'1. The applicant began this matter through an Originating Summons (OS) dated April 22, 2025, supported by an affidavit sworn by the applicant, Christian Muchiri Mburu, on the same date.
2. Service of summons to enter an appearance and defend was effected on the respondent Abubakar Hussin Sadik, but he was unresponsive; therefore, the matter proceeded via formal proof proceedings.
3. The court directed that the issues raised in the OS be examined through written submissions. I acknowledge, with sincere appreciation, the submissions from learned counsel for the applicant, Mr. Oduol, which significantly assisted the court in addressing the issues raised in the OS.
4. The court''s decision hinges on three key issues: whether the applicant’s possession was open, exclusive, and continuous for over twelve years; whether the applicant demonstrated the intention to possess the land as owner (animus possidendi); and whether the respondent’s title has been extinguished by adverse possession under Sections 7 and 38 of Cap 22.
5. Mr. Oduol commences his submissions with notable skill. In the tranquil, sun-drenched expanse of Lamu County, where the terrain bears tales older than history itself, a narrative of diligence and confidence unfolds—one not inscribed with ink, but carved into the very earth of the land designated as Lamu/Lake Kenyatta II/363. For over twenty-two seasons, Christian Muchiri Mburu has diligently cultivated this land, planting not only crops but also aspirations, establishing a life, a family, and a future within the crimson Kenyan soil. This represents more than a mere assertion; it embodies a binding commitment between an individual and the land he has esteemed, safeguarded, and devoted his labor to, consistently over the years.
6. Mr Oduol proceeds further to state that much like a majestic baobab that endures through generations, his presence has remained silent yet unequivocal; open, persistent, and uncontested. The rhythm of his plow, the walls of his dwelling, and the shade of his trees each convey a truth that documentation cannot silence nor time diminish. This case extends beyond mere possession; it embodies legacy. It underscores the principle that law often acknowledges what the land has inherently known: that sometimes, ownership is not merely granted through formal documentation, but earned through patience; not solely by deed, but through unwavering devotion.
7. On December 9, 2003, the applicant, Christian Muchiri Mburu, entered into a sale agreement with the respondent, Abubakar Hussein Sadik, for the purchase of land parcel Lamu/Lake Kenyatta II/363. The agreed purchase price was Kshs 40,000, which the applicant paid in full on the same day. Upon payment, the applicant took immediate possession of the land, began cultivating it, and subsequently established a permanent residence there, all with the respondent''s initial consent pursuant to the sale.
8. Despite receiving full payment, the respondent failed to transfer the title to the applicant. Instead, in a significant breach of their agreement, the respondent registered the land in his own name on August 28, 2006. This act did not disturb the applicant’s possession; he continued to occupy, develop, and farm the land openly, exclusively, and without interruption, without any further permission from the respondent, for over 22 years.
9. Mr. Oduol contends that the applicant’s utilization of the land has been ongoing, observable, and exclusive, encompassing activities such as farming, residing on the property, and constructing substantial permanent structures, including the erection of a house. His possession, which was initially lawful under the sale agreement, became adverse possession following the respondent''s breach of contract by registering the title in their name after full payment. The applicant now seeks a legal declaration of ownership by adverse possession, having satisfied the 12-year statutory period.
Analysis and determination
Whether the Applicant’s possession of the suit land was open, exclusive, and continuous for more than twelve (12) years.
10. As submitted by Mr. Oduol and acknowledged by the cited judicial authorities, with which I agree, the elements of adverse possession were recently restated by the Court of Appeal in the case of Karitu v Mwihike Farmers Company Limited & 3 others (Civil Appeal E397 of 2024) [2025] KECA 1127 (KLR) (20 June 2025) (Judgment), where the Court held that:
“30. A party claiming adverse possession must prove that they have occupied the land openly, without license or permission of the registered owner, with the intention to possess it, and that such occupation has resulted in the dispossession of the owner for the statutory period. It is not sufficient merely to show possession for twelve years.”
11. The Court of Appeal further held in the case of Bakari Sheban & 39 others v Said Bin Rashid Khamis [2017] KECA 718 (KLR):
“Like any other civil claim, the burden was on the appellants to prove on a preponderance of evidence that their occupation of the suit property was adverse, in the sense that occupation was hostile, open, actual, uninterrupted, notorious, exclusive and continuous for a period of 12 years.” See Kweyu v Omutut (1990) KLR 709.
