Savini & another v Mugala & another (Environment and Land Appeal E002 of 2025) [2026] KEELC 3598 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a 12-year adverse possession land claim because the family couldn't prove exclusive occupation for the full period.
What this practically means
#Executive summary
#Key legal issues
#Standard of proof for adverse possession
The Appellants needed to prove exclusive, peaceful, actual and continuous possession exceeding 12 years and failed to do so
The court applied the balance of probabilities standard and the elements of adverse possession from Mtana Lewa. The green card showed registration on 19.12.1995 and Sabini Lubwa died on 2.6.2006, so even on the Appellants' own case the possession could not exceed 10–11 years. Evidence of occupation before 2020 was lacking, with no surveyor's or agriculture officer's report or photographs.
Procedural mode of commencing adverse possession claims
Although section 38 of the Limitation of Actions Act and Order 37 require an Originating Summons, commencing by plaint is not fatal per Chevron (K) Ltd vs Harrison Charo Wa Shutu
The court noted there was no explanation for the wrong procedure but held, following superior court authority, that the lapse was not fatal. However, it separately found the trial court lacked jurisdiction under section 38 to entertain such claims, which the Respondents had raised.
Effect of pleading irregular acquisition without seeking relief on that basis
The alleged contradictions and irregularity did not undermine the Respondents' registered title or credibility
The suit did not challenge the registration of the land in Joseph J. Mugalla's name; although irregular transfer was pleaded, no relief was sought on that basis. The green card confirmed the charge and transfer, and the alleged contradictions were not shown to materially affect the credibility of DW1 and DW2's evidence.
Sanctity of registered title
The Respondents, as registered proprietors under Kakamega H.C. Succession Cause No. 193 of 2025, are entitled to constitutional and statutory protection of title
The court invoked Article 40 of the Constitution and sections 24, 25 and 26 of the Land Registration Act protecting the sanctity of title. Grounds for cancellation of title were not proved, and the counterclaim for eviction and permanent injunction was properly allowed by the trial court.
Legal principles established
#- A claim of adverse possession cannot be based on title that the claimant pleads was irregularly acquired
- The trial magistrate's court lacks jurisdiction under section 38 of the Limitation of Actions Act to entertain claims of adverse possession
- On a first appeal, the court is not bound by the findings of the trial court and must re-analyse the evidence
Court orders
#- 1.Appeal is dismissed
- 2.Costs are awarded to the Respondents
- On appeal from
- Kakamega Chief Magistrate's Court (CMC E & L Case No. E130 of 2022)
- Kakamega CMC E & L CASE NO. E130 OF 2022
- Jurisdiction invoked
- First appellate jurisdiction under the Environment and Land Court Act over an appeal from the Chief Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Savini & another v Mugala & another (Environment and Land Appeal E002 of 2025) [2026] KEELC 3598 (KLR)", Case Analysis (2026). VIHIGA ELCLA NO. E002 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3598/eng@2026-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.