Salim v Chifuka & 9 others (Environment and Land Case 207 of 2014) [2026] KEELC 1197 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff proved ownership and entitlement to possession
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
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.
Whether the 4th and 8th defendants proved adverse possession
Yes - they entered in the 1970s, openly, continuously and exclusively without the owner's permission for over 12 years
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.
Whether the 2nd, 3rd, 7th and 9th defendants proved adverse possession
No - the counter-claim was not proved
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.
What reliefs should issue on the successful claim and counter-claim
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
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.
Legal principles established
#- 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
#- 1.Judgment entered for the plaintiff against the 1st, 2nd, 3rd, 5th, 6th, 7th, 9th and 10th defendants
- 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.Those defendants to give vacant possession within 60 days, failing which they shall be forcibly evicted
- 4.General damages of Kshs. 200,000/= awarded to the plaintiff for trespass to land
- 5.Plaintiff's claim against the 4th and 8th defendants dismissed
- 6.Judgment entered for the 4th and 8th defendants on their counter-claim: declaration of adverse possession of the portions they occupy
- 7.County Surveyor, Mombasa to cause excision of the portions occupied by the 4th and 8th defendants at their cost
- 8.Land Registrar to register the 4th and 8th defendants as proprietors of their respective portions upon excision
- 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.Each party to bear his own costs of the suit and counter-claim
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.