Noorbhai v Nzai & 4 others (Environment and Land Case 56 of 2022) [2026] KEELC 3470 (KLR)

64/5, File No.3555, LT.198 measuring approximately 31.7 acres, or in any other manner, from interfering with the plaintifi’s peaceful occupation and enjoyment of the suit land. 2. c. An order directing the Oficer Commanding Malindi Police Station to supervise the eviction process. d. Costs and interest in this suit. e. Any other relief that the Court may deem fit and just. The defendants denied the plaintifi's claim and, together with 76 other defendants, counterclaimed against the plaintifi for the following relief: a. A declaration that the defendants have acquired adverse possession of the entire suit property, being all that parcel of land situated at Kijiwetanga village in Malindi within Kilifi County in the Republic of Kenya, containing by measurement 31.7 acres or thereabouts, whose dimensions and abuttals are delineated on Deed Plan No. 5764, and known as Land Portion No. 377-Malindi, registered at the Mombasa Land Registry as Title No. LT. 37, Folio 65, File 3448. b. An Order to the Land Registrar, Mombasa Land Registry, to register the 1st to 5th defendants as owners of all that parcel of land situated at Kijiwetanga village in Malindi, within Kilifi County in the Republic of Kenya, containing by measurement 31.7 acres or thereabouts, whose dimensions and abuttals are delineated on Deed Plan No. 5764, and known as Land Portion No. 377-Malindi, registered at the Mombasa Land Registry as Title No. LT. 37, Folio 65, File 3448, as tenants in common on their own behalf and in trust for the other defendants named in the list endorsed herein, and in place of the plaintifi, Shehnaz Abdehussein Ebrahimjee Noorbhai. c. Costs of this suit d. Any other relief that this honourable Court may deem just to grant. Plaintifi ’s case 3. Charles Kai – PW1 adopted his written witness statement dated 21st September 2022 and testified that he knew the suit land. Sometime in 2018, he was given a power of attorney by the plaintifis, proceeded to the suit land, posed as a potential buyer, met the defendants, who claimed to be the owners of the suit land, and reported the matter to the area chief. 4. The plaintifi testified as PW2. She adopted her written witness statement dated 21st September 2022 and produced exhibits Nos. 1 to 7, as listed in her list of documents dated the same date. The plaintifi's testimony is that the suit land was originally registered in the name of her late father-in-law. Upon his demise, it was inherited by her late husband and her late brothers-in-law. Upon their demise, she inherited the suit land and was registered as the owner on 4th June 2019, upon completion of Mombasa High Court Succession Cause Nos. 91 of 2001, 269 of 2001, and 268 of 2001. She testified that she built a two-bedroom house on the suit land but did not live there. She lives at Ganjoni in Mombasa. At some point in the year 2004, the caretaker, Mr. Nzai, began selling portions of the suit land to strangers and also claimed to own it, yet he was merely an employee entrusted with caring for the suit land. The plaintifi testified that the defendants trespassed onto the suit land, began building permanent structures without her authority, and sold part of the suit land to innocent buyers without her consent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3470/eng@2026-05-14 2

