https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4713

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CASE NO. 234 OF 2021 (OS)** **VIRGINIA WAIRIMU GITAU …………….….………. PLAINTIFF** **VERSUS** **ASENA PRAMILLAH AYUMA ………………………1ST DEFENDANT** **THE HONOURABLE ATTORNEY GENERAL ..… 2ND DEFENDANT** **JUDGMENT** **Background** 1. By the Originating Summons dated 22nd November 2021, Virginia Wairimu Gitau (the Plaintiff/Applicant) prays for the following: 2. **A declaration that she has occupied the** **suit property Land Title No. Mombasa/Mwembelegeza/870 for a continuous period of more than 12 years in terms of the Limitation of Actions Act, Cap 22 Laws of Kenya;** 3. **A declaration that the title of the Respondent herein Asena Pramillah Ayuma over the suit property has been extinguished by way of the Applicant’s adverse possession thereof for a period of more than 12 years;** 4. **A declaration that the Applicant is entitled to the ownership of the suit property by way of the doctrine of adverse possession;** 5. **An order that the County Land Registrar – Mombasa do accordingly effect the necessary changes in the Land Register and register the Applicant herein as the absolute proprietor and/or owner of the suit property;** 6. **An order that the County Land Registrar – Mombasa be directed that the orders herein shall operate as the Instruments of Transfer of Ownership of the whole suit property from the Respondent to the Applicant;** 7. **A permanent order of injunction (be issued) restraining the Respondent, her representatives, employees, agents, successors in title, or persons claiming under her title, including any purported buyers, transferees, and/or registrar of titles; from selling, leasing, charging, transferring or registering any sort of disposition or purporting to sell, lease, charge, transfer or purporting to register any disposition over the suit property; and** 8. **Costs of this suit be awarded to the Applicant.** 9. The Originating Summons is supported by an Affidavit sworn by the Applicant and is premised, inter alia, on the grounds; 10. **That the subject matter of this suit is the property known as Land Title Number Mombasa/ Mwembelegeza/870 situate at Bamburi area within the County of Mombasa;** 11. **That the suit property is registered in the name of the Respondent who was issued with a Title Deed over the same in the year 2005;** 12. **That despite the said registration, the Applicant has been in actual and physical possession, control and occupation of the suit property for more than 12 years without permission from the Respondent;** 13. **That the said actual and physical possession and occupation of the suit property has been peaceful and without any force, has been open and without any secrecy, uninterrupted and without any permission from the Respondent; and** 14. **That by dint of the matters aforesaid, the title of the Respondent over the suit property has been extinguished under the relevant provisions of the law and doctrine of adverse possession.** 15. Asena Pramillah Ayuma (the 1st Defendant/Respondent) is opposed to the prayers sought. In her Replying Affidavit sworn on 17th February 2022, and her Statement of Defence and Counterclaim of the same date, the 1st Respondent avers that she is the rightful owner of the suit property. 16. The 1st Respondent avers that sometime in the year 2010, she was transferred from her work station in Mombasa and that she left the suit property under the care of the Applicant who was her neighbor to wade off any intruders. The 1st Respondent further avers that she allowed the Applicant to build a small mabati shack on the property to conduct her diesel business. 17. The 1st Respondent asserts further that the Applicant is a mere licencee having entered into the suit property pursuant to a care taker agreement dated 1st December 2010. The 1st Respondent avers that upon her return to Mombasa in the year 2021, she gave the Applicant notice to vacate the property but the Applicant refused to do so. 18. By way of the Counter Claim, the 1st Defendant/Respondent prays for orders that: 19. **That the 1st Defendant/Respondent’s suit be allowed and that an eviction and demolition order to be issued against the Plaintiff, her invitees and associates to vacate the suit property;** 20. **The OCS Mwatamba/Kadzandani Police Station to provide security to the Court bailiff during the implementation of the court orders;** 21. **Mesne profits/damages for trespass;** 22. **Cost of the suit;** 23. **Interest at Court rates; and** 24. **Any other relief the Court deems fit to grant.** 25. By way of Reply to Defence and Defence to Counter Claim, the Plaintiff avers that she has never met the 1st Defendant or entered into any agreement with her in regard to the suit property. She maintains that she has lived on the property freely, openly and without any interruption after her parents’ demise. 