https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3322

Kipkoech & another v Coast Spinners Limited & another (Enviromental and Land Originating Summons E001 of 2024) [2026] KEELC 3322 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEELC 3322 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Enviromental and Land Originating Summons E001 of 2024 JO Olola, J May 26, 2026 Between Peter Kipkoech 1st Applicant Pharos Chemos Kirui 2nd Applicant and Coast Spinners Limited 1st Respondent Registrar of Lands, Mombasa County 2nd Respondent Judgment Background 1.By the Originating Summons dated 22nd April 2024, Peter Kipkoech and Pharos Chemos Kirui (the Applicants) pray for orders as follows:2)That the 1st Respondent’s title to the said land be declared extinguished and or invalid, null and void and the Applicants be registered as the proprietors of the suit land;3)That the Applicants herein be declared to have become the legal owners jointly entitled by adverse possession of over twelve (12) years since 2011 of all that parcel of land comprised in the parcel Section 1 Mainland North/ 1882situate on Greenwood Drive, Nyali Estate, Mombasa County;4)That the Chief Land Registrar do cause the Applicants to be registered as the proprietors jointly of the said parcel of land namely parcel Section 1 Mainland North/ 1882, Situate on Greenwood Drive, Nyali Estate, Mombasa County in place of the above named 1st Respondent in whose favour the land is currently registered; and5)That the costs of this Application be provided for. 2.The Originating Summons is supported by two (2) Affidavits sworn separately by the Applicants wherein they depone that they have together with their families been in continuous uninterrupted occupation of the suit property since the year 2012. 3.The Applicants depone further that when they entered the suit property they met one Darius Mogunde who was also residing on the property. The said Darius relocated to Nairobi in the year 2012 and left the Applicants as the sole occupants of the property. 4.Coast Spinners Limited (the 1st Respondent) is opposed to the Applicants' claim. In a Replying Affidavit sworn on 29th May 2024 by its Director - Diamond Hasham Lalji, the 1st Respondent avers that the suit property belongs to itself having acquired the same on 15th September 1980. The 1st Respondent avers that it has been in charge of the property and that it has been leasing it to different parties. 5.The 1st Respondent avers that in the year 2012, the suit property was leased to an entity known as Big Apple Tours & Safaris Limited and deny that the Applicants were in occupation of the property at the time. The 1st Respondent further asserts that Darius Mogunde was employed as a guard on the property and that the Applicants entered the property on his invitation. 6.The 1st Respondent further asserts that the Applicants were not in continuous adverse and uninterrupted occupation of the property for twelve (12) years as their entry thereon was not adverse. It is their case that the Applicants were employed as gardeners and security guards and that hence they are not entitled to any of the orders sought herein. 7.At the trial herein, the Applicants called two (2) witnesses who testified in support of their case. The 1st Respondent equally called two (2) witnesses in support of their case. Analysis and Determination 8.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 Counsels representing the parties. 9.By their Originating Summons before the Court, the two Applicants pray for orders that this Court declares that the 1st Respondent's title to the Suitland be declared extinguished by the Applicant's occupation for more than 12 years and that the Chief Land Registrar do cause the names of the Applicants to be registered jointly as the proprietors of the suit property. 10.The 1st Respondent is opposed to the claim. It is the 1st Respondent's position that it has always been in charge of the suit property which it has been leasing to different parties from time to time. The 1st Respondent asserts that in the year 2012 when the Applicants claim to have entered the suit property, the same was leased out to an entity known as Big Apple Tours & Safari Limited and hence the Applicants could not have occupied the same. 11.Section 38 of the Limitation of Actions Act, Cap 22, provides that:“(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." 12.Considering the issue in Mtana Lewa -vs- Kahindi Ngala Mwagandi (2015) eKLR, the Court of Appeal held thus:“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 owners, the essential prerequisite 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." 13.Similarly, in Mombasa Teachers Co-operative Savings &Credit Society Limited -vs- Robert Muhambi Katana &15 Others, the Court of Appeal held as follows:“Likewise, 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." 14.Arising from the foregoing, it was clear to me that for one to succeed in a claim of adverse possession, he or she has to prove that the entry into the disputed land was without the permission of the registered owner and that he or she had occupied the land openly for a continuous period of 12 years to the exclusion of the registered owner. 