https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3915

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ORIGINATING SUMMONS, NO E015 OF 2024[OS]** **IN THE MATTER OF TITLE KNOWN AS KWALE/DIANI SS/251** **AND** **IN THE MATTER OF; APPLICATION FOR DECLARATION THAT THE APPLICANT HAS OBTAINED OWNERSHIP OF THE ABOVE SAID LAND BY WAY OF ADVERSE POSESSION** **BETWEEN** **MASUDI HAMISI MWAMNYENDESI……PLAINTIFF/APPLICANT** * **VERSUS -** **JANET FLORA MUNA……………..DEFENDANT/RESPONDENT** **JUDGEMENT** 1. **Preliminaries** 2. The Judgement of this Honourable Court pertains to the civil suit commenced as an Originating Summons dated 24th December, 2024. It was instituted by *MASUDI HAMISI MWAMNYENDESI* the Plaintiff/Applicant herein. The suit was predicated on the doctrine of land adverse possession as primarily provided for under the provision of Sections 7, 13, 17 and 38 of the Limitation of Actions Act, Cap. 22. 3. Despite of the service having been effected upon the Defendant/Respondent herein, by way of substituted service through a newspaper of wide circulation the suit was undefended. It should be noted that by an order of this honourable court, the Defendant/Respondent was served. Thus, the court was satisfied that there was proper service effected. 4. **The case of the Plaintiff/Applicant** 5. The Plaintiff/Applicant sought for the following orders before court:- 6. ***Spent.*** 7. ***That the Respondents interest in all that parcel of land situated in Kwale County and known as KWALE/DIANI SS/251 measuring approximately 1/9 Hectares has been extinguished.*** 8. ***That the Registrar of Titles Kwale County do delete entry in favour of the Respondent in the title of land described in paragraph 2 above or register appropriate discharge in respect of the Applicant thereof without gazzettement.*** 9. ***That the Applicant be registered as the proprietor of all that parcel of land situated in Kwale County and known as KWALE/DIANI SS/251 measuring approximately 1/9 Hectares which said piece of land comprised in a certificate of title registered in the land titles registry at Kwale in place of JANET FLORA MUNA by reason of the fact that the Applicant has become entitled to the said land by adverse possession.*** 10. ***That the Registrar of Titles Kwale County do issue certificate of titles for the parcel land situated in Kwale County and known as KWALE/DIANI SS/251 measuring approximately 1/9 Hectares which said piece of land comprised in a certificate of title registered in the land titles registry at Kwale in the name of JANET FLORA MUNA*** 11. ***That the orders referred to in paragraphs 2,3,4 and 5 above be registered against the titles to all that parcel land situated in Kwale County and known as KWALE/DIANI SS/251 measuring approximately 1/9 Hectares which said piece of land is comprised in a certificate of titles registered in the land titles registry in Kwale in terms of section 38[2] of the Limitation of Action Act Chapter 22 Laws of Kenya.*** 12. The originating summons was premised upon grounds listed on its face and the supporting affidavit of MASUDI HAMISI MWAMNYENDESI the Plaintiff/Applicant herein. The Applicant averred that:- 13. At all times material to the suit he has been living on the suit property KWALE/DIANI SS/251 measuring approximately 1.9Hectares (Hereinafter referred to as “The Suit Land”) which parcel of land is comprised in a certificate of title registered in the lands title registry at Kwale and was delineated, demarcated and described on the land survey plan. 14. He had occupied the suit property for over 40 years together with his family and the property is the only home that they had ever known. 15. Their occupation had resulted in the development of the property and which had been without hindrance or any interruption. 16. He maintained that the suit property belonged to him and that he had legally acquired its ownership having stayed on the same as per the Limitation of Actions Act, Cap. 22. 17. According to the applicant, allotment of the suit property took place in the year 1978, however his name was not on the list and the property was allotted to a third party who is the Respondent herein. 18. The Respondent sold some portions of the suit property. 19. In the year 2003 the District Land Adjudication Officer visited the suit property and ascertained that indeed the Applicant had uninterrupted possession of the suit property since the year 1977 and had developed it since the said year. 20. He had tried adjudicating the matter before the tribunal and the then minister of local government the late Honourable Karisa Maitha as per the letters dated 26th June, 2003 and 30th June, 2003. 21. He was bound to suffer irreparable damage in the event that the orders sought are not granted and hence the action to commence the instant suit. 22. **The testimonies by the Plaintiff** 23. **Examination of in Chief by the PW - 1 by M/s. Apio Advocate.** 24. PW – 1 was sworn and testified in Swahili language, He was called Masudi Hamisi Mwanyendesi, a citizen of Kenya and holder of the national identity card bearing al the details as shown to Court. He was a farmer for over 40 years. He recorded witness statement dated 27th December, 2024 and wished to adopt it in evidence. He was born in Msambweni in the year 1956. That he lived in Diani Settlement Scheme and has been on the suit property KWALE/DIANI SS/251 for over 40 years. He lived there with his family. 