26. At the trial herein, the Plaintiff called a total of four (4) witnesses while the defence called three (3) witnesses. 27. I have carefully perused and considered the pleadings filed by the parties, the testimonies of the witnesses as well as the evidence adduced at the trial. I have similarly perused and considered the submissions placed before the Court by the Learned Advocates representing the parties. **Analysis and Determination** 1. By her suit as filed herein, the Plaintiff prays for a declaration that she has occupied the parcel of land known as Mombasa/Mwembelegeza/870 for a continuous period of more than 12 years and that as a result the 1st Defendant’s title thereto has been extinguished under the doctrine of adverse possession. In addition, the Plaintiff prays for a permanent order of injunction restraining the 1st Defendant from leasing, charging or dealing with the suit property in any manner. 2. It is the Plaintiff’s case that she has lived on the land ever since she was born in the year 1954 and that following the death of her parents, she had taken over the land and constructed a permanent house thereon in the year 2006. The Plaintiff further told the Court that even though the suit property was registered in the 1st Defendant’s name in the year 2005, it was the Plaintiff who has been in actual physical possession and occupation of the suitland-to-date. 3. Those claims are denied by the 1st Defendant. According to the 1st Defendant, she was allotted the said parcel of land situated in Bamburi in Mombasa County through the Ministry of Lands and Physical Planning in an adjudication process carried out in the year 2005. 4. The 1st Defendant told the Court that when she acquired the land, she was working in Mombasa. Sometime in the year 2010 however, the 1st Defendant was transferred from Mombasa to Emali and subsequently to Kisumu. The 1st Defendant told the Court that following her transfer, she entered into an agreement with the Plaintiff who was her neighbour to use the land and take care of it to wade off any would be intruders. 5. The 1st Defendant told the Court that she was surprised when she returned to Mombasa in the year 2021 and the Plaintiff declined to move out of the land as per their agreement. The 1st Defendant asserted that the Plaintiff was a mere licencee who was using the land with the 1st Defendant’s permission and that she could therefore not claim the land under the doctrine of adverse possession. 6. By way of her Counter Claim, the 1st Defendant prays for an order of eviction against the Plaintiff and for mesne profits for the Plaintiff’s continued use of the land. 7. The doctrine of adverse possession in Kenya is founded under the Limitation of Actions Act, Cap 22 of the Laws of Kenya. Section 7 of the said Act places a bar on actions to recover land after 12 years from the date on which the right accrued. On the other hand, Section 38 of the Act allows a Claimant to apply to Court for orders of adverse possession and provides thus: **“(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.** **(2) An order made under subsection (1) of this section shall by registration take effect subject to any entry on the register which has not been extinguished under this Act.”** 1. The doctrine of adverse possession was aptly defined in ***Mtana Lewa –vs- Kahindi Ngala Mwagandi (2015) eKLR,*** where the Court of Appeal held that: ***“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglect to take action against such person in assertion of his title for a certain period, in Kenya is twelve (12) years. The process springs into action essentially by default or inaction of the owner the essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”*** 1. That was the same position taken by the same Court in ***Mombasa Teachers Co-operative Savings & Credit Society Limited –vs- Robert Muhambi Katana & 15 Others (2018) eKLR,*** where it was held that: **“....... it is settled that a person seeking to acquire title to land by way of adverse possession must prove non-permissive or non-consensual, actual, open, notorious, exclusive and adverse use/occupation of the land in question for an uninterrupted period of 12 years as espoused in the *Latin maxim, nec vi nec clam nec precario*."** 1. Arising from the foregoing, it was clear to me that for one to succeed in a claim for adverse possession he or she has to prove that his or her entry into the disputed land was without the permission of the registered owner, that he or she has occupied the land to the exclusion of the registered owner or any other person and that his or her occupation was open and continuous for a period of twelve (12) years. 2. In the matter before me, the Plaintiff pleaded that while the 1st Defendant is the registered owner of the suit land, the Plaintiff had resided on the suit land ever since she was born in the year 1954. It was her case that before the year 2006 when she constructed a permanent house on the land, they had previously with her parents resided on the land in a semi-permanent house. 