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ELCAllowedOriginating Summons dated 6th April 2022 (as amended 18th March 2024)· [2026] KEELC 2341 (KLR)

Mwasi & 14 others v Salim & another (Environment and Land Case Civil Suit E036 of 2022) [2026] KEELC 2341 (KLR)

Environment and Land Court
24 April 2026
21,381 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~86 min to read original · ~4 min brief

The bottom line

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The Mombasa Environment and Land Court gave 15 families ownership of a 5.5-acre Mombasa plot after 40+ years of open occupation, ruling an unregistered Wakf cannot defeat adverse possession.

What this practically means

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Executive summary

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Fifteen plaintiffs brought an Originating Summons under Sections 37 and 38 of the Limitation of Actions Act claiming ownership of Title No. C.R. 2006 Plot No. MN/II/80 (approximately 5.50 acres) by adverse possession, seeking a declaration of ownership, cancellation of the defendants' registration, an order to serve as an instrument of transfer, and a permanent injunction. The defendants, who held the property as trustees of a Wakf created by a 1954 deed, maintained the plaintiffs were rent-paying tenants in arrears and that adverse possession cannot accrue against Wakf property. Three plaintiffs gave evidence; three others (the 8th, 14th and 15th) withdrew through consents. The court framed five issues: merit of the suit, entitlement to levy distress, validity of the Wakf, entitlement to reliefs, and costs. It held the plaintiffs had occupied openly, peacefully and hostilely for over twelve years since ceasing rent payments in 1999-2001; that demand letters and distress did not interrupt limitation because the defendants never sued or effectively re-entered; that recovery of rent arrears was barred after six years under Section 8; and that the Wakf was invalid for non-registration with the Wakf Commissioners under Sections 3 and 10 of Cap. 109, the corroborating 2019 letter and the 2017 Taskforce Report outweighing the later 2024 letter. All reliefs were granted, the distress claim declared unlawful and time-barred, and the defendants ordered to bear the costs.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession for over 12 years

Holding

Yes - occupation was open, peaceful, uninterrupted and hostile for more than twelve years; title of the Defendants extinguished

Reasoning

The Plaintiffs occupied for over forty years, ceased paying ground rent in 1999-2001, built permanent structures and sublet premises, all inconsistent with the Defendants' ownership. The Defendants never sued or evicted within twelve years; demand letters and distress do not interrupt limitation. The statutory ingredients under Sections 7, 13, 17 and 38 of the Limitation of Actions Act were satisfied.

02

Whether the suit property is validly Wakf land immune from adverse possession

Holding

No - the Wakf was never registered with the Wakf Commissioners under Cap. 109 and is therefore invalid

Reasoning

The Act came into force on 8th June 1951 and required mandatory registration of all Wakf under Sections 3 and 10(1). Registration at the Lands Registry alone does not suffice. The 2017 Attorney General's Taskforce Report omitted the property, and the 2019 Wakf Commission letter confirmed non-registration. The later 2024 letter, written while the suit was pending, carried diminished probative value.

p. 36
03

Whether the Defendants can levy distress for rent arrears

Holding

No - recovery of arrears and distress are time-barred after six years under Section 8

Reasoning

The Plaintiffs stopped paying rent around 1999-2001. The Defendants showed no timely legal step preserving their right to distress; demand letters, chief's meetings and proclamations are not legal proceedings or effective entry. Once occupation ripened into adverse possession, any distress became wrongful and ineffective.

p. 35

Legal principles established

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  • Wakf registration with the Wakf Commissioners under Cap. 109 is mandatory and failure to register renders a Wakf invalid, so adverse possession may accrue against such a parcel
  • Mere demand letters or distress do not interrupt time under adverse possession; the owner must make effective entry or sue
  • Recovery of rent arrears and distress are statute-barred after six years under Section 8 of the Limitation of Actions Act

Court orders

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  1. 1.Judgment entered in favour of the Plaintiffs in accordance with their Amended Originating Summons dated 18th March 2024
  2. 2.A declaration that the Plaintiffs have acquired ownership of Title No. C.R. 2006 Plot No. MN/II/80 measuring approximately 5.50 acres by way of adverse possession
  3. 3.The Land Registrar, Mombasa directed to cancel and/or extinguish the Defendants' ownership registration and issue title in the names of the Plaintiffs
  4. 4.The order of the Court to serve as an instrument of transfer of ownership of the suit property from the Defendants to the Plaintiffs
  5. 5.A permanent injunction restraining the Defendants from entering, interfering with, trespassing upon or disturbing the Plaintiffs' quiet possession and enjoyment of the suit property
  6. 6.The Defendants' claim to levy distress for rent arrears declared unlawful and time-barred under Section 8 of the Limitation of Actions Act
  7. 7.The Defendants' assertion that the suit property is validly Wakf land dismissed, the property never having been registered under the Wakf Commissioners Act, Cap 109
  8. 8.Costs of the suit borne by the Defendants
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act, Cap. 22; Order 37 of the Civil Procedure Rules, 2010

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, "Mwasi & 14 others v Salim & another (Environment and Land Case Civil Suit E036 of 2022) [2026] KEELC 2341 (KLR)", Case Analysis (2026). Originating Summons dated 6th April 2022 (as amended 18th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2341/eng@2026-04-24

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