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ELCPartially AllowedMSA. ELC(OS). 40 OF 2022· [2026] KEELC 4671 (KLR)

Gunga v Shah (Environment and Land Case Civil Suit 40 of 2022) [2026] KEELC 4671 (KLR)

Environment and Land Court
23 July 2026
JOJ. O. Olola
1,340 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court granted a woman ownership of land she had openly lived on for over 30 years, even though someone else held the title.

What this practically means

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Executive summary

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The Applicant, Santa Katana Gunga, filed an Originating Summons dated 24th March 2022 under Section 38 of the Limitation of Actions Act (Cap 22) claiming to have acquired Plot No. 185/III/MN (0.12 acres, Mombasa) by adverse possession. She sought orders extinguishing the Respondent's interest, deletion of his name from the register, her registration as proprietor, and costs. She testified she had occupied the land since 1985 upon marriage, raised her children there, constructed a permanent house and cultivated the remainder; her neighbour (PW2) corroborated her occupation. The Respondent was served by substituted service through the Daily Nation on 7th October 2022, entered appearance through Messrs Muthee Kihiko Soni & Associates, but filed no pleadings and called no witness. His advocates informed the court he had transferred the property to a third party over fifty years ago though the transfer was never effected. The court, applying the Court of Appeal decision in Mombasa Teachers Co-operative Savings and Credit Society Limited v Robert Muhambi Katana & 15 others, held that the Applicant proved non-permissive, open, notorious, exclusive and uninterrupted occupation exceeding the statutory 12-year period, that the Respondent remained the registered proprietor against whom the claim properly lay, and that her uncontroverted testimony was credible. Judgment was entered in the Applicant's favour: title by adverse possession was declared, the Registrar of Titles, Mombasa was directed to cancel the Respondent's name and register the Applicant as proprietor. No order as to costs was made.

Key legal issues

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01

Whether the Applicant proved adverse possession for over 12 years

Holding

The Applicant proved open, continuous and uninterrupted possession exceeding 30 years, entitling her to be registered as proprietor

Reasoning

The Applicant testified she had lived on the land since 1985 after marriage, raised her children there, built a permanent house and cultivated the remainder. Her neighbour (PW2) corroborated 20 years of occupation. The Respondent, though served, filed no pleadings and called no witness; his advocates only indicated he had sold the property 50 years ago. The certificate of search confirmed he remained the registered proprietor. The court found the Applicant's uncontroverted testimony credible.

p. 6

Legal principles established

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  • A person seeking to acquire title to land by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse occupation for an uninterrupted period of 12 years (nec vi nec clam nec precario).
  • Where a registered proprietor has purportedly sold land but it remains registered in his name, he remains the rightful person against whom a claim for adverse possession may be made.

Court orders

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  1. 1.Declaration that Santa Katana Gunga, the Applicant, has acquired title by adverse possession over Plot No. 185/III/MN containing 0.12 acres
  2. 2.The Registrar of Titles, Mombasa directed to forthwith cancel the name of the Respondent as proprietor of Plot No. 185/III/MN
  3. 3.Order directing the Registrar of Titles Mombasa to forthwith register the Applicant as proprietor of Plot No. 185/III/MN
  4. 4.No order as to costs
Jurisdiction invoked
Section 38 of the Limitation of Actions Act, Cap 22, Laws of Kenya (originating summons for adverse possession)

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, "Gunga v Shah (Environment and Land Case Civil Suit 40 of 2022) [2026] KEELC 4671 (KLR)", Case Analysis (2026). MSA. ELC(OS). 40 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4671/eng@2026-07-23

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