Gunga v Shah (Environment and Land Case Civil Suit 40 of 2022) [2026] KEELC 4671 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CIVIL SUIT NO. 40 OF 2022 (OS)** **SANTA KATANA GUNGA ……………………………… APPLICANT** **VERSUS** **DHIRAJLAL LILADHAR RAISHI SHAH ……….. RESPONDENT** **JUDGMENT** **Background** 1. By an Originating Summons dated 24th March 2022, Santa Katana Gunga (the Applicant) prays for orders that: 2. **Spent;** 3. **The Respondent’s interest in all that piece of land known as** **Plot No. 185/III/MN containing by measurement zero decimal one two (0.12) acres or thereabouts freehold tenure registered in the Land Titles Registry at Mombasa has been extinguished;** 4. **The Registrar of Titles, Mombasa do delete the name Dhirajlal Liladhar Raishi Shah in the Title of the land described in paragraph 2 above;** 5. **The Applicant be registered as the proprietor of all the parcel of land known as Plot No. 185/III/MN containing by measurement zero decimal one two (0.12) acres or thereabouts, in place of the name** **Dhirajlal Liladhar Raishi Shah by reason of the fact that the Applicant has become entitled to the said land by adverse possession;** 6. **That the Registrar of Titles Mombasa do issue Certificate of Title for all the parcel of land known as Plot No. 185/III/MN containing by measurement zero decimal one two (0.12) acres or thereabouts, in the name of Santa Katana Gunga, the applicant herein;** 7. **The orders referred to in paragraph 2, 3, 4 and 5 above be registered against all that parcel of land known as Mombasa as Plot No. 185/III/MN containing by measurement zero decimal one two (0.12) acres or thereabouts in terms of Section 38 (2) of The Limitation Actions Act Chapter 22, Laws of Kenya; and** 8. **The costs of this Originating Summons be provided for.** 9. The Origination Summons is supported by and Affidavit sworn by the Applicant and is premised on the grounds; 10. **That the Applicant has been in uninterrupted exclusive physical possession of the suit property for a continuous period in excess of 30 years;** 11. **The Respondent has shown no interests in the property neither has he given any notice for vacant possession to the Applicant over the suit land;** 12. **That any such interest, notice or attempt, if any, by the Respondents to evict the applicant has been way after the expiry of the 12 years’ limitation period;** 13. **That the applicant has developed the land;** 14. **That the Respondent’s rights and/or interests on the suit land vis a viz those of the Applicant have been extinguished; and** 15. **That it is fair and just that the Applicant be registered as the owner of the suit land so that he may stop living in fear that he and his family may wake up to an eviction one day.** 16. Dhirajlal Liladhar Raishi Shah (the Respondent) was served by way of substitute service via the Daily Nation Newspaper of 7th October 2022. On 22nd November 2022, the Respondent entered appearance and informed the Court that the property was transferred to a third party over fifty (50) years ago and that the changes were never effected. He did not file any pleading in relation to the summons. 17. At the trial herein, the Applicant called two witnesses in support of her case. The Respondent did not call any witness at the trial. **Analysis and Determination** 1. By the instant suit, the Applicant prays for a determination that she has acquired all that parcel of land knowns as Plot No. 185/III/MN by virtue of adverse possession having occupied the same for a period exceeding thirty (30) years. 2. Section 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya provides as follows: **“(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. As was stated by the Court of Appeal in ***Mombasa Teachers Co-operative Saving and Credit Society Limited Vs Robert Muhambi Katana & 15 others (2018) eKLR***: **“….it is settled that a person seeking to acquire title to land by way of adverse possession must prove non-permissive or nonconsensual, actual open, notorious, exclusive and adverse use /occupation of the land in question for an uninterrupted period of 12 years as espoused in the L*atin maxim, nec vi nec clam nec precario*”.** 1. Thus for an Applicant to succeed in a claim of adverse possession, he or she has the burden to prove open and notorious physical occupation and possession of the land which is continuous and uninterrupted for a period of 12 years accompanied with an intention to dispossess the registered owner. 2. In the matter herein, it was the Applicant’s case that she has lived on the suit land peacefully for a period exceeding thirty (30) years. She told the Court that she has been living on the suit land since the year 1985 when she got married and that she had raised her children therein together with her husband who has since passed away. The Applicant told the Court that they had constructed a permanent house on a portion of the land and that they use the rest for cultivation. In support of her case, the Applicant called her neighbour Mkala Mwachikombera Chilute (PW2) who testified that the Applicant has been his neighbour for the past 20 years and that she lives on the land with her children. 3. From a perusal of the certificate of search dated 25th February 2022, the Respondent is the registered proprietor of the suit property. Upon being served with the summons herein, the Respondent filed a Memorandum of Appearance dated 12th October 2022 through Messrs Muthee Kihiko Soni & Associates Advocates. The Respondent did not however file any pleadings. The said Advocates informed the Court at the trial that their client had informed them that he had sold the suit property fifty (50) years ago and that he no longer had any interest thereon. 4. It was telling that even as the Respondent purported to have sold the property, the same is still registered in his name and he was therefore the rightful person against whom the claim for adverse possession could be made. As it were, the Applicant’s case was not controverted by any other testimony and I did not find any reason to doubt her testimony. 5. In the premises, I am satisfied that the Applicant has proved her case to the required standards and I hereby enter judgment for the applicant in the following terms: 6. **Santa Katana Gunga, the Applicant has acquired title by adverse possession over the parcel of land known as Plot No 185/III/MN containing by measurement zero decimal one two (0.12) acres.** 7. **The Registrar of Titles, Mombasa is hereby directed to forthwith cancel the name of the Respondent as the proprietor of the parcel of land known as Plot No. 185/III/MN.** 8. **An order is hereby issued directing the Registrar of Titles Mombasa to forthwith register the Applicant as the proprietor of all that parcel of land known as Plot No 185/III/MN.** 9. **There shall be no order as to costs.** **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 Applicant c) Ms. Simiyu holding brief for Gathu Advocate for the Respondent