Kirao & 106 others v Kassamjee (Environment and Land Case 55 of 2020) [2026] KEELC 3410 (KLR)
The bottom line
#The Environment and Land Court dismissed 107 people's adverse possession claim over Malindi land and ordered them evicted within three months.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the defendant (plaintiff) in the counterclaim holds absolute ownership of the suit property
- 2.whether the plaintiffs (defendants) in the counterclaim are entitled to adverse possession
- 3.whether the plaintiff is entitled to the relief sought
- 4.who should bear the costs of the suit
Key legal issues
#Whether the defendant holds absolute ownership of the suit property
The defendant proved registered ownership of the 50.07 acres through an Indenture dated 17 June 1992 and a Certificate of Postal Search; his title is prima facie valid and protected by Article 40 of the Constitution and Section 26(1)(b) of the Land Registration Act.
The defendant produced defence Exhibits 1 and 2 evidencing registered title acquired in 1992 and demonstrated lawful acquisition. The plaintiffs' attacks on the root of title (vendor's identity, lack of sale agreement, proof of payment) were rejected because the plaintiffs themselves possessed no title and did not call evidence. The court held the root of the defendant's title was not in dispute as against titleless plaintiffs, who were found to be trespassers.
Whether the plaintiffs are entitled to adverse possession
No. The plaintiffs failed to prove continuous occupation for over 12 years or identify the exact portions each occupied, both essential to adverse possession; they also withdrew their originating summons.
Relying on Mtana Lewa v Kahindi Ngala Mwagandi, the court reiterated that adverse possession requires 12 years of open, continuous possession adverse to the owner, not by force, stealth or licence. The plaintiffs never offered evidence of the specific portion each of the 107 persons occupies or when they settled; the defendant reported invasions to the Chief, Police and NLC from 2013, showing no acquiescence. The plaintiffs' withdrawal of the OS left the counterclaim unchallenged.
Standard of proof and scrutiny where a party files only a defence without calling evidence
The court agreed with both sides that mere denial is insufficient and that the court must still scrutinise the testimony, pleadings and documents; applying these principles, the defendant discharged his burden on a balance of probabilities.
The court adopted Nyukuri v Omochar, citing Raghbir Singh Chatte, that a general traverse is not an effective defence. It also accepted the plaintiffs' authorities (Mutangili v Registrar of Titles; Moi v Muriithi) that a court retains a duty to scrutinise unchallenged testimony and assess probabilities. On scrutiny, the defendant's documentary evidence of title and reports of the invasion outweighed the plaintiffs' unsubstantiated defence to the counterclaim.
Legal principles established
#- Adverse possession in Kenya requires 12 years of possession that is neither by force, stealth nor licence, adequate in continuity, publicity and extent
- A registered proprietor's title is prima facie protected under Article 40 of the Constitution and Section 26(1)(b) of the Land Registration Act
- A mere denial or general traverse in defence is not sufficient; a party who does not call evidence but files mere denial leaves the opposing case unchallenged
Court orders
#- 1.An order for vacant possession of the portion of land illegally occupied by the plaintiffs, measuring approximately 4 acres, within Plot No. 220 Malindi
- 2.An order of eviction against the plaintiffs, their servants, employees, agents and any other person claiming through them, from the suit property, including demolition of all their illegal structures and buildings on the occupied portion
- 3.A grace period of 3 months from the date of judgment for the plaintiffs to vacate voluntarily, failing which forced eviction shall ensue
- 4.The defendant is awarded the costs of the suit and interest thereon at court rates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over the suit property (adverse possession claim and counterclaim)
Relief refused
#Plaintiffs' adverse possession claim over 50.07 acres of Plot No. 220-Malindi
Plaintiffs failed to prove 12 years' continuous, open and notorious possession or identify the portions each occupied; they withdrew their originating summons leaving the counterclaim unchallenged
Costs
The defendant will get the costs of the suit and interest thereon at Court rates.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, I conclude that the defendant is the legitimate owner, and the plaintifis are trespassers who should vacate the property.
The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the owner.
Prima facie, the defendant has title to the suit property as against the whole world. The title needs protection under Article 40 of the Constitution and Section 26(1)(b) of the Land Registration Act.
Instead of prosecuting their adverse possession claim, the plaintifis withdrew it, leaving the defendants' Counterclaim unchallenged.
a. An order is hereby issued for vacant possession of the portion of land illegally occupied by the plaintifis, measuring approximately 4 acres or thereabouts, within all that parcel of land known as Plot No. 220 Malindi, owned by the Defendant
c. That, in accordance with the law on evictions, the plaintifis are to be granted a grace period of 3 months from the date of this judgment to vacate voluntarily; failure to do so will result in forced eviction.
d. The defendant will get the costs of the suit and interest thereon at Court rates.
Issues in the judgment
#Internal contradiction in the identity of the plaintiffs: paragraph 2 and the counterclaim describe 107 plaintiffs, but paragraph 16 refers to 'Ali Ngoba Rua has never lived on the suit land, as he lives on Plot No. 219', suggesting he is a named plaintiff, yet the case caption/number of the OS is not stated in the judgment and the party listing is inconsistent.
Discrepancy in the suit property number: the pleadings and Indenture refer to Plot No. 220 Malindi, but paragraphs 30 and 31 refer to 'Plot No. 120 Malindi'.
Date discrepancy in the Indenture: the judgment records it as dated 17th June 1992 in some passages and 17th July, 1992 in the plaintiffs' submissions.
The judgment cites an authority dated 2026 (Mutangili v Registrar of Titles [2026] KEELC 1890) in a judgment delivered 14 May 2026, an internally questionable citation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirao & 106 others v Kassamjee (Environment and Land Case 55 of 2020) [2026] KEELC 3410 (KLR)", Case Analysis (2026). Originating Summons re Plot No. 220-Malindi; LT:37, Folio: 225, File: 3403. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3410/eng@2026-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.