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ELCDismissedOriginating Summons dated 22nd April 2024· [2026] KEELC 3322 (KLR)
Kipkoech & another v Coast Spinners Limited & another (Enviromental and Land Originating Summons E001 of 2024) [2026] KEELC 3322 (KLR)
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·~8 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#By an Originating Summons dated 22nd April 2024, Peter Kipkoech and Pharos Chemos Kirui sought a declaration that the title of Coast Spinners Limited to Section 1 Mainland North/1882, situated on Greenwood Drive, Nyali Estate, Mombasa, stood extinguished by their adverse possession of over twelve years, and an order that the Chief Land Registrar register them as joint proprietors. They asserted continuous, uninterrupted occupation with their families since 2011/2012, having found one Darius Mogunde on the property who later relocated to Nairobi. The 1st Respondent denied the claim, stating it acquired the property in 1980, leased it from 2010 to Big Apple Tours & Safaris Limited until September 2012, and thereafter engaged Samanje Guards Limited to guard it until 2016. Both parties called two witnesses each. Applying Section 38 of the Limitation of Actions Act and the Court of Appeal's articulation of the elements of adverse possession, the Court found the Applicants' account that they simply walked into the house improbable, held that photos of family members and birth certificates could not prove possession, and found the lease correspondence and security contract demonstrated the Applicants could not have been in exclusive occupation between 2011 and 2012. The Originating Summons was dismissed with costs to the 1st Respondent.
Key legal issues
#01
Whether the Applicants proved adverse possession of Section 1 Mainland North/1882 for over twelve years
Holding
The claim fails; the Applicants did not prove permissive-free, open, continuous and exclusive occupation for twelve years
Reasoning
The Applicants' account that they simply walked into the house and started living there was not credible. The 1st Respondent's correspondence showed the property was leased to Big Apple Tours & Safaris Limited from January 2010 until September 2012, and thereafter guarded by Samanje Guards Limited until 31st December 2016, when it was handed back vacant. Photos and birth certificates were held insufficient proof of possession.
p. 4
Legal principles established
#- For one to succeed in a claim of adverse possession, the claimant must prove that entry was without the permission of the registered owner and that occupation was open and continuous for a period of twelve years to the exclusion of the registered owner
- Possession for purposes of adverse possession must be non-permissive, actual, open, notorious, exclusive and uninterrupted for twelve years (nec vi nec clam nec precario)
Court orders
#- 1.The Originating Summons dated 22nd April 2024 is dismissed with costs to the 1st Respondent
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act, Cap 22 - application to the High Court for an order that the adverse possessor be registered as proprietor
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkoech & another v Coast Spinners Limited & another (Enviromental and Land Originating Summons E001 of 2024) [2026] KEELC 3322 (KLR)", Case Analysis (2026). Originating Summons dated 22nd April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3322/eng@2026-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.