page 2 of 7

Defendants’ case 5. The 3rd defendant testified as DW1. He adopted his written witness statement dated 19th October 2022 as his testimony and produced exhibits 1 to 4, which were contained in the defendants' list of documents dated 19th October 2022. The 4th defendant testified as DW2. He adopted his written witness statements dated 19th October 2022 and 21st February 2025. The 5th defendant testified as DW3 and adopted his written witness statement dated 19th October 2022. The defendants denied that the plaintifi had employed a caretaker on the suit land. They testified that the plaintifi had not built any house of hers on the suit land and that she had never been to the suit land until she summoned them to the area chief's ofice sometime in the year 2020. 6. Counsel for the parties filed written submissions. I commend the counsel. The submissions went a long way to assist the Court in reaching its verdict. Analysis and determination 7. Based on the materials, evidence, and submissions placed before me, the issues I frame for the determination of this court are whether the plaintifi is the lawful and indefeasible proprietor of the suit property and is entitled to the orders sought in the plaint; whether the defendants are trespassers; whether the defendants have proved adverse possession to be entitled to the orders sought in the counterclaim; and who should bear the costs of the suit. 8. Regarding whether the plaintifi is the lawful and indefeasible proprietor of the suit property and entitled to the orders sought in the plaint, counsel for the plaintifi submits that the plaintifi is the registered proprietor of the property in dispute following succession proceedings and final transmission. Her predecessors—Gulamalil Ebrahimjee Noorbhai, Amrali Ebrahimjee, and Abduhussein Ebrahimjee—rightfully inherited the land from Ebrahimjee Noorbhai (deceased). 9. She asserts that registration through succession establishes a clear and unbroken title unless fraud or illegality is demonstrated; none has been alleged or proven. Section 26(1) of the Land Registration Act safeguards the plaintifi's title. The Defense has not contested the validity of the title, nor have they presented any competing title. The defendants do not claim ownership through original title, but solely through occupation. The plaintifi's basis of title is documentary and lawful. Conversely, the defendants' basis of claim is oral and unsubstantiated. Accordingly, it is submitted that the plaintifi possesses the sole legitimate proprietary interest in the suit premises. 10. Counsel for the defendant, on the contrary, submits that from the evidence adduced by the plaintifi and the defendants, it is evident that the suit land was initially registered in the name of the plaintifi's father-in-law, one Ebrahimjee Noorbhai, and that upon his demise, the suit land was inherited by his 3 sons, namely, Gullamali Ebrahimjee, Amirali Ebrahimjee, and Abduhussein Ebrahimjee, who were registered as owners of the suit land in the year 1984. The defendants have raised a limitation defense and have also counterclaimed against the plaintifi for adverse possession of the suit land. 11. The defendants have pleaded in paragraph 9 of the statement of defense that the plaintifi's claim is time-barred by virtue of the provisions of Section 7 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya, which provides that an action may not be brought to recover land after the end of 12 years from the date on which the right of action accrued to him or, if it first accrued to some other person through whom he claims, to that person. 12. The defendants further submit that the right to recover the suit land first accrued to the plaintifis' predecessors in title when the defendants took possession and commenced occupation and use of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3470/eng@2026-05-14 3

page 3 of 7

suit land in a manner adverse to their title. The defendants testified that they were born on the suit land and found their parents living there. The 1st defendant was born in 1957, the 3rd defendant in 1947, and the 4th defendant in 1962, as evidenced by copies of their identity cards at pages 28 to 31 of the plaintifis' bundle of documents, while the 5th defendant entered the suit land in 1992. 13. The plaintifi's allegation that the defendants recently trespassed onto the suit land, began constructing structures, and sold portions thereof to innocent buyers has not been established. She could not state with certainty the year the defendants trespassed onto the suit land or when the construction of structures commenced, nor could she provide any evidence of the portions of land sold by the defendants to innocent buyers. 14. The defendants submit that the plaintifi has also failed to adduce any evidence of the presence of a caretaker employed by her on the suit land. If the plaintifi had employed a caretaker on the suit land, she would have had evidence of such employment to produce in Court, such as salary payment vouchers. The plaintifi tendered no evidence that the defendants occupied the suit land with the plaintifi's caretaker's permission. 15. The evidence shows that the defendants have carried out extensive developments on the suit land by building their residences and planting several coconut, mango, and cashew nut trees. The defendants also testified that the entire suit land is occupied by over 99 families, whose identities are set out in the list of defendants in the counterclaim, pages 41 to 46 of the defendants' bundle of documents 16. From the evidence adduced, the defendant's entry, occupation, and use of the suit land preceded the plaintifi's registration as owner of the suit land. No evidence has been adduced demonstrating that the plaintifi's predecessors in title ever asserted their rights over the suit land or re-entered it and regained possession by the time of their demise. At no point did they eject the defendants from the suit land. The evidence of the extensive developments by the defendants on the suit land, including the graves of the defendants' kin buried thereon, as seen in the photographs produced by the defendants in a bundle as exhibits No. 3 and 4 and found at pages 32 to 40 of the defendants' bundle of documents, and as seen in the plaintifi's exhibit No. 2, demonstrates that the defendants' activities on the suit land were such that the world could see them, and that the plaintifi and her predecessors in title cannot feign ignorance of the defendants' trespass on the suit land until recently, when she summoned them at the area chiefs' ofices. 17. In view of the foregoing, the defendants submit that the plaintifi and her predecessors in title had actual and/or constructive notice of the defendants' continuous and exclusive occupation and use of the suit land. 18. From the evidence and materials placed before me, the plaintifi has title to the suit property through transmission. She began asserting her rights only in 2019, as the defendants submitted. The defendants have occupied this land for more than 12 years, thereby entitling them to a defense of adverse possession in this claim. It has not been shown that the predecessors in title ever asserted possession of the suit property; therefore, the title held by the plaintifi is defeasible. 19. On whether the defendants are trespassers, the doctrine of adverse possession serves as their shield, given that they have been on the land for over 12 years. 20. Regarding whether the plaintifi is entitled to the orders sought in the plaint, she is not, as I have found that adverse possession shields them. 21. Whether the defendants are entitled to be registered as owners of the entire suit property by virtue of adverse possession is contested. The counsel for the plaintifi contends otherwise and submits that, pursuant to Sections 7, 17, and 38 of the Limitation of Actions Act, a claimant is required to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3470/eng@2026-05-14 4

