https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3318

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC LC NO. E032 OF 2024 (OS) METTE KJAER .......................................................... PLAINTIFF VERSUS MAX HELLBACK & CLEMENTINE HELLBACK ……….......................... DEFENDANTS JUDGEMENT 1. The Plaintiff commenced this suit vide Originating Summons dated 26th July 2023 where she seeks a determination of the following issues: a) Whether a declaration should issue to the effect that title/ownership by the Respondents/Defendants of a portion equivalent to 0.053 Ha forming part of LR No. 192/39 has been extinguished by adverse possession the Plaintiff/Applicant having occupied the same for a period of more than 12 years. ELC LC NO. E032 OF 2024 (OS) Judgement Page 1 of 20 b) Whether an order should issue to the effect that Mette Kjaer be registered as proprietor /lessee of the portion she occupies equivalent to 0.053 ha forming part of LR No. 192/39 pursuant to Section 17 and 38 of the Limitation of Actions Act. c) Whether an order should issue directing that survey be carried out on LR No. 192/39 to hive off the equivalent of 0.053 Ha occupied by the Plaintiff/Applicant Mette Kjaer and all survey documents be executed by the Court Administrator of this court. d) Whether an order directing the Court Administrator of this court to execute all requisite transfer instruments for conveyance of the 0.53 Ha hived off LR No. 192/39 to Mette Kjaer and the Land Registrar Nairobi be directed to register the Plaintiff Mette Kjaer as the lessee/owner of the said portion. e) Who should bear the costs of this suit. ELC LC NO. E032 OF 2024 (OS) Judgement Page 2 of 20 2. The Originating Summons was supported by the Plaintiff’s supporting affidavit in which she avers that she has been in possession of the equivalent of 0.053 hectares being part of LR No. 192/39 for the last nineteen (19) years from 2004. 3. In opposition, the Defendants filed a replying affidavit sworn by the 1st Defendant on 12th May 2025. He contends that he owns LR No. 192/39 and that he has never permitted the Plaintiff to utilize it. 4. The suit was heard by way of viva voce evidence. The Plaintiff’s evidence 5. The Plaintiff testified as PW1 and produced her list and bundle of documents dated 3rd May 2025 as P. Exhibits No. 1- 5. She said that she purchased LR No. 192/37 and 192/38 from the Defendants who subsequently executed a transfer of the two properties into her name. Further, that the Defendants’ residence, LR No. 192/39 borders her two parcels and in 2004, she mistakenly erected a chain link ELC LC NO. E032 OF 2024 (OS) Judgement Page 3 of 20 fence along the boundary with LR No. 192/39, planted kei - apple and other trees along the hedge and also built a water tank including a cottage. 6. She averred that being her immediate neighbours, the Defendants have always been aware of her occupation but they have never raised any complaint and that in March 2023, they informed her that they were intent on disposing of LR No. 192/39 and brought several purchasers, who raised the issue of her encroachment into the said land. 7. She claimed that in April 2023, the Defendants instructed Ardhi Surveys Consultants to visit the site and mark boundaries between LR No. 192/37, 192/38 and 192/39. Further, that the report of the survey is to the effect that she has been in occupation of the equivalent of 0.053 ha forming part of LR No. 192/39 since 2004 thus her claim for adverse possession has crystallized. ELC LC NO. E032 OF 2024 (OS) Judgement Page 4 of 20 8. In cross-examination, PW1 insisted that she has built a water tank, cabro road and a cottage for her guests on the portion of land she is claiming through adverse possession. Further, that the cottage was designed by her husband and built by their friends but they did not get approval to build it. She admitted that they have been close friends and neighbours with the Defendants and their children would play together through the gate between their properties. It was her testimony that she put up the water tank in 2004 but cottage in 2018. She claimed she had guests residing in the cottage in 2019. She further confirmed that a cabro was done along the hedge in 2018. 