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ELCDismissedNakuru ELC Originating Summons (unnumbered in judgment; dated 20th August 2021)· [2026] KEELC 1217 (KLR)

Assemblies of Christ Evangelical Holiness Church - Kenya (Suing through its registered Trustees Bishop Francis Ranogwa & Bishop John Sereka) v Machoka & another (Enviromental and Land Originating Summons E016 of 2021) [2026] KEELC 1217 (KLR)

Environment and Land Court
3 March 2026
MOM. A. Odeny
4,418 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Nakuru church lost its claim to land it occupied for decades because its own negotiations and agreements proved it stayed with the owner's consent, not against it.

What this practically means

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Executive summary

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The Plaintiff church, by Originating Summons dated 20th August 2021, sought a declaration that it had acquired LR No. Nakuru Municipality Block 24/753 by adverse possession since 1997, an order directing the Land Registrar Nakuru to register it as proprietor in place of Isaac Kipkemboi Towett, and costs. The church claimed it had mistakenly built on plot 753 while intending to buy plot 751, entered an exchange agreement dated 11th June 1997 with Lawrence Mburu (the then owner), and had worshiped on the land openly since 1997, paying utility bills. The 1st Defendant, John Machoka, testified he bought plot 753 in 1997 from Lawrence Mburu, found the church's temporary structures on it, negotiated with the pastors who later demanded Kshs.200,000 for the structures, and sold the plot in 2021 for Kshs.4.6 million to the 2nd Defendant, Towett, a bona fide purchaser for value who took registration on 16th June 2021. Both Defendants argued the occupation was permissive, never hostile, and that the Plaintiff at all times sought permission or compensation. The court, M. A. Odeny J, applying Section 7 and 13 of the Limitation of Actions Act and the nec vi, nec clam, nec precario standard, held that the mistaken entry, the exchange agreement, and the negotiations to remain on the land or be compensated demonstrated consent-based, permissive occupation - the opposite of adverse possession. The court declined to interrogate whether 12 years had run, finding the occupation neither peaceful, uninterrupted nor hostile. The Originating Summons was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiff's occupation of Nakuru Municipality Block 24/753 amounted to adverse possession

Holding

No - the occupation was permissive and consensual, following a mistaken entry, an exchange agreement, and later negotiations with the Defendants to remain or be compensated; it was therefore not hostile or adverse to the owners' title

Reasoning

The court found the church mistakenly built on plot 753 while purporting to buy plot 751, then entered an exchange agreement with Lawrence Mburu and later negotiated with both Defendants for continued occupation or compensation of Kshs.200,000. These acts showed the Plaintiff's possession was by consent, seeking permission and consideration rather than asserting title in denial of the true owner. Such permissive occupation is fundamentally inconsistent with adverse possession, so the statutory 12-year period never ran against the owners.

p. 8
02

Whether transfer of the suit land and change of title extinguish a claim of adverse possession

Holding

Not decided - the court declined to reach the subsidiary issues since the possession was consensual

Reasoning

Counsel for the Plaintiff argued, relying on Wilson Njoroge Kamau v Nganga Muceru Kamau and Michael Mungai Ngángá v Paul Kiprotich Bii, that a mere transfer does not extinguish a lapsed adverse possession claim. However, the court stated it would not examine the statutory period or related issues because the Plaintiff's own conduct showed consent-based occupation that was never uninterrupted. The issue was therefore left unresolved on the facts.

p. 9

Legal principles established

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  • The doctrine of adverse possession does not apply where possession is by consent or permission of the registered owner
  • A party claiming adverse possession must prove possession that is peaceful, open and continuous - nec vi, nec clam, nec precario - and hostile to the owner's title

Court orders

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  1. 1.The Plaintiff's Originating Summons dated 20th August 2021 is dismissed
  2. 2.Costs of the suit awarded to the Defendants
Jurisdiction invoked
Original jurisdiction under Sections 7, 13 and 38 of the Limitation of Actions Act (Cap 22) for a declaration of adverse possession; Section 38 application to the High Court as continued in the Environment and Land Court

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, "Assemblies of Christ Evangelical Holiness Church - Kenya (Suing through its registered Trustees Bishop Francis Ranogwa & Bishop John Sereka) v Machoka & another (Enviromental and Land Originating Summons E016 of 2021) [2026] KEELC 1217 (KLR)", Case Analysis (2026). Nakuru ELC Originating Summons (unnumbered in judgment; dated 20th August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1217/eng@2026-03-03

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