12. In Bakari Sheban & 39 others v Said Bin Rashid Khamis [2017] KECA 718 (KLR), the Court of Appeal also elucidated that:
“The adverse character of the possession must be proved as a fact; it cannot be assumed as a matter of law from mere exclusive possession, however long continued. And the proof must be clear that the party held under a claim of right and with intent to hold adversely…the intention of the dispossessor is to appropriate and use the land as his own, to the exclusion of all others, irrespective of any semblance or shadow of actual title or right.”
13. From the record, the Applicant has unequivocally established factual possession of the subject land. Factual possession, also known as corpus possessionis, necessitates physical control and use of the land in a manner consistent with that of an owner. The applicant entered the land in 2003 and initiated substantial, visible activities, including cultivation and farming. Significantly, he constructed a permanent dwelling, an act that distinctly evidences physical dominion and control. Collectively, these actions demonstrate that he treated the property as his own, excluding all other parties, including the registered owner.
14. Furthermore, the applicant’s possession was accompanied by the necessary intention to possess, known as animus possidendi. This intention is not a secret mental state but is inferred from a claimant’s open and unequivocal conduct. By building a home and investing in long-term agricultural development, he demonstrated a clear intent to exercise ownership rights. His actions were inconsistent with the rights of the true owner and were performed for his own benefit. This objective clearly intends to exclude others, including the respondent. In Samuel Kihambo v Mary Mbaisi [2015] KECA 853 (KLR), the Court of Appeal held:
“Strictly, 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 force, without secrecy, and without license or 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 phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land.”
15. The applicant’s entry and continued possession were nec vi, indicating the absence of force. His initial occupation was the result of a voluntary sale agreement, in which he paid the entire purchase price. His subsequent long-term residence has been conducted peacefully, with no allegations of violence or forcible eviction. The respondent has never accused him of any forcible dispossession or ouster. Consequently, the element of possession without force is conclusively established.
16. The applicant’s possession was also nec clam, indicating that it was not concealed. His activities, including residing in a permanent residence and engaging in farming, are inherently visible and widely acknowledged. These actions were observable to the public and explicitly recognized by the local authorities, as evidenced by the Assistant Chief''s letter. Such overt conduct provided the respondent with constructive notice of the adverse claim. Possession cannot be deemed secretive when permanent structures are present, and the community possesses knowledge thereof.
17. Critically, the applicant’s possession was nec, precario, meaning without the respondent’s permission. While his initial entry was pursuant to a sale, the respondent’s failure to transfer title and his subsequent registration of the land in his own name changed the applicant’s status. The license granted under the sale agreement was effectively revoked by the respondent’s actions, rendering continued possession adverse. The respondent’s subsequent decades of inaction confirm the absence of any ongoing consent. Thus, the possession evolved from permissive to adverse.
18. The continuous nature of this possession is well established and surpasses the statutory period. The applicant has maintained open, exclusive, and uninterrupted possession since 2003. This period of over 22 years significantly exceeds the 12-year requirement set by the Limitation of Actions Act. There is no evidence of any break or interruption in this possession by the respondent or any other party. The continuity of possession is both proven and unchallenged.
19. Finally, the respondent had precise knowledge of the applicant’s adverse possession. As the original seller, the respondent was aware of the applicant’s entry onto and occupation of the land. The open and obvious nature of the applicant’s actions showed that the respondent should have known about the ongoing possession. The respondent’s complete failure to take any steps to assert ownership for nearly twenty years confirms his acceptance.
20. The above confirms and demonstrates the applicant''s necessary intention to own the land as its valid owner (animus possidendi).
Has the Respondent’s claim to the suit land been extinguished through the Applicant’s adverse possession under Sections 7 and 38 of the Limitation of Actions Act, Cap 22?
21. The applicant’s possession of the suit land has been continuous and unbroken for a period far exceeding the statutory requirement. Continuity is a key element of adverse possession, requiring the claimant’s physical control to remain unbroken for the entire twelve-year period. The applicant took possession of the land in December 2003 and has maintained a continuous chain of possession up to the present day. This span of over twenty-two years exceeds the legal requirement by more than double. Such a lengthy period provides a strong basis for his claim.