25. He stated that he had made several developments on the land which included a permanent house and has cultivated several crops on the property like mangoes and tamarind and also kept livestock. 26. He started living on the land as evidenced by the letter dated 26th June 2003. It indicated that he had written a letter dated 24th May, 2003 to the District Commissioner, Kwale. It was a complaint that though he owned the land from the year 1977 but appeared it had been illegally sold to one John Mutisya and David Mwangi in the year 2002 and they were claiming to be having title deed. He had been resisting them from accessing it. 27. He had buried his child – Ziade Masudi on the suit land. 28. He stated that he had never met the Respondent Janet Flora Muna from the year 1977 – Entry No. 11 of the Green card dated 11th June, 2010. when He urged the court to give him the suit property. 29. **Examination in Chief of PW – 2 by M/s. Apio Advocate.** 30. PW - 2 was sworn and testified in Swahili language. She was called Riziki Masudi Yanga, a citizen of Kenya and holder of the national identity card bearing all the details on it as shown to court during the hearing. She informed the Court that the Plaintiff was her father. She was born in the year 1976. She was born on the suit property and had lived there. The witness adopted her statement jointly with PW - 1 as part of her evidence in chief. The witness stated that they had developed the suit property with semi-permanent and permanent structures thereon and that her sister had been buried on the suit property. 31. **Examination in Chief of PW – 3 by M/s. Apio Advocate** 32. PW - 3 was sworn and testified in Kiswahili language. He was called Juma Masudi Yanga a citizen of Kenya and holder of the national identity card bearing all the details on it as shown to court during the hearing. testified that he was born in the year 1980 on the suit property. The Plaintiff was his father. He adopted his statement dated 27th December, 2024 as part of his evidence in chief. The witness testified that they had made developments on the suit property and reared livestock on the property. Also that their younger sister was buried on the suit property. 33. **Examination – in – Chief of PW – 4 by M/s. Apio Advocate** 34. PW - 4 was sworn and testified in English language. He was called Suleiman Yusuf, the Assistant Chief Gombato location in Ukunda. PW - 1 was known to him since his childhood. That the suit property was also known to him. He stated that he had never received any dispute over the suit property. The witness confirmed that the Plaintiff lived on the suit property and his occupation was without any interference. He stated that the land is situated in Diani Scheme opposite Mvindeni market, it measured 4.6Acres. 35. The Plaintiff and his family engage in farming on the property and keep livestock. That the property has a perimeter wall. He urged the court to consider that the Plaintiff is the rightful owner of the suit property. 36. **Examination – In – Chief by the PW – 5 by M/s. Apio Advocate** 37. PW - 5 was sworn and testified in Kiswahili language. He was called Shaban Rashid Mademu a citizen of Kenya and holder of the national identity card bearing all the details on it as shown to court during the hearing. He adopted his statement recorded on 25th November, 2025 as part of his evidence in chief. He stated that the Plaintiff was known to him as he was his neighbour for 44 years. 38. The Plaintiff and his family have lived on the suit property and have developed both permanent and semi-permanent structures on the suit property. He stated that he had never seen any interruptions of the Plaintiff’s occupation of the suit property. He stated that the Plaintiff was the owner of the suit property and had set up his home thereon. 39. The Plaintiff’s case was marked as closed. 40. **Submissions** 41. On 11th December, 2025, while the Plaintiff was before court, Plaintiff’s Counsel was directed to have the suit disposed of by way of written submissions. Subsequently, the Plaintiff complied and a summary of the same is as here below. 42. **The Written Submissions by the Plaintiff/Applicants** 43. The Applicant filed written submissions through the Law firm of Angelline Omollo & Associates Advocate. The same are dated 4th February, 2026. M/s. Apio commenced the submission by providing a brief of the suit. The Leraned Counsel identified two ( 2 ) issues for determination; 1. Whether the Plaintiff has been in open continuous exclusive and adverse possession of the suit property for the statutory period of 12 years 2. Whether the Plaintiff/Applicant is entitled to be registered as the owner of plot no KWALE/DIANI SS/251 and be issued with certificate of urgency 44. On the first issue for determination, it was submitted that the applicant has been in occupation of the suit property since the year 1977. He had been cultivating the suit property since then and has put up both semi-permanent and permanent houses. The Learned Counsel stated that the occupation of the suit property by the applicant has been open continuous and uninterrupted since the time the property was allotted. That the occupation was therefore within the prescribed 12-year period for adverse possession. 