9. She stated that her husband died in 2022 and that though he had asked the 1st Defendant to inform him, if he wanted to sell LR No.192/39, he was not intent on buying it. 10. She reiterated that, what she was claiming is about 1/8 of an acre while the initial land she purchased measures one acre. ELC LC NO. E032 OF 2024 (OS) Judgement Page 5 of 20 She conceded that she is not licensed to carry out a home stay business on the property. The Defendants’ evidence 11. The 1st Defendant testified as DW1. He produced his list and bundle of documents dated 12th May 2025 as D. Exhibit 1. He admitted that he sold to the Plaintiff and her late husband, Mr. Marete Kinoti, LR NO.192/37 and LR No.192/38. It was his testimony that he considered the couple as family friends as he was even the best man at their wedding. He testified that due to the nature of their friendship and neighborliness, they agreed that they would maintain the small pre-existing access gate between their properties to allow free movement. Further, that the area has a kei-apple fence. 12. He denied ever giving the Plaintiff the portion she claims and contended that it has always been part of his property. Further, that since he is a citizen of both Kenya and Switzerland, he frequently travels to Switzerland for months ELC LC NO. E032 OF 2024 (OS) Judgement Page 6 of 20 at a time in any given year and unfortunately, the Plaintiff and her late husband took advantage of his absence during COVID-19 pandemic to build a timber house that stands on the disputed portion of the property. 13. He averred that he had informed the Plaintiff and her husband that he intended to sell his property because they were good friends and they had asked him to inform them. Further, that the Plaintiff had even expressed interest to buy, which is sufficient evidence that she is aware that her claim for adverse possession is untenable. 14. He pointed out that the kei-apple fence is within his property, the Plaintiff has encroached his property by approximately 534 square meters and that her timber house and water tank are partly on his land and so is the cabro paved parking area. 15. In cross-examination, DW1 confirmed that the Plaintiff has been in occupation of LR 197/27 and 192/38 since purchase in 2001 and that both properties have their own access ELC LC NO. E032 OF 2024 (OS) Judgement Page 7 of 20 roads. He pointed out that they started having problems during COVID - 19, insisting that the Plaintiff started encroaching on the said portion during the time between 2020 -2022. Further, that when they discovered the encroachment, they issued a demand and called a surveyor to establish beacons. He insisted that he has never granted the Plaintiff permission to use his land. Submissions 16. The Plaintiff submitted that she took possession of 0.053 Ha forming part of LR No. 192/39 in the year 2001 immediately upon purchase of LR No. 192/38. She argued that since DW1 admitted that he knew her possession and even testified that there exists a small gate connecting LR No. 192/38 and 192/39, where either party used it to gain access to the other as they are family friends, it is evidence that she has been in open and notorious possession to the knowledge of the Defendants who have admitted being the owners of the disputed portion. ELC LC NO. E032 OF 2024 (OS) Judgement Page 8 of 20 17.She also submitted that from her actions, she asserted a hostile title to the disputed portion forming part of LR No. 192/39 by demarcating it using ke-apple hedge, building a water tank and putting up a cottage, which developments subsist to date. She further claimed that the said developments could not have been undertaken in the year 2020 during COVID - 19 pandemic as the Defendants claimed and pointed out that kei-apple cannot reach the height depicted in photographs she produced in four (4) years. To buttress her averments, she relied on the case of Mbira v Gachuhi (2002) IEALR 137. 18. On their part, the Defendants submitted that the Plaintiff has not met the elements of a claim for adverse possession as stated in the following decisions: Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] KEA 942(KLR) and Karimi v Tapan Property Management Limited ELC LC NO. E032 OF 2024 (OS) Judgement Page 9 of 20 (Environment & Land Case 23 of 2019) [2023] KEELC 17123(KLR). 19. They contended that apart from mere allegations, the Plaintiff did not lead evidence that she has been on the suit property for more than twelve (12) years and that there is no credible evidence on when the alleged possession allegedly became adverse. 20. They submitted that the Plaintiff cannot base her claim on the illegal activities she has conducted on the part of the property she is now claiming. To this end, they relied on the case of Njinu v Orkesi & 5 others; Tumpers (Interested Party) [2024] KEELC 3765(KLR). 