Mambo & 2 others (Suing as the administrator of Mwinyi Juma Bugu) v Hawkins & another (Environment and Land Case 247 of 2021) [2026] KEELC 4320 (KLR)
The bottom line
#The Environment and Land Court at Kwale dismissed a long-running adverse possession claim over Diani Beach plots because the families could not prove twelve years of open, exclusive occupation.
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 Plaintiffs have established their claim for adverse possession over L.R No. 5004/Kwale/Diani Beach Plot Nos. 283 & 284 and MSA/M.S./Diani Beach Block Nos. 102, 103, 104 & 993
- 2.Whether the Plaintiffs are entitled to be registered as proprietors of the suit properties and issued with certificates of title accordingly
- 3.What is the effect of the Defendants' failure to call witnesses or tender viva voce evidence in rebuttal of the Plaintiffs' case
- 4.Whether the 3rd Defendant's acts of construction, occupation and use of the suit land interrupted or extinguished the Plaintiffs' claim of adverse possession
- 5.Who bears costs of the suit
Key legal issues
#Whether the Plaintiffs established adverse possession
Claim dismissed; the evidence failed to satisfy the ingredients of adverse possession
The court re-evaluated the 2009 witness testimony and the site visit report. Plaintiffs gave no tangible evidence of habitation, farming or graves; they appeared to have voluntarily vacated; cautions they registered showed the occupation was disputed. Their possession was neither exclusive, continuous nor non-permissive for the statutory 12-year period.
Effect of Defendants' failure to call witnesses
It does not tilt the scales; the burden remains on the Plaintiffs
Relying on Sections 107 and 108 of the Evidence Act and Kirugi v Kabiya and Gichinga Kibutha v Caroline Nduku, the court held that uncontroverted evidence must still be credible and must discharge the burden of proof on a balance of probabilities.
Whether the Defendants' constructions interrupted the Plaintiffs' claim
The Defendants' acts of construction and occupation interrupted and defeated any claim of adverse possession
The Defendants constructed a perimeter wall, villas and a swimming pool from about 2006, asserting control. The Plaintiffs took no precautionary measures such as inhibitions or injunctions, only a caution which was lifted. Equity does not aid the indolent.
Whether the 2009 proceedings remained usable after the ex parte judgment was set aside
Only the judgment and consequential orders were set aside; the proceedings and evidence remain intact and were relied upon
Order 10 Rule 11 confers discretion to set aside a default judgment on just terms, not the proceedings. The 3rd Defendant, having attacked and relied on the same evidence, was estopped from denouncing it under Section 120 of the Evidence Act.
Legal principles established
#- Failure by a defendant to call witnesses does not absolve a plaintiff of the duty to prove their case on a balance of probabilities
- Setting aside an ex parte judgment under Order 10 Rule 11 does not automatically set aside the proceedings, which remain available to the trial court
Court orders
#- 1.Judgment entered dismissing the suit by the Plaintiffs/Applicants as per the Further Amended Originating Summons dated 17th March 2025 in its entirety
- 2.The previous orders restraining the Defendants from undertaking any development on the suit land set aside; Defendants at liberty to proceed with activities on the suit land
- 3.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act; Sections 7, 13 and 38 of the Limitation of Actions Act, Cap. 22
Relief refused
#Declaration that the Plaintiffs are proprietors of the suit land by adverse possession
Plaintiffs failed to demonstrate actual, open, exclusive and uninterrupted occupation for over twelve years
Registration of the Plaintiffs as proprietors and issuance of certificates of title
Claim for adverse possession failed; Defendants' subsequent constructions affected the claim
Costs
Each party to bear their own costs
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.
That Judgement be and is hereby entered dismissing the suit by the Plaintiffs/Applicants as per the Further Amended Originating Summons dated 17 th March 2025 in its entirety.
That each party to bear their own costs.
the Court finds that the Plaintiffs have failed to demonstrate actual, open, exclusive, and uninterrupted occupation of the suit properties for a period exceeding twelve years.
The absence of defence evidence does not absolve the Plaintiffs of this duty.
The Court finds that the Defendants' acts of construction and occupation, including perimeter walls and villas interrupt or extinguish the Plaintiffs' claim of adverse possession.
Thus, I discern that all the proceedings and other adduced evidence by the Plaintiffs witnesses is intact and are still part of the proceedings to be relied on by the trial court.
Issues in the judgment
#Internal contradiction on Issue (b): the court first finds for the Plaintiffs' entitlement to registration, contradicting its dismissal of the claim
Conflicting dates for the ruling setting aside the ex parte judgment within the judgment (5th March 2010 vs 5th March 2018 vs 8th March 2010)
Errors in the delivery date of judgment ('9 TH DAY OF JULY 026') and numbering of analysis paragraphs restarts at 81
Conclusion states the Plaintiffs' failure 'extinguish[ed] the Defendants' title under Section 17', which inverts the statutory effect of Section 17 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mambo & 2 others (Suing as the administrator of Mwinyi Juma Bugu) v Hawkins & another (Environment and Land Case 247 of 2021) [2026] KEELC 4320 (KLR)", Case Analysis (2026). ELCC Case No. 247 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4320/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.