Tsuma v Sheikh Mohamed Bin Ali & Brothers Limited (Environment and Land Case E033 of 2025) [2026] KEELC 2778 (KLR)
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
#Key legal issues
#Whether the applicant's occupation was adverse or permissive
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.
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.
Whether the requisite limitation period had elapsed
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.
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.
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.A declaration that the applicant has acquired fourteen (14) acres comprised in Plot No. 5662 Malindi by adverse possession
- 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.An order under Section 38 directing the Land Registrar, Kilifi County, to register the applicant as proprietor of the said fourteen (14) acres
- 4.Costs of the suit to the applicant
- 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.