21. To buttress their averments, the Defendants also relied on the following decisions: Gabriel Mbui v Mukindiia Maranya [1993] eKLR, Karimi v Taipan Property Management Limited (Environment & Land Case 23 of 2019) [2023] KEELC, Thomas v Ngugi (Environment & ELC LC NO. E032 OF 2024 (OS) Judgement Page 10 of 20 Land Case E003 of 2021) [2024] KEELC 5857 (KLR) (26 August 2024), among others which the court has carefully considered. Analysis and Determination 22. Upon consideration of the instant Originating Summons including the respective affidavits, testimonies of the witnesses, exhibits and rival submissions, the only issue for determination is whether the Plaintiff has proved her claim of adverse possession over the portion measuring approximately 0.053 Ha to be hived off LR No. 192/39. 23. The Plaintiff's case is that she mistakenly fenced off part of LR No. 192/39 in 2004, planted a kei-apple hedge, constructed a water tank, a cottage, and a cabro-paved area, and has remained in uninterrupted occupation for over nineteen (19) years. She testified that the Defendants, being her immediate neighbours and close friends, were aware of her occupation throughout that period and never objected until 2023 when they intended to sell their property. ELC LC NO. E032 OF 2024 (OS) Judgement Page 11 of 20 24. The Defendants do not dispute that there is an encroachment onto LR No. 192/39. However, according to DW1, the encroachment only occurred between 2020 and 2022 during the COVID-19 period when the Defendants had travelled to Switzerland. He also testified that he sold LR No. 192/37 and 192/38 to the Plaintiff and her now late husband and that the properties border theirs, which is LR No. 192/39. He contended that while they considered the Plaintiff to be family friends, there is no time that they allowed her to encroach on their land. 25.During cross examination PW1 claimed that she put up the water tank in 2004 but cottage in 2018. Further, that it was her husband who designed the cottage. She claimed they had guests residing in the cottage in 2019. She further confirmed that a cabro was done along the hedge in 2018 and there was a gate between the Defendants’ property and her property. Further, that they never obtained any approval to build the cottage. ELC LC NO. E032 OF 2024 (OS) Judgement Page 12 of 20 26.The Defendants insisted that the Plaintiff did not produce any evidence to demonstrate that she obtained the requisite permits and license from Local Authorities to construct a fence, water tower and cottage and that there is no evidence on when the alleged occupation commenced. 27. The legal provisions governing adverse possession are stipulated in sections 7 and 38 of the Limitation of Actions Act. 28. Section 7 of the Limitation of Actions Act provides as follows “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.’ 29. While Section 38 of the Limitation of Actions Act provides that: “Where a person claims to have become entitled by adverse possession to land registered under ELC LC NO. E032 OF 2024 (OS) Judgement Page 13 of 20 any of the Acts cited in section 37 of this Act, 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.” 30. The Court of Appeal in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR provided tenets on adverse possession and stated thus: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action of the owner. The essential prerequisites being that 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 ELC LC NO. E032 OF 2024 (OS) Judgement Page 14 of 20 publicity and in extent to show that possession is adverse to the title owner.” 31. The Court of Appeal also restated what a party making a claim for adverse possession ought to prove in Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] eKLR as follows; “And in order to be entitled to the land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of 12 years either after dispossessing the owner or by the discontinuation of possession by the owner on his own volition…..” 