the twelve-year limitation period expired around 2009 - extinguishing the right of action before the 2023 suit. Applying Kasuve vs Mwaani Investments and Chevron (K) Ltd vs Harrison Charo Wa Shutu, the court found the 2nd and 4th defendants had proved open, continuous, exclusive possession without permission, evidenced by erecting additional structures, opening an access road and inviting third parties, demonstrating animus possidendi. Notices to vacate did not interrupt limitation, following Githu vs Ndeete. Prior suits (ELC No. 128 of 2010 and No. 121 of 2020) did not assist the plaintiff as pleadings and outcomes were not produced. Invoking Gulam Maria Noordin vs Charo Karisa, the court declined to penalize the defendants for inelegant drafting and granted declarations that they were entitled to registration of the portions they occupy (0.16688ha and 0.1314ha), with registration orders to the land registrar, Mombasa. The plaintiff's suit was dismissed and each party was ordered to bear its own costs, the judge reasoning that the defendants had occupied the property free of charge for many years and should forgo their costs.

Key legal issues

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01

Whether the plaintiff's claim for recovery of land was statute-barred under Section 7 of the Limitation of Actions Act

Holding

The plaintiff's cause of action accrued in 1997 upon purchase; no tenancy existed; the limitation period expired around 2009, extinguishing the right of action before suit

Reasoning

The plaintiff bought the suit property in 1997 with the defendants already in occupation, treated them as trespassers and admitted they never paid rent. The court found no lease or tenancy relationship, so the twelve-year period under Section 7 ran from 1997 and expired about 2009, before the 2023 suit. The plaintiff's right of recovery was therefore extinguished by operation of law.

p. 4
02

Whether the 2nd and 4th defendants proved adverse possession of the portions they occupy

Holding

Yes. The defendants proved exclusive, open, continuous possession for over twelve years without permission, with acts inconsistent with the plaintiff's title, and without legal interruption

Reasoning

Applying Kasuve vs Mwaani Investments and Chevron (K) Ltd vs Harrison Charo Wa Shutu, the court found the defendants entered before 1997, occupied openly, exclusively and continuously without the plaintiff's consent, erected additional structures, opened an access road and invited third parties, demonstrating animus possidendi. Notices to vacate did not legally interrupt possession since no effective entry or suit was proved.

p. 5
03

Whether the court could grant registration orders despite the counter-claim lacking particulars of acreage and a specific prayer for registration

Holding

Yes. The court is empowered to grant the remedies which naturally flow from the success of the counter-claim, relying on Gulam Maria Noordin vs Charo Karisa

Reasoning

The defendants did not plead the size or acreage of the portions claimed nor specifically seek registration, relying only on a surveyor's report. Following the Court of Appeal's expansive approach in Gulam Maria Noordin vs Charo Karisa, the court held that substantive justice allows orders flowing from a finding of adverse possession, and granted declarations and registration orders for the surveyed portions.

p. 6
04

Whether the plaintiff's earlier proceedings (Mombasa ELC No. 128 of 2010 and ELC No. 121 of 2020) affected the claim

Holding

No demonstration that the plaintiff was a party to ELC No. 121 of 2020 or how it was determined; pleadings and outcome were not produced, so it could not interrupt limitation

Reasoning

The plaintiff relied on prior suits, but the pleadings and final result of Mombasa ELC No. 121 of 2020 (Juma Khamis & Others vs Mukesh Shah & Others) were not produced, nor the plaintiff's capacity of participation. Moreover, since the plaintiff's right of action expired in 2009, any claim or counter-claim filed thereafter would itself be statute barred and incapable of interrupting limitation.

p. 5

Legal principles established

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  • A registered proprietor is ordinarily entitled to immediate possession unless the right to recovery is statute-barred or otherwise lawfully justified
  • A trespasser's possession is interrupted only by the owner's peaceful and effective entry or by initiation of legal proceedings; mere notices to quit do not stop time running under the Limitation of Actions Act
  • A party is not disentitled from appropriate remedies flowing from a successful adverse possession claim on account of inelegant drafting of the counter-claim

Court orders

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  1. 1.The plaintiff's suit against all the defendants is hereby dismissed
  2. 2.A declaration that the 2nd defendant has become entitled to be registered as proprietor of a portion of 0.16688ha out of Plot No. 1241/I/MN in his occupation on account of the doctrine of adverse possession
  3. 3.A declaration that the 4th defendant is entitled to be registered as proprietor of the portion of 0.1314ha out of plot No. 1241/I/MN in his occupation on account of the doctrine of adverse possession
  4. 4.The land registrar, Mombasa shall cause the 2nd defendant to be registered as proprietor of the portion of 0.16688 ha out of plot No. 1241/I/MN
  5. 5.The land registrar, Mombasa shall cause the 4th defendant to be registered as proprietor of the portion of 0.1314 ha out of plot No. 1241/I/MN
  6. 6.Each party shall bear its own costs of both the suit and counter-claim

Authorities

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Legislation

  • Limitation of Actions ActSection 7 (Cap 22)
  • Limitation of Actions ActSection 38(1) (Cap 22)
  • Civil Procedure ActSection 27 (Cap 21, proviso)
  • Appellate Jurisdiction ActSection 3(2)

Cases cited (8)

  • Kasuve vs Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Wanja vs Sakwa No.2
    [1984] KLR 284
  • Chevron (K) Limited –vs- Harrison Charo Wa Shutu
    [2016] eKLR
  • Littledale v Liverpool College
    (1900) 1 Ch.19
  • Githu vs Ndeete
    [1984] KLR 776
  • Gulam Maria Noordin vs Charo Karisa
    [2015] eKLR
  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
  • Juma Khamis & Others vs Mukesh Shah & Others (Mombasa ELC No.121 of 2020)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property and claims in land (plaint dated 11.05.2023; no specific constitutional provision invoked)

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, "Durahard Limited v Mbarak & 3 others (Environment and Land Case E043 of 2023) [2026] KEELC 1144 (KLR)", Case Analysis (2026). Not stated in judgment (plaint dated 11.05.2023; reference to earlier Mombasa ELC No. 128 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1144/eng@2026-02-26

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