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ELCDismissedELCOS Case No. E004 of 2023· [2026] KEELC 4039 (KLR)

Waema v Ndunda & 4 others (Enviromental and Land Originating Summons E004 of 2023) [2026] KEELC 4039 (KLR)

Environment and Land Court
2 July 2026
1,960 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff, Harun Ndambuki Waema, brought an originating summons in the Environment and Land Court at Machakos seeking to be declared and registered as proprietor of 2.158 hectares of land parcel Yatta/Ekalakala/1259, registered to Itumbi Mutuku (deceased), by adverse possession. He claimed to have settled in the area in the 1970s, occupying the disputed portion openly, peacefully and continuously for more than twelve years without the permission of the registered owner or his estate. The Defendants countered that the Plaintiff was merely a neighbour residing on the adjoining parcel, that boundaries were clearly marked on the ground, and that the Plaintiff only began claiming two acres around 2008-2009. The court framed two issues: whether the Plaintiff met the threshold for adverse possession, and who should bear costs. Applying section 38(1) and (2) of the Limitations of Actions Act and settled case law including Maweu v Liu and Mbira v Gachuhi, the court held that the Plaintiff bore the burden of proving possession that was nec vi, nec clam, nec precario for the statutory period. The court found no evidence of occupation from the 1970s, noted the Yatta County Surveyor's report of 28 July 2023 confirming that map and ground boundaries of the two parcels tally, and characterised the matter as a boundary dispute with clearly demarcated boundaries. The suit was dismissed with costs to the Plaintiff under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the Plaintiff met the threshold for adverse possession

Holding

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

Reasoning

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.

p. 9
02

Who will bear the costs

Holding

The Plaintiff, having lost the suit, bears the costs under section 27 of the Civil Procedure Act

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Plaintiff is to bear the costs of the suit

Authorities

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Legislation

  • Limitations of Actions Act, Cap 22section 38(1) and (2)
  • Limitations of Actions Act, Cap 22section 37
  • Civil Procedure Actsection 27

Cases cited (10)

  • Maweu vs Liu Ranching and Farming Cooperative Society
    1985 KLR 430
  • Samuel Miki Waweru vs. Jane Njeru Richu
    Civil Appeal No. 122 of 2001
  • Jandu v Kirpal
    [1975] EA 225
  • Mbira vs Gachuhi
    (2002) IEALR 137
  • S. M. Kenni alias Tamanna Sabeb vs Mst Bibi Sakina
    AIR 1964 SC 1254
  • Parsimi vs Sukhi
    1993 4 SCC 375
  • Alfred Welimo vs Mulaa Sumba Barasa
    CA No 186 of 2011
  • Kimani Ruchine vs Swift, Rutherfords Co. Ltd.
    (1980) KLR 1500
  • Karnataka Board of Wakf vs Government of India & Others
    (2004) 10 SCC 779
  • Wambugu vs Njuguna
    (1983) KLR 173
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

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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, "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.