22. This continuous possession is evidenced by the applicant’s permanent and settled use of the property. He did not merely visit the land intermittently but established a family home and working farm upon it. Activities such as residing in a permanent dwelling and cultivating land are inherently continuous, requiring daily, seasonal, and annual engagement. These acts demonstrate a consistent and ongoing physical presence that defines uninterrupted possession. The very nature of his use precludes any suggestion of temporary or sporadic occupation.
23. The evidence unequivocally affirms that there has been no disruption in his possession. The letter from the Area Assistant Chief explicitly states that the applicant has been “living in Lake Kenyatta II Plot, 363 since 2003 to date.” This objective, third-party evidence from a local authority figure robustly supports the Applicant''s sworn statement. No contrary evidence exists indicating that the applicant ever relinquished or was dispossessed of the property. The record of evidence aligns entirely with continuous control.
24. Furthermore, the respondent took no action whatsoever to disrupt the applicant’s peaceful possession during the entire statutory period. Disruption can happen through physical acts of dispossession or through legal measures initiated by the rightful owner. The respondent never tried to re-enter the land, evict the applicant, or start any legal proceedings to assert his ownership rights. This complete and prolonged acquiescence by the registered owner strongly indicates that the possession was never challenged. His inaction allowed the applicant’s continuous possession to develop into a legal right.
25. The concept of continuity does not necessitate the claimant''s physical presence on every square inch of the land at all times. The law assesses continuity based on the land''s nature and the customary use a landowner would typically make of it. For agricultural land, continuous possession is demonstrated through consistent acts of cultivation, farming, and residence, all of which the applicant has substantiated. The periodic harvesting of crops and maintenance of the residence are acts consistent with a continuous pattern of ownership. The applicant’s utilization aligns perfectly with the expected continuity for such a property.
26. The statutory period for adverse possession commenced on December 9, 2003, when the applicant remitted the full purchase price to the respondent and assumed possession of the subject land. This date is significant as it signifies the moment when the applicant’s legal status transitioned from that of a potential buyer to a possessory holder with a complete and vested equitable interest. By fulfilling his final obligation under the sale agreement, the applicant discharged his duty, and the Respondent’s subsequent failure to transfer the title constituted a fundamental breach. This breach nullified the deal, thereby terminating any previously granted permissive license to the applicant and transforming his possession into an immediate, hostile, and adverse claim against the respondent’s beneficial interest. Consequently, the twelve-year period mandated by the Limitation of Actions Act commenced on this precise date.
27. The High Court in the case of Gabriel Mbui v Mukindia Maranya [1993] KEHC 161 (KLR) held that:
“Where adverse possession arose out of a sale of(sic) agreement under which the payment of the purchase price by the adverse possessor was by installments, and the agreement fails, the period of limitation affords an action for adverse possession only after the last and final payment has been made to complete the agreed purchase price. The period of limitation starts to run on the date of the payment of the last installment of the purchase price (Todd, J, in Wanyoike v Kahiri [1979] Kenya LR 236 at 239; also see among others, Simpson J (as he then was), in Hosea v Njiru and others [1974] EA 526 at 529, 530).”
28. Similarly, in Peter Mbiri Michuki v Samuel Mugo Michuki [2014] KECA 342 (KLR), the Court of Appeal stated the following
“32. Our reading of the record shows that the plaintiff entered the suit property pursuant to a sale agreement in 1964 as a bona fide purchaser for value. The entry in 1964 was with permission of the appellant qua vendor. In the case of Public Trustee v Wanduru, (1984) KLR 314 at 319, Madan, JA stated that adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession of the property because from this date, the true owner is dispossessed of possession. A purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run.”
29. I agree with Mr. Oduol’s submissions that the applicant’s payment of the full purchase price is a material fact conclusively proven by the evidence before this Court. The Sale Agreement annexed as Exhibit “CMM-1” explicitly states the purchase price as Kshs. 40,000 and contains the unequivocal notation, “Nimepokea malipo yote kwa jumla” (“I have received all payments in full”). This contemporaneous written document, signed by both parties and witnessed, provides incontrovertible proof that the consideration was paid in full on the date of execution.
