'1. Originating Summons (OS) dated January 17, 2025, and filed on the same date, seeks the following orders:
a) The court considers whether the applicants have established adverse possession of Apartment F204, located on Land Reference No. 1862 Kilifi, based on the evidence of continuous occupation and legal principles outlined in the case.
b) the applicants be registered as the owners/proprietors of Apartment number F204, existing in Land Reference Number.1862 Kilifi. (herein after referred to as “the Apartment). ")
c) the respondent, her servants, agents, or anyone else, is permanently restrained from trespassing on Apartment No. F 204 on Land Reference Number 1862 Kilifi, in breach of the applicants'' rights as owners in adverse possession.
d) the respondent, her servants, agents, or anyone else, is permanently restrained from interfering with the Applicants’ quiet possession of Apartment No. F204 in Land Reference Number 1862.
e) An order be issued directing the respondent to execute all documents and take all necessary steps to effect the transfer to the applicant''s Apartment No. F204, located in Land Reference Number 1862, and, in default of such actions, the Deputy Registrar of this Honorable Court shall execute the said documents.
f) The Land Registrar, Mombasa, is hereby directed to register the applicants as owners of Apartment number F204, in OASIS Residency, existing in Land Reference Number 1862 C.R. NO 18273, and a provisional title is to be issued if need be.
g) A vesting order be issued in favor of the Applicants and the costs of this suit.
2. The OS is based on the grounds outlined on its face and the affidavit sworn on April 12, 2024, by George Mulanda Wanje, the 2nd plaintiff. The 1st plaintiff is the wife of the 2nd plaintiff and authorized her husband to plead, as evidenced by the authority dated April 26, 2024.
3. On August 18, 2025, instructions were given regarding hearing the OS via affidavits and viva voce evidence during the hearing. On May 8, 2025, the 2nd plaintiff testified, adopted his affidavit, and produced the listed and filed documents, thereby finalizing his case. The court directed the filing of written submissions. I acknowledge receipt of written submissions from learned counsel for the applicant, Ms. Chepkwony, with appreciation, which greatly contributed to resolving the issues raised in the OS.
4. Based on the evidence provided by the applicants, the respondent is the alleged registered owner of apartment No. F204, located on Land Parcel No. 1862 in Malindi, with Grant Number C.R. 18273. This ownership is established by a court decree dated June 7, 2007, in Civil Suit No. 83 of 2005 (Malindi), which transferred several other apartments, including F204, to the respondent during the execution of the court decree, as demonstrated by the search presented in court (GMW 3a and 3b).
5. The plaintiffs moved into the property before 2010 after reaching an agreement with Polcino Oasis Limited, which lost ownership of apartment F204 in 2007, along with other apartments, to the respondent, as documented in the search.
6. The applicants assert that they have continuously occupied the same apartment without interruption from the respondent for the past 14 years. During this time, they have only paid for service charges and utilities (electricity and water) since 2010; before then, they did not pay any rent.
7. The applicants claim that they have renovated the apartment as shown in the photos and that the County Government issued approvals for the extensive renovation. The respondent was aware of these approvals, was copied on them to give her consent, and has never objected. The approvals, renovation drawings, report, and photos were introduced into evidence in court.
8. The applicants'' claims that they have been in possession for more than 14 years. Continuity in publicity and extent has been maintained, and the respondent has never removed the applicants from the said apartment; instead, the respondent acknowledges their existence directly and through the Management Company, where the respondent is also a shareholder and director. In acknowledgment of the applicants'' presence, the respondent, directly or through her company or agents, has been sending messages to the applicants via WhatsApp and email, demanding payment of service charges, ever since she was registered as the owner.
9. The applicants claim that the respondent neglected her responsibilities for several apartments, and the apartment owners formed an association called Oasis Resident Association to handle the management of the flats and the payment of service charges. The applicants are also registered members of this association. The applicants presented minutes from a joint meeting held on August 7, 2023, along with updated records of condominium owners and expenses from April 12, 2024, circulated by the Oasis Residents Association.
10. The applicants claim that since 2010, they have peacefully and exclusively possessed the apartment with their family, developed it, and used the property solely. They seek registration in their names, having gained interest through adverse possession. They argue that, as a result, they are entitled to be registered as the owners of apartment No. F204, against the current owner, Pepe Teresa.
11. The applicants aver that, since taking possession over 14 years ago, the respondent has not objected or attempted eviction. The adverse possession period has fully elapsed, with continuous, open, and exclusive use. The applicants have lived on and developed the property for many years and now seek registration in their names.
12. Arising from the materials and submissions before me, the issues I frame for the court''s decision are whether the applicants have acquired proprietary rights over Apartment No. F204, located on Land Parcel No. 1862 in Malindi, with Grant Number C.R. 18273, through the operation of the doctrine of adverse possession, and whether they are subsequently entitled to the orders sought, including who should bear the costs of this litigation.
