Kisuya v Kisuya & 3 others (Environment and Land Case E012 of 2026) [2026] KEMC 654 (KLR)

The Court applied the settled principles in Wambugu v Njuguna and Kamau v David: occupation must be open, peaceful, notorious and continuous for at least 12 years with the intention of excluding the true owner. The evidence showed the Tsetse residents had occupied and developed the land since at least 1963 without the Defendants' permission, and the Defendants failed to prove any such permission. Time therefore ran against the registered proprietors, and their title stood extinguished.

Having found that adverse possession extinguished the Defendants' title, the Court held that ownership vested in the Plaintiff, who brought the suit on his own behalf and on behalf of the residents of Tsetse Area. The Court therefore declared the Plaintiff the lawful owner and clothed him with the capacity to hold the land in trust for the residents, consistent with the trust recognised under section 28 of the Land Registration Act.

The Court noted that where a defendant alleges that occupation was permissive, the evidential burden shifts to that defendant to prove the permission. The Defendants produced no credible evidence of any licence, lease or other consent granted to the Tsetse residents. In the absence of such proof, the occupation was adverse, and the plea of permission could not defeat the claim for adverse possession.

The 4th Defendant entered appearance but took no further part in the proceedings, neither filing a statement of defence nor participating in the hearing. The Court held that the consequence of that inaction was that the suit against the 4th Defendant abated, and judgment was entered only against the 1st, 2nd and 3rd Defendants, who actively defended the suit.