30. The respondent’s signature on this document acknowledging receipt precludes him from subsequently denying this fact. Accordingly, the Applicant’s assertion that he “paid the purchase price in full and took possession” on December 9, 2003, is unequivocally substantiated by the primary evidence.
31. The Court of Appeal determined in the case of Karitu v Mwihike Farmers Company Limited & 3 others (Civil Appeal E397 of 2024) [2025] KECA 1127 (KLR) (20 June 2025) (Judgment) that:
“40. The above decisions clearly establish that an applicant must pay the entire purchase price before the statutory period for adverse possession begins to run. Where the purchase price is paid in installments, the period commences only after the final installment has been paid.”
32. This full payment and taking possession confirmed the applicant’s apparent intent to own the land. His goal was not just to use the land with the respondent’s permission but to own it — a right he had already bought and paid for in full. His later actions of developing, farming, and building a permanent home clearly showed this intention to exercise full ownership rights. From the moment he paid, he held the land not as a licensee or a tenant at will, but as the beneficial owner awaiting formal title. His possession was therefore averse to the respondent’s legal interest from the very beginning.
33. The respondent’s action of registering in his own name on August 28, 2006, did not restart or pause the statutory clock that commenced in 2003. This registration was a unilateral act, executed in apparent disregard of the existing Sale Agreement and the applicant’s equitable ownership. It was a wrongful act that could not, in law, prejudice the applicant’s already acquired possessory rights. The applicant’s continuous possession after this date did not constitute a new period but was a continuation of the same adverse possession that originated with payment and entry. The registration merely confirmed the respondent''s hostile possession by evidencing his holding of legal title.
34. Although the registration was interrupted over time, it was subsequently reinstated on August 28, 2006, and continues to comply with the twelve-year limitation period. The Environment and Land Court, in the case of Otieno v Ochola & others (sued as the joint administrators of the estate of John Adega Otieno) (Environment and Land Miscellaneous Application No. 3 of 2021) [2023] KEELC 221 (KLR) (26 January 2023) (Judgment), held that:
“27. Section 7 of the Limitation of Actions Act intimates a proprietor cannot, after 12 years, recover land which had been acquired by adverse possession. section 13(1) of the said Act states an adverse possessor must be in possession of land in order for a right of adverse possession to arise. Section 13(1) of the same ACT states if adverse possession is interrupted, the period starts running afresh when the adverse possessor again takes possession of the land.”
35. Consequently, the twelve years required for adverse possession was conclusively fulfilled on December 9, 2015, a full decade prior to the initiation of this litigation. The applicant’s continuous possession for over twenty-two years is indisputable. The law does not require a claimant to be registered to initiate an adverse possession claim; it only requires actual possession accompanied by the requisite intent. The applicant fulfilled these criteria in 2003 through payment and entry.
36. Therefore, I conclude that the applicant’s claim of title through adverse possession was finalized in 2015, making his legitimate claim to be registered as the owner both valid and considerably overdue. In the case of Symon Gatutu Kimamo & 587 Others v East African Portland Cement Co. Ltd [2011] KEHC 4274 (KLR), the High Court stated:
“16. Adverse Possession is a question of fact. Possession is hostile if it is open, without right, without force or fraud, and exclusive.”
37. Mr. Oduol, as characterized in his opening remarks and with notable finesse, concludes his submissions thoughtfully: To summarize, over a consistent and unchanging cycle of seasons spanning twenty years, the land itself has witnessed a truth more profound than any recorded entry. Christian Muchiri Mburu did not just occupy this earth; he became an integral part of it. Through actions that cultivated and built, and with a steadfast heart, he intertwined his life with the very soil of Lamu/Lake Kenyatta II/363. His possession was as open as the sky, as endless as the horizon, and as peaceful as dawn, fulfilling not only the letter but also the spirit of the law: that land belongs to those who honor it through their labor, love, and unwavering presence.
38. And in affirmation, this court solemnly declares the applicant the actual proprietor of the suit land, extinguishing a dormant title and breathing life into a rightful one; so that justice may not only be done, but may be seen to grow, rooted firmly in the earth the applicant made his own. The OS is allowed as prayed in its entirety with costs.
