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ELCDismissedNot stated in judgment· [2026] KEELC 4490 (KLR)

Ole Koilel & 17 others v Emco Billets and Steel Ltd & another (Land Originating Summons E038 of 2025) [2026] KEELC 4490 (KLR)

Environment and Land Court
14 July 2026
MKMOHAMMED N. KULLOW
1,752 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that a bank holding a mortgage over land cannot join an adverse possession case as a defendant, because a charge doesn't stop adverse possession time.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nairobi, delivered virtually by Mohammed N. Kullow, J, on 14th July 2026, determined an application by the Interested Party, Co-operative Bank of Kenya Limited, seeking to be struck out as an Interested Party and joined as the 2nd Defendant in an adverse possession suit concerning LR No. 12034/3 (original number 12034, Mowlem Area, Nairobi). The Bank held a registered charge over the suit property securing a loan to the Defendant, who had defaulted and owed approximately Kshs. 5,303,766,569.93. The Bank argued that the declaratory adverse possession claim directly affected its charge and that it was a necessary party under Order 1 Rule 10(2) to produce title and security documents. The Plaintiffs opposed, contending that the cause of action lay strictly against the registered proprietor, that a charge confers a security interest only and not ownership, and that joinder conditions were unmet. The court framed a single issue: whether a case had been made for the Bank's joinder as Defendant. Relying on Order 1 Rule 10(2), Lucy Nungari Ngigi v National Bank of Kenya, and Benson Mukuwa Wachira v Assumption Sisters of Nairobi Registered Trustees (citing Kipkoech Arap Langat), the court held that charging or mortgaging land in adverse possession does not interrupt the running of time, and that a chargee takes subject to the overriding interest of adverse possession. The Bank's interest did not make it a necessary party. The application dated 11th February 2026 was dismissed with costs on the Applicant.

Key legal issues

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01

Whether a chargee holding a registered charge over the suit property is a necessary party to an adverse possession claim against the registered owner

Holding

No. The registered charge does not confer ownership nor defeat the plaintiffs' adverse possession claim; the Applicant failed to meet the conditions for joinder under Order 1 Rule 10(2).

Reasoning

The court applied Order 1 Rule 10(2) and the test in Lucy Nungari Ngigi v National Bank of Kenya: joinder is warranted where a common question of law or fact arises and the party's presence is necessary for complete adjudication. Relying on Benson Mukuwa Wachira, it held that charging land in occupation of an adverse possessor does not interrupt time, and the chargee takes subject to the overriding interest. The bank's interest is therefore not distinct enough to require joinder as Defendant.

Legal principles established

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  • Charging or mortgaging land occupied by a person in adverse possession does not interrupt the running of time in adverse possession.
  • A mortgagee or transferee takes land subject to an overriding interest of adverse possession acquired or in the process of being acquired.

Court orders

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  1. 1.The application dated 11th February 2026 is dismissed
  2. 2.Costs shall be on the Applicant
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules (joinder of parties) in a first-instance adverse possession suit

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, "Ole Koilel & 17 others v Emco Billets and Steel Ltd & another (Land Originating Summons E038 of 2025) [2026] KEELC 4490 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4490/eng@2026-07-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.