13. I concur entirely with the decisions articulated by Ms. Chepkwony regarding the definition of adverse possession, the methods of its proof, and the relevant legal framework. I need not reiterate the details herein; however, I affirm my agreement with Justice Yano''s conclusions in his reasoning, recognized by other judgments from the Superior Courts cited below concerning the doctrine of adverse possession in the case of Celina Muthoni Kithinji v. Safiya Binti Swaleh & 8 others [2018] eKLR, wherein his Lordship stated that:
“The Plaintiffs have stated that they have been in occupation of the suit property for a period ranging from 16 years to 60 years, which is a period of over 12 years. They also stated that they have been in occupation and Possession of the suit property openly and continuously and without interruption for all that period. There was no evidence availed to contradict the Plaintiffs’ averments. The Plaintiffs produced a copy of the title (exhibit 1) and certificate of official search (exhibit 2) confirming that the property is registered in the Defendants names. They also produced photographs showing extensive developments, including permanent buildings and crops. I have no doubt in my mind that such vast developments must have been undertaken over time and openly.
Considering the totality of the evidence availed in this case, and applying the legal principles as outlined above, it is clear that the Plaintiffs have proved their case on a balance of probability and have brought themselves within the limits of the doctrine of Adverse Possession.”
14. Ms. Chepkwony also emphasized the case of James Maina Kinya v Gerald Kwendaka [2018] eKLR, which I agree with, reaffirming core principles of adverse possession. To establish it, a claimant must show: actual and continuous possession—occupying the land physically without interruption for the statutory period; open and notorious possession—being clearly visible enough for a careful owner to notice; exclusive possession—possessing the land without sharing with the owner or the public; non-permissive possession—without the owner’s consent, since permission negatives adverse possession; and possession for 12 years—the legal requirement in Kenya.
15. . Also refer to the significant judicial precedents set by the Superior Courts: Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR, a key case that clarifies the essential elements of adverse possession; Mbira v Gachuhi [2002] 1 EALR 137, which established that the applicant must demonstrate non-permissive, actual, open, notorious, exclusive, and adverse use for the statutory period without interruption; Elms v Heard [2025] KEELC 3155 (KLR), a recent judgment that reinforces the legal stance on adverse possession and its components; Maina v Langat & 2 others [2025] KECA 75 (KLR), a Court of Appeal decision reflecting ongoing judicial interpretation and application of adverse possession law; and Okun v Deya & another [2025] KEELC 200 (KLR), an appeal where the court examined the application of adverse possession principles.
16. This matter underwent formal proof; the respondent did not defend it. Nonetheless, pursuant to Section 107(1) of the Evidence Act, which states that:
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
17. This refers to the legal burden of proof. However, there is also an evidential burden of proof, which is described in Sections 109 and 112 of the Evidence Act as follows: 109. The burden of proof regarding any particular fact lies with the person who wants the court to believe in its existence, unless the law explicitly states otherwise that the proof of the fact must be on a specific person. 112. In civil proceedings, when any fact is especially within a party''s knowledge, the burden of proving or disproving that fact rests on that party.
18. The two provisions were addressed in the decision of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the court held as follows:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is, however, an evidential burden that is on any party, the burden of proving any particular fact which he desires the court to believe in its existence, as captured in Sections 109 and 112 of the Act.”
19. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR, it was held that:
“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
20. I asked Ms. Chepkwony about the applicability of adverse possession under sectional property ownership in Kenya. She did not address this point in her written submissions.
21. My inquiry was directed towards understanding the recent legislative developments about sectional property ownership within this jurisdiction. In Kenya, such ownership is predominantly regulated by the Sectional Properties Act, 2020, which supersedes the prior legal framework and sets out the regulations governing individual ownership of units within a building. Common areas are held collectively and managed by a Management Corporation.
22. Notable aspects of this legislation include the issuance of individual titles for units and the formal creation of a corporation responsible for supervising shared spaces and facilities. This legislation addresses the deficiencies of the prior system, which relied on a single title and a Management Company.
23. The Sectional Properties Act, 2020, serves as the primary law establishing the legal framework for sectional ownership in Kenya, allowing the subdivision of buildings into units with individual ownership, along with shared property for communal use. The preamble enacts:
“An Act of Parliament to provide for the division of buildings into units to be owned by individual proprietors and common property to be owned by proprietors of the units as tenants in common and to provide for the use and management of the units and common property and for connected purposes”
24. The Sectional Properties Regulations, 2020 and 2021, outline the procedures for implementing the Act, including the registration of sectional plans and converting existing long-term leases into sectional titles (I assume this is what the applicants are aiming for in this case). Key aspects of sectional ownership include individual unit ownership, where each unit within a building can be issued its own certificate of title registered separately.
25. Additionally, joint ownership of common areas means all unit owners share ownership of properties such as hallways, parking facilities, swimming pools, and clubhouses, et al, as tenants in common. The common property is held by all owners as tenants in common, with their shares determined by their "unit factor."
26. A Management Corporation is formed when a sectional plan is registered, and it is responsible for managing and maintaining common property. It has the power to levy service charges, register charges against units for unpaid fees, and initiate eviction proceedings against disruptive tenants. For long-term lease developments, developers must convert titles into sectional titles. Furthermore, a sectional plan based on an approved building plan and incorporating formal georeferencing must be properly registered.