Dated, signed, and delivered electronically in Malindi on November 19, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Murimi H/B for Mr. Oduol for the Applicant
Happy: Court Assistant
'
2. Service of summons to enter an appearance and defend was effected on the respondent Abubakar Hussin Sadik, but he was unresponsive; therefore, the matter proceeded via formal proof proceedings.
3. The court directed that the issues raised in the OS be examined through written submissions. I acknowledge, with sincere appreciation, the submissions from learned counsel for the applicant, Mr. Oduol, which significantly assisted the court in addressing the issues raised in the OS.
4. The court''s decision hinges on three key issues: whether the applicant’s possession was open, exclusive, and continuous for over twelve years; whether the applicant demonstrated the intention to possess the land as owner (animus possidendi); and whether the respondent’s title has been extinguished by adverse possession under Sections 7 and 38 of Cap 22.
5. Mr. Oduol commences his submissions with notable skill. In the tranquil, sun-drenched expanse of Lamu County, where the terrain bears tales older than history itself, a narrative of diligence and confidence unfolds—one not inscribed with ink, but carved into the very earth of the land designated as Lamu/Lake Kenyatta II/363. For over twenty-two seasons, Christian Muchiri Mburu has diligently cultivated this land, planting not only crops but also aspirations, establishing a life, a family, and a future within the crimson Kenyan soil. This represents more than a mere assertion; it embodies a binding commitment between an individual and the land he has esteemed, safeguarded, and devoted his labor to, consistently over the years.
6. Mr Oduol proceeds further to state that much like a majestic baobab that endures through generations, his presence has remained silent yet unequivocal; open, persistent, and uncontested. The rhythm of his plow, the walls of his dwelling, and the shade of his trees each convey a truth that documentation cannot silence nor time diminish. This case extends beyond mere possession; it embodies legacy. It underscores the principle that law often acknowledges what the land has inherently known: that sometimes, ownership is not merely granted through formal documentation, but earned through patience; not solely by deed, but through unwavering devotion.
7. On December 9, 2003, the applicant, Christian Muchiri Mburu, entered into a sale agreement with the respondent, Abubakar Hussein Sadik, for the purchase of land parcel Lamu/Lake Kenyatta II/363. The agreed purchase price was Kshs 40,000, which the applicant paid in full on the same day. Upon payment, the applicant took immediate possession of the land, began cultivating it, and subsequently established a permanent residence there, all with the respondent''s initial consent pursuant to the sale.
8. Despite receiving full payment, the respondent failed to transfer the title to the applicant. Instead, in a significant breach of their agreement, the respondent registered the land in his own name on August 28, 2006. This act did not disturb the applicant’s possession; he continued to occupy, develop, and farm the land openly, exclusively, and without interruption, without any further permission from the respondent, for over 22 years.
9. Mr. Oduol contends that the applicant’s utilization of the land has been ongoing, observable, and exclusive, encompassing activities such as farming, residing on the property, and constructing substantial permanent structures, including the erection of a house. His possession, which was initially lawful under the sale agreement, became adverse possession following the respondent''s breach of contract by registering the title in their name after full payment. The applicant now seeks a legal declaration of ownership by adverse possession, having satisfied the 12-year statutory period.
Analysis and determination
Whether the Applicant’s possession of the suit land was open, exclusive, and continuous for more than twelve (12) years.
10. As submitted by Mr. Oduol and acknowledged by the cited judicial authorities, with which I agree, the elements of adverse possession were recently restated by the Court of Appeal in the case of Karitu v Mwihike Farmers Company Limited & 3 others (Civil Appeal E397 of 2024) [2025] KECA 1127 (KLR) (20 June 2025) (Judgment), where the Court held that:
“30. A party claiming adverse possession must prove that they have occupied the land openly, without license or permission of the registered owner, with the intention to possess it, and that such occupation has resulted in the dispossession of the owner for the statutory period. It is not sufficient merely to show possession for twelve years.”
11. The Court of Appeal further held in the case of Bakari Sheban & 39 others v Said Bin Rashid Khamis [2017] KECA 718 (KLR):
“Like any other civil claim, the burden was on the appellants to prove on a preponderance of evidence that their occupation of the suit property was adverse, in the sense that occupation was hostile, open, actual, uninterrupted, notorious, exclusive and continuous for a period of 12 years.” See Kweyu v Omutut (1990) KLR 709.