page 4 of 7

demonstrate actual occupation that is open and notorious, exclusive, continuous for a minimum of twelve years, adverse to the titleholder, and devoid of force, secrecy, or permission. See Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR, which cites Mbira v Gachuhi (2002) IEALR 137. 22. Counsel for the plaintifi asserts that a party seeking adverse possession must commence proceedings by Originating Summons under Section 38 of the Limitation of Actions Act, not by a counterclaim. Thus, the counterclaim is procedurally defective. 23. Further, counsel contends that occupation through a caretaker is permissive, not adverse. Permission negates adverse possession. 24. Counsel further explains that the defendants assert ownership of the "entire" 31.7 acres. Courts dismiss such vague claims; claimants must specify the exact portion. See Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another [2015] eKLR. 25. Counsel submits that the defendants' pleadings are defective for failing to plead particulars of adverse possession. The law requires specificity. When pleading adverse possession, a claimant must state: when time began to run; which portion they occupy; facts showing continuous and exclusive occupation; and the manner in which occupation became adverse. The defense and counterclaim: do not state the date when adverse possession allegedly began; do not identify the specific acreage occupied; and rely only on oral assertions of being "born on the land." A claim without particulars is fatally defective under Order 2 Rule 10 of the Civil Procedure Rules. The courts have repeatedly held that vague, generalized, and non-specific pleadings cannot sustain a claim for adverse possession. This alone collapses the counterclaim. 26. Counsel states that there is no documentary evidence of occupation of the land for more than 12 years. For adverse possession to extinguish title, defendants must show they were in possession for at least 12 years before the plaintifi became the registered owner. There is no documentary evidence of occupation. There are no receipts, burial records, letters from chiefs from the 1990s/2000s, or evidence from elders. 27. Counsel states that the occupation must be proved by the claimant, not by assumption. Adverse possession cannot be claimed jointly by a group of families. Adverse possession is personal. A group of families cannot collectively claim adverse possession. Each claimant must prove their own adverse occupation, not a shared occupation. Here, the defendants claim 99 families use the land. This defeats exclusivity, continuity, and clarity of occupation, and the counterclaim collapses. 28. As already submitted by counsel for the defendants, they have shown that they have been on this land for a period exceeding 12 years and are entitled to be registered as the owners of the whole suit property. Counsel cites the decisions in Kweyu v Omutut [1990] KLR 709. 29. Counsel further submitted that, further to the foregoing, the defendants' averments as pleaded in their counterclaim, that the entire suit land has been in the exclusive physical possession and occupation of more than 99 families and that the plaintifi does not have any part of the suit land, were not controverted in any written statement of defense to the counterclaim or in any reply to the defense. The defendants submit that, because there is no traverse to the matters of fact pleaded in the counterclaim, the plaintifi is deemed to admit those pleaded facts as provided in Order 2 Rule 11 of the Civil Procedure Rules. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3470/eng@2026-05-14 5