32. Further, in Mate Gitabi vs Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others [2017] eKLR, the Court of Appeal stated inter alia: “For one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is without secrecy, without force, and without license or ELC LC NO. E032 OF 2024 (OS) Judgement Page 15 of 20 permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin maxim nec vi, nec clam, nec precario…” 33. In the current scenario, the Plaintiff and her husband purchased two neighbouring parcels of land from the Defendants. PW1 in her testimony claims she entered the disputed portion of land and put up a Kei apple hedge, a cottage and water tank. However, during cross examination, she admitted that she put up the cottage in 2018 and had guests thereon in 2019. PW1 confirmed that she did not have any approval from the Local Authorities to construct a cottage and water tank. DW1 testified that PW1 started interfering with the disputed property during COVID – 19, pandemic as he travelled out of the country. It emerged that PW1 and her husband had initially wanted to purchase the bigger parcel of land where the disputed portion is. Further, it was not disputed that both the Plaintiffs and Defendants ELC LC NO. E032 OF 2024 (OS) Judgement Page 16 of 20 were family friends, had a gate between their properties where their children could access. It further emerged that the Defendants had actually complained about the Plaintiff’s encroachment and even brought in a surveyor to demarcate the boundary. 34. From the testimony of PW1, she did not confirm the exact date or even month that she entered the disputed portion of the suit property, yet this is a major requirement in a claim for adverse portion, to enable the court determine when time started running. I note PW1 simply stated that she entered the disputed portion in 2004, which I do not find plausible. During her examination in chief, she claimed to have entered the disputed portion in 2004, yet at cross examination she admits to have constructed the cottage in 2018. 35. Further, PW1 admitted that there was a gate connecting their two properties and to my mind, I find that there was permission from the Defendants for her to use the portion ELC LC NO. E032 OF 2024 (OS) Judgement Page 17 of 20 where the said gate was. Since PW1 did not prove when she commenced building the cottage on the suit property, noting that there was indeed a requirement for her to prove that she indeed obtained approvals from the Local Authority to do so, at this juncture I opine that the Plaintiff simply wanted to acquire the portion she had trespassed upon and had to seek it through adverse possession. 36. It is my considered view that the Plaintiff indeed commenced dealing with the disputed portion of land adversely around 2018 and not 2004 as claimed. Further, that she continued doing so, during the COVID pandemic. It is trite that in a claim for adverse possession time stops running when a suit is filed and this in essence means that time herein started running in 2018 and stopped in 2024, which was only six (6) years. It is worthnoting that PW1 admitted that initially they had an interest in purchasing the Defendants’ land but seemed to have changed their mind around 2020. Further, that after being informed that she had trespassed on a ELC LC NO. E032 OF 2024 (OS) Judgement Page 18 of 20 portion of the said land, she turns around and claims an 1/8 of an acre of the said land, through adverse possession. 37. I opine that the burden of proof placed upon the Plaintiff was higher as she was claiming land she had allegedly trespassed upon and it was incumbent upon her to confirm the exact date or month of entry into the disputed portion, without permission of the Defendants, but she has failed to discharge it, to the required standard in a claim for adverse possession. Further, from the evidence tendered, it also emerged that there was a boundary dispute between them. 38. Based on the evidence as presented in court while associating myself with the decisions cited above, I find that even if the Plaintiff had built on the disputed portion as claimed, her claim for adverse possession had not crystallized by the time she filed the instant suit. In computing this time, I find that the Plaintiff only filed the suit after six years, after entry into the disputed portion of land. In the circumstances, I find that the Plaintiff has not has ELC LC NO. E032 OF 2024 (OS) Judgement Page 19 of 20 proved her claim of adverse possession over the portion measuring approximately 0.053 Ha to be hived off LR No. 192/39. 39. It is against the foregoing that I find the Plaintiff has not proved her case on a balance of probability and will dismiss it with costs to the Defendants. DATED SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JUNE, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Njogu for Karanja for Plaintiff Omino for Kimani for Defendant Court Assistant: Cherono ELC LC NO. E032 OF 2024 (OS) Judgement Page 20 of 20