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ELCPartially AllowedNot stated in the judgment text provided· [2026] KEELC 1197 (KLR)

Salim v Chifuka & 9 others (Environment and Land Case 207 of 2014) [2026] KEELC 1197 (KLR)

Environment and Land Court
26 February 2026
3,869 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court in Mombasa evicted eight occupiers from a Port Reitz plot but let two long-time occupants claim ownership through adverse possession.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Plot No. 2403/VI/MN at Port Reitz, Mombasa, sued ten defendants for trespass, seeking a permanent injunction, a mandatory injunction to demolish their structures, and general damages. Four groups of defendants filed defences and counter-claims for adverse possession, asserting occupation since 1970/1972 and that the plaintiff held title in trust for them. The court framed five issues and found the plaintiff proved registered ownership and entitlement to immediate possession, subject to any adverse-possession claims. Only the 4th defendant (Joyce Nthungu, entered 1970) and 8th defendant (Beatrice Mbidyo, entered around 1972) proved adverse possession to the required standard: their possession was open, continuous, exclusive and without the owner's consent, and municipal notices did not interrupt time under the Limitation of Actions Act. The 2nd defendant's claim failed because his church was not on the suit property and it entered only in 1999/2000, within 12 years of the suit; the 3rd, 7th and 9th defendants never testified to prove their counter-claim. The permanent injunction was refused as futile against a completed trespass, but a mandatory injunction to demolish within 60 days, vacant possession with forcible eviction in default, and general damages of Kshs. 200,000/= were granted against the unsuccessful defendants. The 4th and 8th defendants obtained a declaration of adverse possession over their occupied portions, with orders for excision and registration. Costs were not awarded; each party bears their own costs of the suit and counter-claim.

Key legal issues

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01

Whether the plaintiff proved ownership and entitlement to possession

Holding

Yes - registered ownership was proved by documentary evidence and conceded in the defences; he is entitled to immediate possession except against those establishing adverse possession

Reasoning

The plaintiff tendered documentary evidence of registration as proprietor of Plot No. 2403/VI/MN, and the defendants conceded registered ownership in their defences. A registered proprietor is entitled to immediate possession and enjoyment of all rights of ownership unless a defendant demonstrates adverse possession. The plaintiff's claim therefore succeeded against all defendants except the 4th and 8th, who proved adverse possession.

p. 4
02

Whether the 4th and 8th defendants proved adverse possession

Holding

Yes - they entered in the 1970s, openly, continuously and exclusively without the owner's permission for over 12 years

Reasoning

The 4th defendant testified she entered in 1970, corroborated by her daughter (DW2) aged 59 who was born and raised there; the 8th defendant testified she entered around 1972 with children born on the property. The court found them credible. Council notices from 2001 showed permanent structures then existed, contradicting the plaintiff's claim the land was vacant in 2000. Their possession was open, continuous, exclusive and uninterrupted; a notice to vacate does not interrupt possession.

p. 5
03

Whether the 2nd, 3rd, 7th and 9th defendants proved adverse possession

Holding

No - the counter-claim was not proved

Reasoning

The 2nd defendant denied his church stood on the suit property (claiming an adjacent council workshop) and admitted the church entered in 1999 or 2000, so the 12-year period had not expired when the suit was filed in 2010. One cannot claim adverse possession of land one does not occupy. The 3rd, 7th and 9th defendants did not testify or face cross-examination on their counter-claim; mere mention as neighbours by successful defendants does not prove the elements of adverse possession.

p. 6
04

What reliefs should issue on the successful claim and counter-claim

Holding

Mandatory injunction, vacant possession, Kshs. 200,000/= general damages against the unsuccessful defendants; excision and registration of the occupied portions for the 4th and 8th defendants

Reasoning

A permanent injunction was refused as futile against a completed trespass, but a mandatory injunction was granted. Although eviction was not pleaded, the court granted vacant possession to conclusively determine the dispute in line with the overriding objective. The 4th and 8th defendants were entitled only to the portions they occupy, requiring excision by the county surveyor and registration by the land registrar before their titles could issue.

p. 7

Legal principles established

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  • A claimant must prove exclusive, open, uninterrupted possession as of right for 12 years to acquire title by adverse possession
  • A notice to vacate or quit does not constitute an effective assertion of right interrupting the running of time under the Limitation of Actions Act
  • Trespass to land is actionable per se; no proof of particular loss is required for general damages
  • A court may grant an eviction order not specifically pleaded where necessary to render substantive justice and avoid multiplicity of suits

Court orders

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  1. 1.Judgment entered for the plaintiff against the 1st, 2nd, 3rd, 5th, 6th, 7th, 9th and 10th defendants
  2. 2.Mandatory injunction directing those defendants to demolish and remove their structures on Plot No. 2403/VI/MN within 60 days, in default of which the plaintiff may undertake the exercise at their cost
  3. 3.Those defendants to give vacant possession within 60 days, failing which they shall be forcibly evicted
  4. 4.General damages of Kshs. 200,000/= awarded to the plaintiff for trespass to land
  5. 5.Plaintiff's claim against the 4th and 8th defendants dismissed
  6. 6.Judgment entered for the 4th and 8th defendants on their counter-claim: declaration of adverse possession of the portions they occupy
  7. 7.County Surveyor, Mombasa to cause excision of the portions occupied by the 4th and 8th defendants at their cost
  8. 8.Land Registrar to register the 4th and 8th defendants as proprietors of their respective portions upon excision
  9. 9.Plaintiff to sign all necessary forms and instruments to facilitate excision and registration, failing which the Deputy Registrar to do so on his behalf
  10. 10.Each party to bear his own costs of the suit and counter-claim

Authorities

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Legislation

  • Limitation of Actions ActSection 38 (referred in quoted Chevron case)
  • Civil Procedure ActSection 27 (proviso)

Cases cited (12)

  • 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, 21
  • Githu vs Ndeete
    [1984] KLR 776
  • Mwakaki Investments Co. Ltd vs David Gikaria & 3 Others
    [2021] eKLR
  • Gulam Maria Noordin v Charo Karisa
    [2005] eKLR
  • Kamoye vs Tipango & 2 Others
    (Environment & Land Case E011 of 2023) (2024) KEELC 4227 (KLR) (14 May 2024)
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Hostler – VS – Green Park Development Co.
    986 S. W 2d 500 (No. App. 1999)
  • Duncan Nderitu Ndegwa v KP & LC Limited & Another
    (2013) eKLR
  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land (Plot No. 2403/VI/MN), Mombasa; not expressly invoked in the judgment text provided

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, "Salim v Chifuka & 9 others (Environment and Land Case 207 of 2014) [2026] KEELC 1197 (KLR)", Case Analysis (2026). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1197/eng@2026-02-26

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