45. The Learned Counsel submitted on the second issue for determination and stated that by operation of the limitation of actions act, the Plaintiff’s occupation from the year 1977 had matured potentially extinguishing the registered owners title by the year 2020. That the Plaintiff had proved he had entered the suit property earlier, cultivated the same and put it into his use and further making it his home. That he had demonstrated continuity in occupation and was thus entitled to be granted the orders sought. 46. In conclusion, the court was urged to allow the originating summons as filed before this honourable court. 47. **Analysis and Determination** 48. I have keenly assessed the filed pleadings filed by the Plaintiff herein, the written submissions, the authorities cited, the relevant provisions of the Constitution of Kenya, 2010 and the statures. 49. For the Honourable Court to reach an informed, Equitable and fair decision, it has condensed the subject matter into the following four [4] salient issues for its determination. These are namely: - 1. ***How and when did the Applicant take possession of the suit property?*** 2. ***What is the nature of the Applicant’s possession and occupation and for how long?*** 3. ***Which orders should issue.*** 4. ***Who will bear costs of the suit*** ***ISSUE No. a). How and when did the Applicant take possession of the suit property?*** 1. Before proceeding on with the issue under this sub – title the Honourable Court observes that **“Usucapio”,** a legal concept in roman law which dealt with acquisition of ownership of property through possession is what informs the basis of what is before this Honourable court for determination. Overtime, the aforestated concept evolved into a principal of law commonly referred to as adverse possession in English law, a residual source of law in Kenya. 2. It is noteworthy that the Defendant did not participate in the suit despite service being effected on him. However, the Applicant does not escape the burden and standard of proof which he has to satisfy and discharge in accordance with the law in order for his claim to succeed. This Court has a duty to interrogate and evaluate uncontroverted evidence in order to determine whether the applicant is entitled to the prayers sought. **Section 107 (1) of the**[**Evidence Act**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1963/46)**provides that** **“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”** **Section 108 provides;** **“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”** **And section 109 provides;** **“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided for by law that the proof of that fact shall lie on any particular person.”** 1. In the case of:- *“*[***Charter House Bank Limited (Under Statutory management – Versus - Frank N. Kamau***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2016/153)***[2016] eKLR”****,* the Court of Appeal when discussing “**the burden of proof”** upon the Plaintiff in a situation where the Defendant failed to adduce evidence stated that:- ***“we would therefore venture to suggest that before the trial court can conclude that the Plaintiff’s case is not controverted or is proved on a balance of probability by reason of the Defendant’s failure to call evidence, the court must be satisfied that the Plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the Defendant.... The Plaintiff must adduce evidence, which in the absence of rebutted evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the Defendant has not testified"*** 1. All said and done, the doctrine of Land adverse possession in Kenya is embodied in the provision of Sections 7, 13 & 38 of the Limitation of Actions Act, Cap. 22 in these terms: **“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 is first accrued to some person through whom he claims, to that perso**n”. 1. Section 13 of the Act is in these terms: **“(1) A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession”** 1. Section 17 of the said Act stipulates that upon the expiry of the period (12 years) prescribed by the Act for a person to bring an action to recover land, the title of that person to the land stands extinguished. 2. The Supreme Court of India discussed the essentials of adverse possession in the case of:- “***Karnataka Board of Wakf – Versus - Government of India & Others (2004) 10 SCC 779”*** and stated as follows:- ***“In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.”*** 1. The court in the case of:- *“*[***Gabriel Mbui – Versus - Mukindia Maranya***](http://kenyalaw.org/caselaw/cases/view/22632)***[1993]eKLR”,***defined adverse possession as:- ***“... the non-permissive physical control over land coupled with the intention of doing so, by a stranger having actual occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owner’s enjoyment of land for purposes for which the owner intended to use it.”