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ELCPartially AllowedELC. SUIT NO. 341 (OS) OF 2017· [2026] KEELC 5684 (KLR)

Keith Ngala Kazungu v Mwanaisha Ali

Environment and Land Court
24 September 2026
JOJ.O. Olola
1,021 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 declared that a man who openly occupied a plot since 1980 now owns it, because the registered owner did nothing for over 12 years.

What this practically means

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Executive summary

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By an Originating Summons dated 13th September 2017, Keith Ngala Kazungu sought declarations that Mwanaisha Ali's interest in Plot No. MN/I/2894 in Mombasa County had been extinguished and that he be registered as proprietor by adverse possession, together with issuance of Certificates of Title without gazettement and registration of the orders under Section 38(2) of the Limitation of Actions Act. The Respondent was served by substituted service through the Standard Newspaper on 18th October 2022 but neither entered appearance nor filed a response, and the suit proceeded undefended. The Applicant testified as sole witness, stating he and his family had occupied the property since 1980, built and developed it openly without interruption, and produced a photograph of a residential house and documents confirming registration in the Respondent's name. Applying Section 38(1) of the Limitation of Actions Act and the Court of Appeal's decision in Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR, the court found the Applicant had asserted hostile title and dispossessed the registered owner for over twelve years, proving his case on a balance of probabilities. The court allowed the Originating Summons in terms of prayers 1, 2, 3 and 4 but made no order as to costs, declining prayer 5.

Key legal issues

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01

Whether adverse possession was proved

Holding

The Applicant proved hostile, uninterrupted and exclusive possession exceeding 12 years, extinguishing the registered owner's title

Reasoning

The Applicant, testifying as sole witness, stated he and his family occupied the suit property since 1980, built and developed it openly without hindrance. He produced a photograph of a residential house and documents showing registration in the Respondent's name. The Respondent, though served by substituted service, did not enter appearance or respond, leaving the testimony uncontroverted. The court was satisfied the elements of adverse possession under Section 38(1) of the Limitation of Actions Act were met.

p. 6

Legal principles established

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  • Adverse possession requires open, continuous and exclusive possession for 12 years, not by force, stealth or licence, springing from the owner's inaction

Court orders

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  1. 1.Declaration that the Respondent's interest in Plot No. MN/I/2894 has been extinguished (prayer 1)
  2. 2.Order that the Applicant be registered as proprietor of Plot No. MN/I/2894 in place of the Respondent by reason of adverse possession (prayer 2)
  3. 3.Order that the Registrar of Titles, Mombasa issue Certificates of Title for the parcel in the name of KEITH NGALA KAZUNGU without gazettement (prayer 3)
  4. 4.Registration of the orders against the Title in terms of Section 38(2) of the Limitation of Actions Act (prayer 4)
  5. 5.No order as to costs
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act, Chapter 22, Laws of Kenya

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, "Keith Ngala Kazungu v Mwanaisha Ali", Case Analysis (2026). ELC. SUIT NO. 341 (OS) OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5684/eng@2026-09-24

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