Jackson Muhanji Amalemba (hereinafter referred to as the plaintiff) filed this suit for a declaration that he has become entitled by way of adverse possession to the suit property that Abdillahi Bin Ahmed (hereinafter referred to as the defendant) has lost his right to the suit property which has been extinguished in favour of the plaintiff. He prays that the suit property be registered in the plaintiff’s name. The defendant though duly served by way of Advertisement in the dailies on the 17th of November 2025 has failed to enter appearance or file any response, and the plaintiff’s evidence remains unchallenged and uncontroverted.
The plaintiff states that he was born in the year 1961. When he was about 3 years old, in 1964, together with his late mother moved into the parcel of land known as PLOT NUMBER 2245/VI/MN (C.R 11334) ('hereinafter referred to as "the suit property"), He lived with his mother on the suit property, where the mother built a semi-permanent house (a Swahili house) up until her demise in the year 1988.
He continued with his possession and eventually got married, had his children and raised them in the suit property. That he continues to live there to date, with his children having grown up and left home. He has rented part of the Swahili house and collects rent from the same. Sometimes in 2023, he sought to put up a perimeter on the suit property and was served with a Notice from the County government of Mombasa for failing to obtain County Approvals, and they had the wall demolished. The plaintiff contends that he is in adverse possession of the suit property.
The principal legal basis for adverse possession is Sections 7 and Section 38 of the Limitation Act, which provide thus:
Section 7: "An action may not be brought by any person to recover the 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.
Section 38(1): "Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, he may apply to the High Court for an order that he be registered as the proprietor of the land in place of the registered proprietor.
For one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly/no force, no secrecy, and no license or permission of the landowner (nec vi nec clam nec precario), with the intention to have the land. Adverse possession can also be explained as possession that is: open, notorious, exçlusive, continuous (for a period of not less than 12 years) and adverse to the interests of the true owner. The Courts have also said that it is not only looking at whether the applicant has been in occupation for the statutory period but should also look at whether the registered proprietor has been dispossessed or that his right to the said title has been extinguished. The elements of adverse possession were clearly elucidated in the case of: Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR where the Court stated that;
"Adverse possession is essentially a situation where a person takes possession land and asserts rights over it and the person having title to it omits or neglects to take action o against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, o in publicity and in extent to show that possession is adverse to the title owner.
This court finds that the plaintiff is in actual possession of the suit property. The plaintiff in his Affidavit Evidence stated that he entered the suit property in 1964 with his mother and thereafter established his residence thereon. He has since confected a o homestead, lived on the property continuously with his family and even raised his children there. He has also rented out units within the building and earns an income from them.
The plaintiff has provided photos of the developments that have been carried out on the suit property, receipts issue to the tenants and even an agreement with an agent in whom the plaintiff had contracted to deal with the tenant.
The law on Adverse Possession is now well settled and the essential requirements that one has to meet in order to succeed in an application for Adverse Possession have been discussed by the courts.
In Wambugu —v- Niupuna (1983) KLR 173, the Court of Appeal held that Adverse Possession contemplates two concepts: Possession and discontinuance of Possession. It further held that the proper way of assessing proof of Adverse Possession would 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 or she has been in Possession for the requisite number of years. The applicant herein has satisfied both possession and discontinuance of possession of the Respondent from the suit property,
This court further finds that the possession has been open and notorious. I do find that the occupation has never been concealed. There is Affidavit Evidence by the Chief confirming that the local administration acknowledges the occupation of the property by the Applicant and his family. There is also evidence from the neighbours who confirm that even when the Plaintiffs mother passed on. The mass was conducted at the premises and was largely attended by the neighbours. The same neighbours also confirm that they attended school at Çhangamwe primary school together with the
Further, sometime in 2023, officers from the Mombasa County Government visited the land and issued a development enforcement notice when the plaintiff sought to put up a perimeter wall. The enforcement notice was issued in the name of Fredrick Mazembe, who is the firstborn son of the plaintiff herein. This demonstrates that the plaintiff’s occupation is visible and known to public authorities. The plaintiff has further demonstrated that the possession has been continuous and uninterrupted. The plaintiff's evidence demonstrates uninterrupted occupation from 1964 to date, a period exceeding 60 years. He initially lived on the land with his mother, who constructed the original home and lived there up until her demise in 1988.This confirms long-standing occupation and upon the mother's demise, the plaintiff continued in possession of the property without interruption
The Applicant's five children, including Fredrick Mazembe Akello, were born and raised on the land. There is no evidence of eviction, abandonment, or interruption. The Learned Judges of the Court of Appeal had this to say in the case of Kihamba v Mbaisi 12015] KECA 853 (KLR);
"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 Latinphraseolov, nec vi, nec clam, necprecaria The additional requirement is that ofanimus possidendi, or intention to have the land".