*** 1. The principle of adverse possession was more elaborately set out in the case of “[***Wambugu – Versus - Njuguna***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/1983/69)***[1983] KLR 172”****,* where the Court held that: ***“In order to acquire by the statute of limitations title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose of which he intended to use it.***” And that: ***“The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession of the requisite number of years.”*** 1. The Court of Appeal in the case of**“*Benjamin Kamau Murma & Others – Versus - Gladys Njeri, C A No. 213 of 1996”* held as follows:-** **“The combined effect of the relevant provisions of sections 7, 13 and 17 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya is to extinguish the title of the proprietor of land in favour of an adverse possessor of the same at the expiry of 12 years of adverse possession of that land.”** 1. The onus is on the person or persons claiming adverse possession: **“…… to prove that they have used this land which they claim as of right: Nec vi, Nec clam, Nec precario (No force, no secrecy, no evasion). So the Applicant s must show that the company had knowledge (or the means of knowing, actual or constructive) of the possession or occupation. The possession must be continuous. It must not be broken for any temporary purpose or by any endeavours to interrupt it or by any recurrent consideration’’** 1. It is the Applicants case that the suit property herein was allotted in the year 1977. That despite being on the ground, the property was given to a third party being the Defendant herein. That some parts of the property were sold but the remainder of the same is in his occupation. The Applicant’s testimony was corroborated with that of his children PW - 2 and PW- 3. The testimony of PW - 4 the local elder also confirmed his occupation of the property and the same was corroborated by PW - 5 who stated that he had witnessed the Applicant’s occupation of the property for a very long time as they had been and still are neighbours. 2. In my view, the Applicants herein have been able to prove that they have been in open, continuous, uninterrupted use of the suit property as per the requirements of the Law. ***ISSUE No. b). What is the nature of the Applicant’s possession and occupation and for how long?*** 1. The Applicant’s possession of the property and occupation is de-facto. The Applicant and his witnesses stated that they have built both permanent and semi-permanent houses on the suit property and in which they all reside in. Photographs in confirmation of this were availed before this court and which the court has had the chance to peruse and familiarise with. It was further stated that they engage in farming of mangoes and tamarind on the property and also keep livestock thereon. 2. All these activities point towards the fact that the suit property is occupied by the Applicant and his family who have put the same in use. No evidence has been availed before the court to the contrary. The Applicant has stated that he has been in occupation of the property since the year 1977. The same was confirmed by the letter by the District Land Adjudication Officer dated 26th June, 2003. The court has further taken note of the letters made to the Minister of land on 26th June, 2003 and 30th June, 2003 which in my opinion sought to cement his rights on the suit property by virtue of his continued use and occupation. In the case of:- *“****Kisumu Civil Appeal No. 27 of 2013; - Samuel Kihamba – Versus - Mary Mbaisi [2015] eKLR”***the court held that for one to succeed in a claim for adverse possession, one must prove and demonstrate that he has occupied the land openly, and without license or permission of the land owner, with the intention to have the land. The Applicant’s occupation is thus confirmed to be more than the 12-year period stipulated by the Limitation of Actions Act, Cap. 22. 3. There has been no indication that the occupation and use was at any given point interrupted by any party and specifically the Respondent. It is trite that the filing of a suit asserting rights over land stops time from running in adverse possession. No evidence has been tendered before court suggesting in any way that the Applicants occupation of the suit property was ever contested by the Respondent in court. 4. The Applicants have produced a copy of the green card to the suit property and from its record, the suit is currently registered under the names of the Respondent herein. The mandatory provisions of **Order 37 Rule 7 of the Civil Procedure Rules** requires that an application for **adverse possession**be accompanied with a title deed extract. Does the failure to producing the title deed invalidate the adverse possession claim? 