page 5 of 7

30. I agree with both the plaintifi’s and the defendants' counsel that, to establish adverse possession, as held in Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR, referring to Mbira v Gachuhi, (2002) IEALR 137, where it was held that: ..... a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutory prescribed period without interruption...." 31. In Kweyu v Omutut [1990] KLR 709, the Court held that: “ By adverse possession is meant a possession which is hostile, under a claim or colour of right, actual, open, uninterrupted, notorious, exclusive and continuous. When such possession is continued for the requisite period of 12 years, it confers an indefeasible title upon the possessor. (colour of title is that which is a title in appearance, but in reality). Adverse possession is made out by the co-existence of two distinct ingredients; the first, such a title as will afiord colour and second such possession under it as will be adverse to the right of the true owner. The adverse character of the possession must be proved as a fact. It cannot be assumed as a matter of law from mere exclusive possession, however long continued. And the proof must be clear that the party held under a claim of right and with intent to hold adversely. These terms ('claim or colour of title') mean nothing more than the intention of the dispossessor to appropriate and use the land as his own to the exclusion of all others irrespective of any semblance or shadow of actual title or right. A mere adverse claim to the land for the period required to form the bar is not suficient. In other words, adverse possession must rest on de facto use and occupation. To make possession adverse, there must be an entry under a colour of right claiming title hostile to the true owner and the world and the entry must be followed by the possession and appropriation of the premises to the occupants use done publicly and notoriously.” 32. As already found, the defendants have established that they have been in possession, occupation, and use of the suit land for well over the statutory period. Their occupation and use were visible and apparent, and gave notice to the registered owners. This fact was not controverted by the plaintifi. 33. The only anomaly that would defeat the defendants' claim, as submitted by the plaintifis' counsel, is that the defendants claim the "entire" 31.7 acres. A claimant must identify the exact portion. See Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another [2015] eKLR: “ The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession. This was so stated by this Court in the case of Githu v Ndele [1984] KLR 776. The appellants did not discharge the burden of proving and specifically identifying or even describing the portions, sizes and locations of those in their respective possession from the larger suit premises that they sought to have decreed to them. It is exactly for this reason, perhaps that there was a mandatory requirement under the old Civil Procedure Act and the rules made thereunder that when taking out and O. S. anchored on adverse possession that an extract of the title to the subject land be annexed to the application. Indeed, the then Order XXXVI Rule 3D (2) specifically provided: “…The summons shall be supported by an afidavit to which a certified extract of the title to the land in question has been annexed…” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3470/eng@2026-05-14 6

page 6 of 7

34. While the defendants have demonstrated possession of the suit property for over 12 years, which qualifies them for protection under the doctrine of adverse possession, they did not provide evidence of the specific occupation details or how the property should be registered for the 5 defendants, the 76 listed defendants, or the 99 families. I agree with the plaintifi's counsel that adverse possession cannot be claimed collectively by a group of families. It is a personal right, and each individual must prove their own adverse possession; a group cannot claim it collectively. In this case, the defendants assert that 99 families use the land, thereby undermining the principles of exclusivity, continuity, and clear occupation and rendering their counterclaim invalid. 35. I need not discuss the issue of whether the defendants should have originated an OS to determine the exact occupation of the many defendants; perhaps it could cure the defects disclosed in the counterclaim. 36. From the foregoing, the plaintifi’s claim will fail, and so will the defendants’ counterclaim. 37. There will be no order as to costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 14TH DAY OF MAY, 2026. E. K. MAKORI JUDGE In the presence of: Ms. Omollo for the Plaintifi Mr. Shujaa for the Defendant Kendi: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3470/eng@2026-05-14 7

page 7 of 7