Mageto v Abdalla (Sued as administratix of Estate of Mariam Ali) (Enviromental and Land Originating Summons 26 of 2020) [2026] KEELC 2357 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved adverse possession
Yes; possession for over 12 years was proved, having taken occupation in 1982 and the 12-year period having elapsed by the time of the 2001 suit
The court found undisputed the Plaintiff's presence on the land and her entry under a sale agreement with the deceased. The defence case of a 10ft by 10ft gift was unsupported by documents. The deceased's own affidavit in HCC OS 146 of 2001 acknowledged payment of Kshs 2000. Suits were initiated by the Plaintiff, so time did not stop running.
Whether the sale agreement bearing a thumbprint was executed by Mariam Ali
Yes; the defence produced no evidence to displace the thumbprint
The defence asserted the deceased did not sign the agreement but led no affirmative evidence that the thumbprint was not hers. The deceased's own affidavit filed in HCC OS 146 of 2001 acknowledged receipt of Kshs 2000 from the Plaintiff, corroborating the transaction without taking steps to dispute the agreement's authenticity.
The size of the land acquired by adverse possession
25ft by 100ft, per the sale agreement and the Plaintiff's oral testimony, not the 50ft by 100ft claimed in the pleadings
The pleadings and the survey report claimed 50ft by 100ft (0.04ha), contradicting the Plaintiff's own oral evidence that her claim was the 25ft by 100ft in the sale agreement, and the earlier survey report in the succession cause describing 230 square metres (0.023ha). The survey report was used only to confirm ground possession.
Whether occupation was permissive
No, beyond the 10ft by 10ft alleged; the Defendant had no documents supporting the gift/permission claim
The Defendant asserted the deceased allowed the Plaintiff a 10ft by 10ft portion for a kiosk and that Kshs 2000 was a token, but admitted in cross-examination she had no document to support this. The Plaintiff's occupation — house, bananas, avocados, firewood business — was undisputed and exceeded that portion.
Legal principles established
#- A claim of adverse possession can only be maintained against a registered owner and time under Section 7 of the Limitation of Actions Act runs only against a registered owner
- Filing suits by the alleged paper owner's estate does not stop time running where no claim for removal of the possessor was raised
- A thumbprint on a sale agreement with no rebutting evidence affirms the seller's execution of the agreement
Court orders
#- 1.Declaration that the Plaintiff has acquired by adverse possession a portion of L.R No. West Kitutu/Bugisero/2533 measuring 25ft by 100ft which she is already in occupation of
- 2.The said portion of approximately 25ft by 100ft be sub-divided and title issued in favour of the Plaintiff
- 3.Order restraining the Defendant, her agents, servants or anyone acting under her instructions from interfering with the Plaintiff's peaceful possession and occupation of the said 25ft by 100ft portion
- 4.The administratrix of Mariam Ali-deceased to sign all requisite documents and forms within 45 days of the judgment to facilitate the transfer, with the Plaintiff to meet the cost of subdivision and transfer
- 5.In default, the Deputy Registrar of the court to execute the transfer instruments and attendant documents
- 6.Costs of the amended originating summons to be borne by the defendant
- Jurisdiction invoked
- Original jurisdiction under the Limitation of Actions Act (Cap 22) over a claim for adverse possession of registered land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mageto v Abdalla (Sued as administratix of Estate of Mariam Ali) (Enviromental and Land Originating Summons 26 of 2020) [2026] KEELC 2357 (KLR)", Case Analysis (2026). Amended Originating Summons dated 27th July, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2357/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.