https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4261

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MALINDI** **ELC NO. E100 (O.S) OF 2025** **JOHNSON NYAMBU IDI** **RENSON IDI NYAMBU ……………………………………PLAINTIFFS** **VERSUS** **CHAI MWAJEFWA BAGAJA…………………………..…. DEFENDANT** **JUDGMENT** 1. The Plaintiffs' Originating Summons, dated 24th February 2025, and filed on 3rd November 2025, against the Defendant herein, seeks, inter alia, orders declaring the Plaintiffs as the lawful proprietors of the suit land, Kilifi/Vyambani/121, by virtue of adverse possession, as delineated in the Originating Summons. 2. The Plaintiffs' Originating Summons is founded upon their physical, exclusive, continuous, and uninterrupted use and occupation of the suit property, identified as Kilifi/Vyambani/121, measuring approximately 3.34 hectares, for a period exceeding twelve years. 3. Accordingly, the Plaintiffs request a declaration affirming their peaceful, open, and uninterrupted possession thereof. Moreover, the Defendants have demonstrated no interest in the suit property and have failed to provide any notice of vacant possession to the Plaintiffs concerning the said property. 4. The Defendant was notified via his advocate’s email, millergeorgeadvocates@gmail.com, which responded to the demand letter served on him, as detailed in the Plaintiffs' affidavit of service dated 21st November 2025. Despite being served with the Originating Summons, the Defendant failed, refused, or neglected to participate in the proceedings. As a result, the Honorable Court directed that the Plaintiffs' Originating Summons proceed on affidavits, documents, statements, and affidavits on record. The Plaintiffs were also instructed to file their submissions, and they now do so. 5. After hearing the Court direct the filing of written submissions, I confirm receipt of submissions from counsel for the Plaintiff. 6. Based on the materials before me, the issues I frame for the determination of this Court are whether the Plaintiffs have acquired rights in the suit property by adverse possession, whether the Defendant's rights in the suit property have been extinguished, and who bears the Costs of the suit. 7. Plaintiffs Johnson Nyambu and Benson Idi Nyambu, supported by their affidavits sworn on February 21, 2025, and their statements dated February 24, 2025, claim they were born on the disputed land in 1961 and have continuously resided on and used the property for more than twelve years. During this period, they cleared the land, built their homes, and cultivated cash crops. Although the Defendant was aware of their ongoing, open use of the land, the Defendant has never obstructed or interfered with their legitimate and notorious occupation. 8. The Plaintiffs’ counsel submits that the Plaintiffs have acquired rights in the suit property by adverse possession. 9. As rightly submitted by counsel for the Plaintiffs, the principle of adverse possession is legally grounded in Sections 7, 9, 13, 37, and 38 of the Limitation of Actions Act (Cap 22) Laws of Kenya. 10. In **Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR**, adverse possession was defined as: ***"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 neglects 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 fore or stealth or under the license of the owner. It must bé adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner..."*** 1. In **Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau [2013] KEHC 1919 (KLR),** the Court held that to establish adverse possession, the Applicant must prove the following conditions: ***“Adverse Possession requires at a minimum five basic conditions being met to perfect the title of the adverse party. These are namely*(a) open and notorious use of the property. *For this condition to be met the adverse party use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim.*** ***The occupation and use of the property by the adverse party must be of such character that would give notice to a reasonable person that someone would claim. If legal owner has knowledge, this element is met. This condition is further met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.*(b)Continuous use of the property *– The adverse party must, for statute of limitations purposes, hold that property continuously for the entire limitations period, and use it as a true owner would for that time. This element focuses on adverse possessor's time on the land, not how long true owner has been dispossessed of it. Occasional activity on the land with long gaps in activity fail the test of continuous possession. Incidences such as merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If the true owner ejects the adverse party from the land, verbally or through legal action, and after some time the adverse party returns and dispossesses him again, then the statute of limitation starts over from the time of the adverse party return. He cannot count the time between his ejection by the true property owner and the date on which he returned. (c)*Exclusive use of the property*– The adverse party holds the land to the exclusion of the true owner. If, for example, the adverse party builds a barn on the owner's property, and the owner then uses the barn, the adverse party cannot claim exclusive use. There may be more than one adverse possessor, taking as tenants (i.e. owners) in common, so long as the other elements are met.*(d)Actual possession of the property*– The adverse party must physically use the land as a property owner would, in accordance with the type of property, location, and uses. Merely walking or hunting on land does not establish actual possession.*** ***The actions of the adverse party must change the state of the land, as by*clearing*,*mowing*,*planting*,*harvesting fruitof the land*,*logging*or*cutting timber*,*mining*,*fencing*,*pulling tree stumps*,*running livestock*and constructing buildings or other improvements. If the property is residential, such actions may include*mowing the yard*,* trimming trees*and* hedges*,*changing locks*,*repairing or replacing fixtures*(such as a swimming pool, sprinkler system, or appliances), or other actions so as to maintain the property for its intended use, to the exclusion of its true owner.*(e)Non-permissive, hostile or adverse use of the property*– The adverse party entered or used the land without permission. Renters, hunters or others who enter the land with permission are not hostile. The adverse party motivations may be viewed by the court in several ways:*Objective view*—used without true owner's permission and inconsistent with true owner's rights.*Bad faith*or intentional trespass view—used with the adverse possessor's subjective intent and state of mind.*Good faith*view where the party mistakenly believed that it is his land. The law requires that the adverse party openly claims the land against all possible claims.”*** 1. In this matter, the Plaintiffs' evidence went uncontroverted, and they have sufficiently demonstrated continuous use of the suit property for more than twelve (12) years. This is consistent with the provisions of Section 13 of the Limitation of Actions Act. The evidence on record shows uninterrupted occupation and use of the land from as early as 1961 to date, without any break, eviction, or assertion of the Defendant's right to recover the land. Consequently, the Plaintiffs have fully satisfied the elements required to invoke adverse possession in their favor. 2. Accordingly, judgment is entered in favor of the Plaintiffs as outlined in the OS. As the case was uncontested, I shall not award any costs. **Dated, signed, and delivered virtually in Nyeri on this 9th day of July 2026** **E. K. MAKORI** **JUDGE** **In the presence of:** **Ms. Onyango for the Plaintiff** **Denis - Court Assistant**