Waema v Ndunda & 4 others (Enviromental and Land Originating Summons E004 of 2023) [2026] KEELC 4039 (KLR)
The bottom line
#A Machakos court dismissed a man's claim to land by adverse possession because he only proved a boundary dispute, not twelve years of hostile occupation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff met the threshold for adverse possession
The Plaintiff failed to prove open, peaceful, continuous and adverse occupation of 2.158 hectares for over twelve years; the dispute was a boundary dispute with boundaries clearly marked on the ground
The court applied the settled criteria from Maweu v Liu, Mbira v Gachuhi and Wambugu v Njuguna. The Plaintiff's testimony gave no evidence of occupation from the 1970s as alleged. The Yatta County Surveyor's report of 28 July 2023 confirmed that map and ground boundaries for parcels 1258 and 1259 tally, confirming a boundary dispute rather than adverse possession. The Plaintiff was found to be a neighbour with clearly demarcated boundaries.
Who will bear the costs
The Plaintiff, having lost the suit, bears the costs under section 27 of the Civil Procedure Act
The court applied the general rule that costs follow the event under section 27 of the Civil Procedure Act, since the Plaintiff failed to prove his claim on a balance of probabilities.
Legal principles established
#- To prove title by adverse possession, the claimant must show possession that is adequate in continuity, in publicity and in extent, and adverse to the registered owner
- A claim of adverse possession cannot succeed if possession is held with the permission of the owner or under an agreement of sale or lease
- The claimant must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
- The burden is on the claimant to prove possession that is nec vi, nec clam, nec precario
- Abandonment by the owner does not of itself establish adverse possession; the claimant must take possession with animus possidendi asserting rights inconsistent with the owner's title
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.The Plaintiff is to bear the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under a claim for adverse possession under section 38(1) and (2) of the Limitations of Actions Act, Cap 22
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waema v Ndunda & 4 others (Enviromental and Land Originating Summons E004 of 2023) [2026] KEELC 4039 (KLR)", Case Analysis (2026). ELCOS Case No. E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4039/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.