12. In Bakari Sheban & 39 others v Said Bin Rashid Khamis [2017] KECA 718 (KLR), the Court of Appeal also elucidated that:
“The adverse character of the possession must be proved as a fact; it cannot be assumed as a matter of law from mere exclusive possession, however long continued. And the proof must be clear that the party held under a claim of right and with intent to hold adversely…the intention of the dispossessor is to appropriate and use the land as his own, to the exclusion of all others, irrespective of any semblance or shadow of actual title or right.”
13. From the record, the Applicant has unequivocally established factual possession of the subject land. Factual possession, also known as corpus possessionis, necessitates physical control and use of the land in a manner consistent with that of an owner. The applicant entered the land in 2003 and initiated substantial, visible activities, including cultivation and farming. Significantly, he constructed a permanent dwelling, an act that distinctly evidences physical dominion and control. Collectively, these actions demonstrate that he treated the property as his own, excluding all other parties, including the registered owner.
14. Furthermore, the applicant’s possession was accompanied by the necessary intention to possess, known as animus possidendi. This intention is not a secret mental state but is inferred from a claimant’s open and unequivocal conduct. By building a home and investing in long-term agricultural development, he demonstrated a clear intent to exercise ownership rights. His actions were inconsistent with the rights of the true owner and were performed for his own benefit. This objective clearly intends to exclude others, including the respondent. In Samuel Kihambo v Mary Mbaisi [2015] KECA 853 (KLR), the Court of Appeal held:
“Strictly, 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 force, without secrecy, and without license or 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 phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land.”
15. The applicant’s entry and continued possession were nec vi, indicating the absence of force. His initial occupation was the result of a voluntary sale agreement, in which he paid the entire purchase price. His subsequent long-term residence has been conducted peacefully, with no allegations of violence or forcible eviction. The respondent has never accused him of any forcible dispossession or ouster. Consequently, the element of possession without force is conclusively established.
16. The applicant’s possession was also nec clam, indicating that it was not concealed. His activities, including residing in a permanent residence and engaging in farming, are inherently visible and widely acknowledged. These actions were observable to the public and explicitly recognized by the local authorities, as evidenced by the Assistant Chief''s letter. Such overt conduct provided the respondent with constructive notice of the adverse claim. Possession cannot be deemed secretive when permanent structures are present, and the community possesses knowledge thereof.
17. Critically, the applicant’s possession was nec, precario, meaning without the respondent’s permission. While his initial entry was pursuant to a sale, the respondent’s failure to transfer title and his subsequent registration of the land in his own name changed the applicant’s status. The license granted under the sale agreement was effectively revoked by the respondent’s actions, rendering continued possession adverse. The respondent’s subsequent decades of inaction confirm the absence of any ongoing consent. Thus, the possession evolved from permissive to adverse.
18. The continuous nature of this possession is well established and surpasses the statutory period. The applicant has maintained open, exclusive, and uninterrupted possession since 2003. This period of over 22 years significantly exceeds the 12-year requirement set by the Limitation of Actions Act. There is no evidence of any break or interruption in this possession by the respondent or any other party. The continuity of possession is both proven and unchallenged.
19. Finally, the respondent had precise knowledge of the applicant’s adverse possession. As the original seller, the respondent was aware of the applicant’s entry onto and occupation of the land. The open and obvious nature of the applicant’s actions showed that the respondent should have known about the ongoing possession. The respondent’s complete failure to take any steps to assert ownership for nearly twenty years confirms his acceptance.
20. The above confirms and demonstrates the applicant''s necessary intention to own the land as its valid owner (animus possidendi).
Has the Respondent’s claim to the suit land been extinguished through the Applicant’s adverse possession under Sections 7 and 38 of the Limitation of Actions Act, Cap 22?
21. The applicant’s possession of the suit land has been continuous and unbroken for a period far exceeding the statutory requirement. Continuity is a key element of adverse possession, requiring the claimant’s physical control to remain unbroken for the entire twelve-year period. The applicant took possession of the land in December 2003 and has maintained a continuous chain of possession up to the present day. This span of over twenty-two years exceeds the legal requirement by more than double. Such a lengthy period provides a strong basis for his claim.