3. During the trial however, the Plaintiff changed her position and testified that she was not born on the suit land at Mwembelegeza in Mombasa. Instead she told the Court that she was born in Dagoretti in Nairobi before her parents moved to Mombasa shortly thereafter. 4. In support of her case, the Plaintiff called three (3) other witnesses. Joseph Kamau Njoroge (PW2) had in his statement filed in Court described the Plaintiff as his sister. At the trial, he admitted under cross-examination that the Plaintiff was his cousin. Contrary to the Plaintiff’s pleadings and testimony, PW2 told the Court that the Plaintiff had entered the suit property in the year 2010 and that she was previously residing in Mtopanga before moving to Mwembelegeza area. It was his case that when the Plaintiff and himself discovered that Plot No. 870 Mwembelegeza had not been issued to anyone during the land adjudication process, they had applied to be allocated the same. 5. On his part, Meshack Mwakimodo Mwahikuku (PW4) told the Court that he was part of the verification committee at Mwembelegeza Settlement Scheme and that he had participated in preparing the initial land records which were later used to produce the titles for the registered owners. He told the Court that as per those records, the Plaintiff was the registered owner of Plot No. 876 Mwembelegeza while Plot No. 870 remained blank and was not allocated to anyone. 6. From the material placed before the Court, it was apparent that the suit property was created from an adjudication process conducted by the Ministry of Lands and Physical Planning for the purposes of settling squatters in Mwembelegeza area of Mombasa. That position was confirmed by Edward Ndegwa (DW3) who testified herein as the 2nd Defendant’s witness. DW3, a Senior Surveyor in the Mombasa County Land Adjudication and Settlement Office testified that the suit property was allocated to the 1st Defendant during the exercise conducted in the year 2005 and that the Plaintiff was allocated Plot No. 876 during the same exercise. 7. Testifying at the trial herein, the Plaintiff acknowledged that the said plot No. 876 Mwembelegeza was indeed registered in her name and that her daughter, one Juliana Wanjiku had built a three bedroomed house and some shops thereon. 8. From the material placed before the Court, there was nothing to demonstrate that the Plaintiff had been in occupation of the suit property prior to the year 2010. And while the Plaintiff denied it, it was evident that her entry into the property was the result of a caretaker agreement executed between herself and the 1st Defendant on 1st December 2010. That agreement produced by the 1st Defendant in evidence allowed her to occupy and manage the property in the absence of the 1st Defendant. It was telling that while the Plaintiff denied executing the agreement, she had not taken any efforts to prove that the same was indeed a forgery. 9. As it were, Section 26 of the Land Registration Act establishes that a certificate of title is prima facie conclusive evidence of proprietorship and that the same may only be impeached where there is proof of fraud or misrepresentation involving the proprietor or where there is proof of illegality or procedural impropriety in its acquisition. 10. It was evident that while the 1st Defendant had by the caretaker agreement dated 1st December 2010 permitted the Plaintiff to occupy the suit property, she had by a letter dated 1st March 2021 terminated the caretaker agreement by giving the Plaintiff notice to vacate the suit property. Arising from the foregoing, it was clear to me that any continued occupation of the property after 1st April 2021 when the notice period expired was unlawful and that as such, the 1st Defendant is entitled to mesne profits. 11. In the premises, I find merit in the 1st Defendant’s Defence and Counter Claim and I hereby enter judgment in favour of the 1st Defendant as follows: 12. **The Plaintiff’s suit is hereby dismissed with costs.** 13. **The Plaintiff is hereby directed to demolish the structures built on the suit property and to forthwith vacate the same within 30 days from today failure to which the 1st Defendant shall be at liberty to carry out the demolition and eviction at the Plaintiff’s costs.** 14. **The Plaintiff shall pay to the 1st Defendant Mesne profits assessed at Kshs. 1,000,000/= together with interests at Court rates.** 15. **The Plaintiff shall pay the costs of the counterclaim to the 1st Defendant.** 16. It is so ordered. **Judgment dated, signed and delivered in open court and virtually at Mombasa this 23rd day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) No appearance for the Plaintiff c) Mr. Muchiri Advocate for the 1st Defendant d) Mr. Waga Advocate for the 2nd Defendant