5. The Applicant has relied on the green card indicating the history of the suit parcel from the time it was first registered under the Settlement Trust Fund. Consequently, the land was registered under the Respondents name. It is noteworthy that the land was initially registered under the Registered Land Act, Cap. 300 (Now Repealed) which is now governed by The Land Act, 2012. Unlike the current Land Act No. 6 of 2012, the RLA held more weight on having the chronological order of the history of the land on its registration from the first to last entry. Indeed, a proprietor of land cannot wave a title deed without asserting how they came into ownership of the same. 6. In my opinion the green card forms cogent evidence as to the current status on ownership of the land as it gives history of its registration. The same having not be challenged, I find it that the ownership of the suit property has been established as being in the name of the Respondent. It was the evidence of the Applicant that the Respondent has never been in use and occupation of the suit property. That she is unknown to him. ***ISSUE No. c). Which orders should issue?*** 1. From the evidence tendered above, it is confirmed that the Applicant’s occupation of the suit property has been to the exclusion of all others including the true owner of that land. See the case of:- “***Maweu – Versus - Liu Ranching & Farming Co - operative Society [1985] eKLR as quoted in Civil Appeal No 164 of 2011 Gachuma Gacheru – Versus - Maina Kabuchwa [2016] eKLR”*** where the Court held:- ***“Adverse possession is a fact to be observed upon the land. It is not to be seen in a title”*** For that reason, the Applicants claim for adverse possession succeeds as prayed. ***ISSUE No. c). Who will bear costs of the suit*** 1. It is now well established that the issue of costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of a legal action or proceedings in any litigation. The proviso of the provision of Section 27 (1) of the [Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3), Cap. 21 provides as follows:- **“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers; Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct.”** 1. By the event means the result and/or outcome of the legal action. In the instant case, it is evident that the Plaintiff has managed to prove and/or establish the case. Further, since the Respondent did not enter appearance or defend this claim, there are no orders as to costs. 2. **Conclusion and Final Orders** 3. Before concluding on the matter, it is noted that the Applicant indicated in the pleadings that part of the property had been sold to other parties which the court presumes are in occupation of the same. For clarity and in the interest of justice, the Applicant will only acquire the exact acreage which he is in occupation of and not the rest of the parcels which as indicated were sold by the Respondent to other parties. The occupants of the rest of the parcels will thus not be evicted and neither will their occupation be interrupted by virtue of registration in the name of the Applicant. 4. I find that the Applicant has proved his case on a balance of probabilities. The main issue for determination is answered in the positive. I therefore make the following orders: - 1. **THAT Judgement be and is hereby entered in favour of the Applicant herein and against the Respondent herein.** 2. **THAT the Respondent’s interest in all that parcel of land situated in Kwale County and known as KWALE/DIANI SS/251 measuring approximately 1.9 Hectares has been extinguished.** 3. **THAT the County Land surveyor to visit the suit property and establish the exact acreage in occupation of the Applicant and which will then be excised for his registration and use.** 4. **THAT the Registrar of titles Kwale County do delete entry in favour of the Respondent in the title of land described in paragraph [a] above or register appropriate discharge in respect of the Applicant for the acreage he occupies and is in use of thereof without gazzettement.** 5. **THAT the Applicant be registered as the proprietor of the area he currently occupies in that parcel of land situated in Kwale County and known as KWALE/DIANI SS/251 measuring approximately 1.9 Hectares which said piece of land comprised in a certificate of title registered in the land titles registry at Kwale in place of JANET FLORA MUNA by reason of the fact that the Applicant has become entitled to the portion he is in current use and occupation of by adverse possession.** 6. **THAT the registrar of titles Kwale County do issue certificate of title for the exact acreage the Applicant is in use and occupation of in the parcel land situated in Kwale County and known as KWALE/DIANI SS/251 measuring approximately 1.9 Hectares which said piece of land comprised in a certificate of title registered in the land titles registry at Kwale in the name of JANET FLORA MUNA.** 7. **The occupation and use of the suit property KWALE/DIANI SS/251 by individuals who purchased part of the suit property from the Respondent earlier is not to be interfered with.** 8. **THAT the costs of the suit to be awarded to the Plaintiff.** **IT IS ORDERED ACCORDINGLY.** **JUDGEMENT DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………18TH ………. DAY OF ………...JUNE………….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE** **Judgement delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. M/s Ndungu Advocate holding brief for M/s. Omolo Advocate for the Plaintiffs. 3. No appearance for the Defendants.