22. This continuous possession is evidenced by the applicant’s permanent and settled use of the property. He did not merely visit the land intermittently but established a family home and working farm upon it. Activities such as residing in a permanent dwelling and cultivating land are inherently continuous, requiring daily, seasonal, and annual engagement. These acts demonstrate a consistent and ongoing physical presence that defines uninterrupted possession. The very nature of his use precludes any suggestion of temporary or sporadic occupation.
23. The evidence unequivocally affirms that there has been no disruption in his possession. The letter from the Area Assistant Chief explicitly states that the applicant has been “living in Lake Kenyatta II Plot, 363 since 2003 to date.” This objective, third-party evidence from a local authority figure robustly supports the Applicant''s sworn statement. No contrary evidence exists indicating that the applicant ever relinquished or was dispossessed of the property. The record of evidence aligns entirely with continuous control.
24. Furthermore, the respondent took no action whatsoever to disrupt the applicant’s peaceful possession during the entire statutory period. Disruption can happen through physical acts of dispossession or through legal measures initiated by the rightful owner. The respondent never tried to re-enter the land, evict the applicant, or start any legal proceedings to assert his ownership rights. This complete and prolonged acquiescence by the registered owner strongly indicates that the possession was never challenged. His inaction allowed the applicant’s continuous possession to develop into a legal right.
25. The concept of continuity does not necessitate the claimant''s physical presence on every square inch of the land at all times. The law assesses continuity based on the land''s nature and the customary use a landowner would typically make of it. For agricultural land, continuous possession is demonstrated through consistent acts of cultivation, farming, and residence, all of which the applicant has substantiated. The periodic harvesting of crops and maintenance of the residence are acts consistent with a continuous pattern of ownership. The applicant’s utilization aligns perfectly with the expected continuity for such a property.
26. The statutory period for adverse possession commenced on December 9, 2003, when the applicant remitted the full purchase price to the respondent and assumed possession of the subject land. This date is significant as it signifies the moment when the applicant’s legal status transitioned from that of a potential buyer to a possessory holder with a complete and vested equitable interest. By fulfilling his final obligation under the sale agreement, the applicant discharged his duty, and the Respondent’s subsequent failure to transfer the title constituted a fundamental breach. This breach nullified the deal, thereby terminating any previously granted permissive license to the applicant and transforming his possession into an immediate, hostile, and adverse claim against the respondent’s beneficial interest. Consequently, the twelve-year period mandated by the Limitation of Actions Act commenced on this precise date.
27. The High Court in the case of Gabriel Mbui v Mukindia Maranya [1993] KEHC 161 (KLR) held that:
“Where adverse possession arose out of a sale of(sic) agreement under which the payment of the purchase price by the adverse possessor was by installments, and the agreement fails, the period of limitation affords an action for adverse possession only after the last and final payment has been made to complete the agreed purchase price. The period of limitation starts to run on the date of the payment of the last installment of the purchase price (Todd, J, in Wanyoike v Kahiri [1979] Kenya LR 236 at 239; also see among others, Simpson J (as he then was), in Hosea v Njiru and others [1974] EA 526 at 529, 530).”
28. Similarly, in Peter Mbiri Michuki v Samuel Mugo Michuki [2014] KECA 342 (KLR), the Court of Appeal stated the following
“32. Our reading of the record shows that the plaintiff entered the suit property pursuant to a sale agreement in 1964 as a bona fide purchaser for value. The entry in 1964 was with permission of the appellant qua vendor. In the case of Public Trustee v Wanduru, (1984) KLR 314 at 319, Madan, JA stated that adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession of the property because from this date, the true owner is dispossessed of possession. A purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run.”
29. I agree with Mr. Oduol’s submissions that the applicant’s payment of the full purchase price is a material fact conclusively proven by the evidence before this Court. The Sale Agreement annexed as Exhibit “CMM-1” explicitly states the purchase price as Kshs. 40,000 and contains the unequivocal notation, “Nimepokea malipo yote kwa jumla” (“I have received all payments in full”). This contemporaneous written document, signed by both parties and witnessed, provides incontrovertible proof that the consideration was paid in full on the date of execution.