The plaintiff has demonstrated that the possession has been exclusive. The evidence is clear that he plaintiff and his family are the only persons who have occupied and utilized the land. The registered owner has never visited, occupied, used, or developed the land during the pendency of the plaintiff's possession and stay on the suit property. The neighbour's affidavit testimony confirms that the land is known in the area as belonging to the plaintiff’s family and the same has never been interrupted by any person whatsoever.
The court finds that the possession has been without consent and non- permissive. The plaintiff has demonstrated that his possession has been adverse to the title of the registered owner. The plaintiff in his evidence stated that he only became aware of the registered owner of the property when a search was conducted in 2023. Otherwise, he has known that his mother owned the property given that they moved in when he was 3years old and has grown up there all through his adulthood being more than 60years old with no interference whatsoever.
The plaintiff has shown an intention to possess the land as his own. He has built a house that his children consider as their family home and has for a while now rented out part of the property. The evidence on record shows that the registered owner has never taken possession. The plaintiff has been in exclusive occupation for over six decades and therefore the owner's c; title was extinguished by operation of law after the lapse of twelve years. This court finds that the plaintiff has proved his case on a balance of probabilities, that he has been in actual, open, continuous, exclusive permissive and uninterrupted possession of the suit property since 1964, and that his occupation has been without consent and adverse to the title of the registered owner. By virtue of that therefore, the court finds that the defendant’s title has been extinguished by operation of law.
The plaintiff has therefore satisfied all the legal requirements for adverse possession and that this Honourable Court is pleased to declare that he has acquired title to the suit property by way of adverse possession and do issue an Order that the suit property be registered in the name of the plaintiff.
The plaintiff states that he was born in the year 1961. When he was about 3 years old, in 1964, together with his late mother moved into the parcel of land known as PLOT NUMBER 2245/VI/MN (C.R 11334) ('hereinafter referred to as "the suit property"), He lived with his mother on the suit property, where the mother built a semi-permanent house (a Swahili house) up until her demise in the year 1988.
He continued with his possession and eventually got married, had his children and raised them in the suit property. That he continues to live there to date, with his children having grown up and left home. He has rented part of the Swahili house and collects rent from the same. Sometimes in 2023, he sought to put up a perimeter on the suit property and was served with a Notice from the County government of Mombasa for failing to obtain County Approvals, and they had the wall demolished. The plaintiff contends that he is in adverse possession of the suit property.
The principal legal basis for adverse possession is Sections 7 and Section 38 of the Limitation Act, which provide thus:
Section 7: "An action may not be brought by any person to recover the 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.
Section 38(1): "Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, he may apply to the High Court for an order that he be registered as the proprietor of the land in place of the registered proprietor.
For one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly/no force, no secrecy, and no license or permission of the landowner (nec vi nec clam nec precario), with the intention to have the land. Adverse possession can also be explained as possession that is: open, notorious, exçlusive, continuous (for a period of not less than 12 years) and adverse to the interests of the true owner. The Courts have also said that it is not only looking at whether the applicant has been in occupation for the statutory period but should also look at whether the registered proprietor has been dispossessed or that his right to the said title has been extinguished. The elements of adverse possession were clearly elucidated in the case of: Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR where the Court stated that;
"Adverse possession is essentially a situation where a person takes possession land and asserts rights over it and the person having title to it omits or neglects to take action o against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, o in publicity and in extent to show that possession is adverse to the title owner.
