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ELCDismissedELC 153 of 2018 (OS)· [2026] KEELC 3378 (KLR)

Chege v Githiomi (Personal representative in the Estate of James Njenga Githiomi) & 2 others (Enviromental and Land Originating Summons 153 of 2018) [2026] KEELC 3378 (KLR)

Environment and Land Court
28 May 2026
4,035 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a Kenyan adverse possession claim because the occupier had entered the land with the owner's permission, and permission defeats such claims.

What this practically means

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Executive summary

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By an amended originating summons under Sections 7, 13, 17 and 38 of the Limitation of Actions Act, the Plaintiff sought a declaration that he had been in adverse possession of a portion of LR Ngong/Ngong/8592 (Ngong/Ngong/27540) for over twelve years, that the registered owner's title stood extinguished, and an order directing the County Lands Registrar, Kajiado, to transfer the parcel to him. The Defendants, the legal representative of the estate of James Njenga Githiomi, and the Interested Party, David Salim Mwarangu Githiomi, denied the claim, asserting that the Plaintiff had been allowed into the servant's quarters as an act of humanitarian assistance by Rachel Mumbi Kigunda, the Interested Party's agent, while he was in the United States, and that the Interested Party sued for rent arrears and vacant possession in Ngong PMCC Misc. Application No. 20 of 2018. The court framed two issues: whether adverse possession was proved, and costs. Applying Mtana Lewa and Samuel Kihamba, it held that possession must be nec vi, nec clam and nec precario. It found the Plaintiff entered with permission, which is fatal to adverse possession, that his entry by occupying an abandoned house was secretive, that unrebutted averments showed he was asked to leave in 2014 and was sued in 2018, interrupting any limitation period, and that he failed to prove he built structures. The court also observed that the transfer to James Njenga and the subdivision occurred after his death, amounting to fraud, but held that fraud must be pursued in a fresh suit for cancellation of title. The suit was dismissed with costs to the 1st Defendant and the Interested Party.

Key legal issues

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01

Whether the Plaintiff proved adverse possession

Holding

The claim failed: the Plaintiff entered as a licensee through Rachel Mumbi Kigunda, agent of the Interested Party; his entry was not open or hostile; time, if any, only began running in 2014 when asked to leave, and was interrupted by the 2018 suit

Reasoning

The court found the Plaintiff's entry was with permission of the registered owner's agent, which negates adverse possession. His testimony of finding an abandoned house suggested secrecy, contrary to nec vi nec clam nec precario. The averments that he was asked to leave in 2014 were unrebutted, so time could only start running then, and the 2018 misc. application for vacant possession was an interruption. He also failed to demonstrate he built structures on the land.

p. 18
02

Effect of transfer and subdivision of land after the registered owner's death

Holding

The transfer of Ngong/Ngong/8592 to James Njenga on 9th December 2002 and its subdivision on 4th August 2003, after his death on 31st May 2002, amounts to fraud; the Interested Party must file a fresh suit to have the titles cancelled

Reasoning

The Green Card evidence showed registration in favour of James Njenga months after his death. The court held this amounts to fraud but declined to determine it in this suit, holding fraud must be specifically pleaded and proved in a fresh suit for cancellation. The court also noted a restriction placed on the resultant titles does not cancel them.

p. 18
03

Costs

Holding

Costs awarded to the 1st Defendant and the Interested Party

Reasoning

Having dismissed the suit, the court exercised its discretion on costs in favour of the successful defendants.

p. 19

Legal principles established

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  • Permission to occupy land is fatal to a claim of adverse possession; possession must be nec vi, nec clam, nec precario
  • A claim of adverse possession cannot lie against a party lacking legal capacity to assert title at the material time
  • Fraud in a transfer must be pursued in a fresh suit seeking cancellation of the titles

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the 1st Defendant and the Interested Party

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (16)

  • Sarah Kimani Vs John Wanyoike Gerald
    ELC 791 of 2023 (OS)
  • Abdukhali Mohamed Abdulkhalik Mazurui & 2 Others Vs Josiah Kafuta J. Mtila & Another
    (2021) KECA 653 (KLR)
  • Samuel Kihamba Vs Mary Mbaisi
    (2015) eKLR
  • Wilson Njoroge Kamau Vs Nganga Muceru Kamau
    (2020) eKLR
  • Chevron (K) Ltd Vs Harrison Charo Wa Shutu
    (2016) eKLR
  • Francis Kioko Muruatetu & Another Vs Republic & 5 Others
    (2016) eKLR
  • Morjaria Vs Nansingh Madhusingh Darbar & Another
    (2000) eKLR
  • Moses Parantai Vs Peris Wanjiku Mukuru
  • Daniel Otieno Migore Vs South Nyanza Sugar Company Ltd
    (2018) eKLR
  • Mtana Lewa Vs Kahindi Ngala Mwangadi
    (2015) eKLR
  • Mburu Vs Musembi
    (2023) KEELC 22145 (KLR)
  • Omollo Vs Nyamunga
    (2025) KEELC 120 (KLR)
  • Mutahi & Another Vs Mbatia
    (2023) KEELC 16246 (KLR)
  • Patrick Kiseki Mutisya (suing as the personal representative of the estate of Nzomo Mutisya (Deceased) Vs K. B Shanghani & Sons Limited & Another
    (2012) KEHC 5730 (KLR)
  • Namadoa Vs Gina (suing on his Behalf of his father (DCD) Godfrey Adam Ogwa
    (2025) KECA 470 (KLR)
  • Eliva Nyongesa Lusenaka & Another Vs Nathan Wekesa Omacha
    Kisumu Civil Appeal No. 134 of 1993 (ur)
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (originating summons for adverse possession); Article 162(2)(b) jurisdiction of the Environment and Land Court

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, "Chege v Githiomi (Personal representative in the Estate of James Njenga Githiomi) & 2 others (Enviromental and Land Originating Summons 153 of 2018) [2026] KEELC 3378 (KLR)", Case Analysis (2026). ELC 153 of 2018 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3378/eng@2026-05-28

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