30. The respondent’s signature on this document acknowledging receipt precludes him from subsequently denying this fact. Accordingly, the Applicant’s assertion that he “paid the purchase price in full and took possession” on December 9, 2003, is unequivocally substantiated by the primary evidence.
31. The Court of Appeal determined in the case of Karitu v Mwihike Farmers Company Limited & 3 others (Civil Appeal E397 of 2024) [2025] KECA 1127 (KLR) (20 June 2025) (Judgment) that:
“40. The above decisions clearly establish that an applicant must pay the entire purchase price before the statutory period for adverse possession begins to run. Where the purchase price is paid in installments, the period commences only after the final installment has been paid.”
32. This full payment and taking possession confirmed the applicant’s apparent intent to own the land. His goal was not just to use the land with the respondent’s permission but to own it — a right he had already bought and paid for in full. His later actions of developing, farming, and building a permanent home clearly showed this intention to exercise full ownership rights. From the moment he paid, he held the land not as a licensee or a tenant at will, but as the beneficial owner awaiting formal title. His possession was therefore averse to the respondent’s legal interest from the very beginning.
33. The respondent’s action of registering in his own name on August 28, 2006, did not restart or pause the statutory clock that commenced in 2003. This registration was a unilateral act, executed in apparent disregard of the existing Sale Agreement and the applicant’s equitable ownership. It was a wrongful act that could not, in law, prejudice the applicant’s already acquired possessory rights. The applicant’s continuous possession after this date did not constitute a new period but was a continuation of the same adverse possession that originated with payment and entry. The registration merely confirmed the respondent''s hostile possession by evidencing his holding of legal title.
34. Although the registration was interrupted over time, it was subsequently reinstated on August 28, 2006, and continues to comply with the twelve-year limitation period. The Environment and Land Court, in the case of Otieno v Ochola & others (sued as the joint administrators of the estate of John Adega Otieno) (Environment and Land Miscellaneous Application No. 3 of 2021) [2023] KEELC 221 (KLR) (26 January 2023) (Judgment), held that:
“27. Section 7 of the Limitation of Actions Act intimates a proprietor cannot, after 12 years, recover land which had been acquired by adverse possession. section 13(1) of the said Act states an adverse possessor must be in possession of land in order for a right of adverse possession to arise. Section 13(1) of the same ACT states if adverse possession is interrupted, the period starts running afresh when the adverse possessor again takes possession of the land.”
35. Consequently, the twelve years required for adverse possession was conclusively fulfilled on December 9, 2015, a full decade prior to the initiation of this litigation. The applicant’s continuous possession for over twenty-two years is indisputable. The law does not require a claimant to be registered to initiate an adverse possession claim; it only requires actual possession accompanied by the requisite intent. The applicant fulfilled these criteria in 2003 through payment and entry.
36. Therefore, I conclude that the applicant’s claim of title through adverse possession was finalized in 2015, making his legitimate claim to be registered as the owner both valid and considerably overdue. In the case of Symon Gatutu Kimamo & 587 Others v East African Portland Cement Co. Ltd [2011] KEHC 4274 (KLR), the High Court stated:
“16. Adverse Possession is a question of fact. Possession is hostile if it is open, without right, without force or fraud, and exclusive.”
37. Mr. Oduol, as characterized in his opening remarks and with notable finesse, concludes his submissions thoughtfully: To summarize, over a consistent and unchanging cycle of seasons spanning twenty years, the land itself has witnessed a truth more profound than any recorded entry. Christian Muchiri Mburu did not just occupy this earth; he became an integral part of it. Through actions that cultivated and built, and with a steadfast heart, he intertwined his life with the very soil of Lamu/Lake Kenyatta II/363. His possession was as open as the sky, as endless as the horizon, and as peaceful as dawn, fulfilling not only the letter but also the spirit of the law: that land belongs to those who honor it through their labor, love, and unwavering presence.
38. And in affirmation, this court solemnly declares the applicant the actual proprietor of the suit land, extinguishing a dormant title and breathing life into a rightful one; so that justice may not only be done, but may be seen to grow, rooted firmly in the earth the applicant made his own. The OS is allowed as prayed in its entirety with costs.
Dated, signed, and delivered electronically in Malindi on November 19, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Murimi H/B for Mr. Oduol for the Applicant
Happy: Court Assistant
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