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ELCDismissedELC LC NO. E032 OF 2024 (OS)· [2026] KEELC 3318 (KLR)

Kjaer v Hellback & another (Land Originating Summons E032 of 2024) [2026] KEELC 3318 (KLR)

Environment and Land Court
3 June 2026
COChristine Ochieng
3,338 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nairobi court dismissed a landowner's adverse possession claim because she could not prove she had occupied the disputed land openly for the required twelve years.

What this practically means

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Executive summary

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The Plaintiff, Mette Kjaer, brought an Originating Summons against her neighbours, Max and Clementine Hellback, seeking a declaration that their title to approximately 0.053 hectares of LR No. 192/39 had been extinguished by adverse possession, an order registering her as proprietor of that portion, a survey to hive it off, execution of transfer instruments, and costs. She claimed she had occupied the portion since 2004, having mistakenly fenced it, planted a kei-apple hedge, built a water tank, a cottage and a cabro-paved area. The Defendants acknowledged an encroachment but contended it occurred only between 2020 and 2022 during the COVID-19 pandemic while the 1st Defendant was abroad, and denied ever granting permission. The court framed a single issue: whether the Plaintiff proved adverse possession. Applying the Court of Appeal tenets in Mtana Lewa, Titus Mutuku Kasuve and Mate Gitabi, the court held that possession must be open, exclusive, uninterrupted for twelve years, and neither by force, stealth nor licence. The Plaintiff's own cross-examination fixed construction of the cottage and cabro at 2018, undermining her claim of entry in 2004, which the court found implausible. The connecting gate between the properties suggested permissive use, a boundary dispute existed, and the Plaintiff failed to prove the exact date of entry. The court found adverse dealing began around 2018, so only about six years had elapsed when the suit was filed in 2024. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiff proved adverse possession over 0.053 Ha of LR No. 192/39

Holding

Claim failed; occupation was only adverse from about 2018, giving six years by filing, and the exact date of entry was not proved

Reasoning

The court adopted the Court of Appeal tenets that possession must be nec vi, nec clam, nec precario and exclusive, open and uninterrupted for 12 years. PW1's own testimony fixed the cottage and cabro works at 2018, contradicting her claim of entry in 2004. A connecting gate suggested permissive use, and a boundary dispute existed. The burden on a trespasser claiming adverse possession was held to be higher, and it was not discharged.

p. 19
02

When time began running for limitation purposes

Holding

Time began running in 2018 when the Plaintiff began dealing with the land adversely, and stopped on filing in 2024

Reasoning

Cross-examination established that the cottage was built in 2018, guests stayed in 2019 and the cabro was laid in 2018, contradicting the pleaded 2004 entry. The court found the 2004 claim implausible. Since limitation runs from the date of adverse entry which must be proved, only about six years had elapsed when the suit was filed in 2024, short of the twelve years required under Section 7 of the Limitation of Actions Act.

p. 18

Legal principles established

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  • Time in adverse possession runs from the date of adverse entry, which must be precisely pleaded and proved; possession under licence or with the owner's permission does not count

Court orders

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  1. 1.The Plaintiff's Originating Summons is dismissed
  2. 2.Costs of the suit are awarded to the Defendants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Sections 7 and 38 of the Limitation of Actions Act (claim for adverse possession by Originating Summons)

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, "Kjaer v Hellback & another (Land Originating Summons E032 of 2024) [2026] KEELC 3318 (KLR)", Case Analysis (2026). ELC LC NO. E032 OF 2024 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3318/eng@2026-06-03

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