Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC NO. E033 OF 2025 (OS)· [2026] KEELC 2778 (KLR)

Tsuma v Sheikh Mohamed Bin Ali & Brothers Limited (Environment and Land Case E033 of 2025) [2026] KEELC 2778 (KLR)

Environment and Land Court
29 April 2026
1,941 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court gave a family 14 acres they had occupied openly for over 40 years, because the registered owner never evicted them or proved they were staying with permission.

What this practically means

#

Executive summary

#
By an Originating Summons dated July 14, 2025 under Sections 7, 13, 17 and 38(1) of the Limitation of Actions Act, Cap 22, the applicant sought declarations that he had acquired fourteen (14) acres comprising Plot No. 5662, Malindi in Kivulini area, Kilifi County, by adverse possession, together with an order directing the Land Registrar to register him as proprietor, and costs. He claimed to have entered and occupied the land in or about 1980, openly, peacefully and continuously for over forty years, planting trees over twelve years old. The respondent, registered proprietor since a transfer completed on 3rd May 1993, did not dispute the occupation but contended it was with the permission and licence of the respondent and its predecessor in title, one Leah Waiyigo Njaramba. Both sides cited authorities on the elements of adverse possession, notably the requirement of occupation nec vi, nec clam, nec precario, plus animus possidendi. Applying Samuel Kihambo v Mary Mbaisi, Solomon Muathe Mitau v Nguni Group Ranch, Wambua v Nguni Group Ranch and Chevron (K) Ltd v Harison Charo Wa Shutu, Makori J held that the only dispute was whether the occupation was permissive; finding nothing on record showing permission from either the predecessor or successor in title, and no steps taken to evict since 1993, the court held the doctrine of adverse possession had set in. The Originating Summons succeeded in full: declarations of adverse possession and extinguishment of the respondent's title, an order to the Land Registrar, Kilifi County, to register the applicant, and costs to the applicant.

Key legal issues

#
01

Whether the applicant's occupation was adverse or permissive

Holding

The court found the occupation was adverse: there was nothing on record showing permission was accorded by either the predecessor or successor in title, and the mere fact of regular visits did not amount to permission.

Reasoning

The respondent did not dispute the applicant's occupation since the 1980s; the dispute was only whether the stay was permissive. The title and transfer were completed on 3rd May 1993 while the applicant was in occupation, and neither the predecessor nor successor took any action to evict. The burden of proving permission lay on the party asserting it, and the respondent failed to discharge it.

p. 10
02

Whether the requisite limitation period had elapsed

Holding

The occupation exceeded twelve years and indeed forty years, so the respondent's title was extinguished under Section 17 of the Limitation of Actions Act.

Reasoning

The applicant entered the land in or about 1980 and remained in peaceful, open and uninterrupted possession. The respondent purchased in 1993 while the applicant was in possession and has taken no action to evict since. Applying Samuel Kihambo v Mary Mbaisi and the authorities on when time begins to run, the court held the doctrine of adverse possession was triggered and the statutory period long exceeded.

p. 7

Legal principles established

#
  • For adverse possession, the claimant must prove open occupation without force, secrecy or permission, with animus possidendi, and apparent dispossession of the true owner (nec vi, nec clam, nec precario).
  • Where a purchaser acquires registered land while a person is already in occupation and takes no steps to evict, time runs against the purchaser and the doctrine of adverse possession sets in once the limitation period expires.
  • In respect of registered land, adverse possession dates from the granting of the certificate of title, when the title holder becomes prima facie entitled to possession.

Court orders

#
  1. 1.A declaration that the applicant has acquired fourteen (14) acres comprised in Plot No. 5662 Malindi by adverse possession
  2. 2.A declaration that the respondent's title to the said fourteen acres has been extinguished under Section 17 of the Limitation of Actions Act
  3. 3.An order under Section 38 directing the Land Registrar, Kilifi County, to register the applicant as proprietor of the said fourteen (14) acres
  4. 4.Costs of the suit to the applicant

Authorities

#

Legislation

  • Limitation of Actions ActSections 7, 13, 17, 38(1)
  • Land Registration ActSection 3(a)

Cases cited (11)

  • Peter Kamau Njau v Emmanuel Charo Tinga
    [2016] eKLR
  • Wambugu v Njuguna
    [1983] KLR 171
  • Jandu v Kirpal & Another
    [1975] EA 225
  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR
  • Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Samuel Kihambo v Mary Mbaisi
    [2015] eKLR
  • Margaret Njeri Wachira v Eliud Waweru Njenga
    [2018] eKLR
  • Kiplangat Shelisheli Mutarakwa v Joseph Rotich Kones
    [2018] eKLR
  • Solomon Muathe Mitau & 787 others v Nguni Group Ranch
    (2017) eKLR
  • Wambua & 6 others v Nguni Group Ranch
    [2023] KEELC 1768 (KLR) (25 May 2023) (Judgment)
  • Chevron (K) Ltd v Harison Charo Wa Shutu
    (2016) eKLR
Jurisdiction invoked
Sections 7, 13, 17 and 38(1) of the Limitation of Actions Act, Cap 22, by Originating Summons under the Environment and Land Court's original jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tsuma v Sheikh Mohamed Bin Ali & Brothers Limited (Environment and Land Case E033 of 2025) [2026] KEELC 2778 (KLR)", Case Analysis (2026). ELC NO. E033 OF 2025 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2778/eng@2026-04-29

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