This court finds that the plaintiff is in actual possession of the suit property. The plaintiff in his Affidavit Evidence stated that he entered the suit property in 1964 with his mother and thereafter established his residence thereon. He has since confected a o homestead, lived on the property continuously with his family and even raised his children there. He has also rented out units within the building and earns an income from them.
The plaintiff has provided photos of the developments that have been carried out on the suit property, receipts issue to the tenants and even an agreement with an agent in whom the plaintiff had contracted to deal with the tenant.
The law on Adverse Possession is now well settled and the essential requirements that one has to meet in order to succeed in an application for Adverse Possession have been discussed by the courts.
In Wambugu —v- Niupuna (1983) KLR 173, the Court of Appeal held that Adverse Possession contemplates two concepts: Possession and discontinuance of Possession. It further held that the proper way of assessing proof of Adverse Possession would 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 or she has been in Possession for the requisite number of years. The applicant herein has satisfied both possession and discontinuance of possession of the Respondent from the suit property,
This court further finds that the possession has been open and notorious. I do find that the occupation has never been concealed. There is Affidavit Evidence by the Chief confirming that the local administration acknowledges the occupation of the property by the Applicant and his family. There is also evidence from the neighbours who confirm that even when the Plaintiffs mother passed on. The mass was conducted at the premises and was largely attended by the neighbours. The same neighbours also confirm that they attended school at Çhangamwe primary school together with the
Further, sometime in 2023, officers from the Mombasa County Government visited the land and issued a development enforcement notice when the plaintiff sought to put up a perimeter wall. The enforcement notice was issued in the name of Fredrick Mazembe, who is the firstborn son of the plaintiff herein. This demonstrates that the plaintiff’s occupation is visible and known to public authorities. The plaintiff has further demonstrated that the possession has been continuous and uninterrupted. The plaintiff's evidence demonstrates uninterrupted occupation from 1964 to date, a period exceeding 60 years. He initially lived on the land with his mother, who constructed the original home and lived there up until her demise in 1988.This confirms long-standing occupation and upon the mother's demise, the plaintiff continued in possession of the property without interruption
The Applicant's five children, including Fredrick Mazembe Akello, were born and raised on the land. There is no evidence of eviction, abandonment, or interruption. The Learned Judges of the Court of Appeal had this to say in the case of Kihamba v Mbaisi 12015] KECA 853 (KLR);
"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 Latinphraseolov, nec vi, nec clam, necprecaria The additional requirement is that ofanimus possidendi, or intention to have the land".
The plaintiff has demonstrated that the possession has been exclusive. The evidence is clear that he plaintiff and his family are the only persons who have occupied and utilized the land. The registered owner has never visited, occupied, used, or developed the land during the pendency of the plaintiff's possession and stay on the suit property. The neighbour's affidavit testimony confirms that the land is known in the area as belonging to the plaintiff’s family and the same has never been interrupted by any person whatsoever.
The court finds that the possession has been without consent and non- permissive. The plaintiff has demonstrated that his possession has been adverse to the title of the registered owner. The plaintiff in his evidence stated that he only became aware of the registered owner of the property when a search was conducted in 2023. Otherwise, he has known that his mother owned the property given that they moved in when he was 3years old and has grown up there all through his adulthood being more than 60years old with no interference whatsoever.
The plaintiff has shown an intention to possess the land as his own. He has built a house that his children consider as their family home and has for a while now rented out part of the property. The evidence on record shows that the registered owner has never taken possession. The plaintiff has been in exclusive occupation for over six decades and therefore the owner's c; title was extinguished by operation of law after the lapse of twelve years. This court finds that the plaintiff has proved his case on a balance of probabilities, that he has been in actual, open, continuous, exclusive permissive and uninterrupted possession of the suit property since 1964, and that his occupation has been without consent and adverse to the title of the registered owner. By virtue of that therefore, the court finds that the defendant’s title has been extinguished by operation of law.
The plaintiff has therefore satisfied all the legal requirements for adverse possession and that this Honourable Court is pleased to declare that he has acquired title to the suit property by way of adverse possession and do issue an Order that the suit property be registered in the name of the plaintiff.