15.In the matter before me, it was the 2nd Applicant's case that he has been continuously living on the suit property since the year 2011. He told the Court that when he first entered the suit property, he had met one Darius Mogunde who was also living on the property before they were later on joined by the 1st Applicant. That was the same position taken by the 1st Applicant who told the Court that he had first entered the suit property in the year 2012 and that he had found the 2nd Applicant and the said Darius Mogunde residing therein. 16.In support of their case, the two Applicants produced photos of alleged family members and birth certificates of their children said to have been born while they resided on the property between the years 2016 and 2020. In addition, they produced minutes of a group calling itself St. Kevin Nyali Boda Boda Self Help Group as proof that they resided on the suit property. 17.From the material presented before the Court, it was apparent that there was a single residential property erected on the suit property. That is the house that the Applicants contended they had shared with Darius Mogunde before Darius left for Nairobi in the year 2012. The Applicants denied that they had been hired by the said Darius as a gardener and security guard respectively. 18.It was not clear to me how the Applicants started residing in the said house with the said Darius. Asked in cross-examination how he came to live in the house, the 2nd Applicant (PW2) testified as follows:“I entered the land in 2011. I just walked in and started living there. There was no tenant on the land. The never employed me.It is true I know Darius Mogunde. I found him on the land. It is not true he employed us as a guard and gardener." 19.On his part, the 1st Applicant in his examination-in-chief told the Court as follows in regard to his entry onto the land.“We came from Eldoret in 2011 - before we started living in the house. One day I passed there and I found the 2nd Plaintiff there carrying water. There was another guy called Darius Mogunde. He later left." 20.I was not persuaded that it was possible for one to just walk into a house and without any arrangement with the occupant start residing therein. I was equally not persuaded that photos of family members and their certificates of birth for their children could be relied upon as proof of possession and/or occupation that could confer proprietary rights upon the Applicants 21.According to the 1st Respondent, the Applicants could not have resided in the house between the year 2011 and 2012as at the time they had leased the house to an entity known as Big Apple Tours & Safaris Limited. In support of that position, the 1st Respondent produced various correspondences between itself and the said Big Apple Tours & Safaris Limited in regard to the management and rental payments for the suit property. 22.A perusal of the said correspondence reveals that the suit property was leased to the said company in January 2010 for a term of 5 years and 3 months. It was also clear that the lessee took possession of the property and occupied it until September 2012 when due to the Lessee's failure to meet their rental obligations, the 1st Respondent terminated the contract. 23.By a Letter dated 13th September 2012, the 1st Respondent wrote to Big Apple Tours & Safaris Limited asking them to make repairs on the suit property noting that the tenant had an outstanding balance of rent arrears in the sum of Kshs. 306,800/-. Again by another letter dated 22nd October 2012, the 1st Respondent reminded the tenant to carry out the required repairs and to settle the outstanding arrears which then stood at Kshs. 82,800/= together with the electricity bill of Kshs. 2,981.56 which was due as at 18th September 2012. 24.Arising from the foregoing, it was evident to me that the Applicants could not have been in exclusive occupation of the property in the year 2011 and 2012 as they claim. It was also clear from the evidence of James Matheka (PW2) that upon termination of the lease, the 1st Respondent executed a security guard service contract with Messrs. Samanje Guards Limited for the purposes of guarding the property situated along Greenwood Drive in Nyali within Mombasa County. 25.In support of that position, PW2 who is a director of the said Samanje Guards Limited produced the said contract for security services dated 1st October 2012 and various invoices raised for payment over a period of time. It was further evident that the said contract required the security company to provide day and night guard services and that it remained in place until 31st December 2016. 26.DW2 told the Court that they then proceeded to hand over the property to the 1st Defendant on 1st January 2017. It was DW2's testimony that as at the time they handed over the premises to the 1st Respondent neither the Applicants nor anyone else resided on the suit property. 27.Accordingly, and from the material placed before the Court, I was unable to find anything in support of the Applicants’ contention that they had been in possession and occupation of the suit property from the year 2012 to the year 2024 when the 1st Respondent moved to kick them out of the suit premises. 28.In the premises, I did not find any merit in the Originating Summons dated 22nd April 2024. The same is hereby dismissed with costs to the 1st Respondent. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 26TH DAY OF MAY, 2026.………………………..J.O. OLOLAJUDGEIn the presence of:a) Mr. Leakey Court Assistant.b) Mr. Gathu Advocate for the Plaintiff/Applicantd) Mr. Wepoh Advocate for the 1st Respondente) No Appearance for the 2nd Respondent