27. The applicants’ adverse possession claim is purportedly supported by the search certificate produced, dated August 20, 2024, which shows that the Management Company owns the parent title in this matter, Palcino Oasis Limited. In the encumbrance section, several units, including the current unit, are listed as having been ordered to be registered in the name of the respondent, Pepe Teresa, by court orders issued pursuant to a 2007 court decree dated June 7, 2007, in Civil Suit No. 83 of 2005 (Malindi).
28. From the record, I did not see any title issued in favor of the respondent Pepe Teresa in compliance with the said orders. So, as it stands, the title remains in the Management Company''s hands.
29. The applicants also admit that it was the Management Company that allowed them to occupy the unit mentioned in the 2010 agreement. They pay for service charges as well as what they now call condominium charges.
30. The applicants further acknowledge that their claimed ownership rights in the unit stem from the court victory in 2007 by respondent Pepe Teresa. However, as I have mentioned, no title—at least none I observed—has been registered in her name. Her rights are reflected in the encumbrance section.
31. Furthermore, the applicants acknowledge that Pepe Teresa, the respondent, is one of the shareholders of the Management Company. The record also shows a significant dispute over the management and ownership of Palcino Oasis Limited. The Oasis Village, contrary to its name, is not a calm and tranquil oasis, as the civil matter mentioned shows: Pepe Teresa won a lawsuit and was declared entitled to be registered as the owner of several apartments against the Management Company, in which she is also a shareholder by right.
32. Furthermore, I notice from the record that in all management matters concerning the residents of Palcino Oasis Village, a representative of Pepe Teresa named Randu attends the meetings on her behalf.
33. At most, the applicants are allowed to be present at Palcino Oasis Village apartment F207 as lessees and are responsible to the Management Company, of which Pepe Teresa is a shareholder. In her personal capacity as the owner of the apartments at Palcino Oasis Village, she is typically represented in meetings by Randu, according to the applicants'' minutes and deliberations.
34. Consequently, adverse possession cannot apply here. The elements of actual and continuous possession—occupying the apartment without interruption for the statutory period of 12 years; open and notorious; non-permissive—have not been proven.
35. In conclusion, revisiting the issue of adverse possession vis-à-vis sectional property ownership, the law is evolving from the old system that the Sectional Property Act 2020 and the Regulations made thereunder aim to reorganize. Under the previous framework, a management company held the parent title for the entire parcel of land, and the unit owners were considered shareholders, as seen in the current action. The Act aims to ensure that each unit holder acquires an individual title, which an adverse possessor can then challenge, possibly in the near future.
36. In a landlord-tenant relationship where a tenant is allowed to occupy the demised premises by paying rent, adverse possession can only occur after the tenancy ends, the tenant stops paying rent, and the landlord has acquiesced to not receiving rent for a full period of 12 years. This represents a very high threshold for a potential adverse possession claimant to meet. See the Court of Appeal decision in Samwel Nyakenogo v Samwel Orucho Onyaru [2010] KECA 307 (KLR), in which the court stated:
“Time can run in favour of a tenant at will by virtue of section 12 of the Limitation of Actions Act but it cannot run in favour of a licensee, therefore a licensee has no possession (Hughes v. Griffin [1969] 1 WLR 23).”
37. I believe that in this situation, the applicants are ahead of the law—they are pushing the pendulum on adverse possession too far forward. They should wait until the law catches up, as the Sectional Properties Act 2020 and its related Regulations overhaul the infantile legal framework in this sector in Kenya.
38. Consequently, the OS is dismissed. It was not defended—no order as to costs.
Dated, signed, and delivered electronically in Malindi on November 20, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Chianda H/B for Ms.Chepwony for the Applicants
Happy: Court Assistant
'
a) The court considers whether the applicants have established adverse possession of Apartment F204, located on Land Reference No. 1862 Kilifi, based on the evidence of continuous occupation and legal principles outlined in the case.
b) the applicants be registered as the owners/proprietors of Apartment number F204, existing in Land Reference Number.1862 Kilifi. (herein after referred to as “the Apartment). ")
c) the respondent, her servants, agents, or anyone else, is permanently restrained from trespassing on Apartment No. F 204 on Land Reference Number 1862 Kilifi, in breach of the applicants'' rights as owners in adverse possession.
d) the respondent, her servants, agents, or anyone else, is permanently restrained from interfering with the Applicants’ quiet possession of Apartment No. F204 in Land Reference Number 1862.
e) An order be issued directing the respondent to execute all documents and take all necessary steps to effect the transfer to the applicant''s Apartment No. F204, located in Land Reference Number 1862, and, in default of such actions, the Deputy Registrar of this Honorable Court shall execute the said documents.
f) The Land Registrar, Mombasa, is hereby directed to register the applicants as owners of Apartment number F204, in OASIS Residency, existing in Land Reference Number 1862 C.R. NO 18273, and a provisional title is to be issued if need be.
g) A vesting order be issued in favor of the Applicants and the costs of this suit.
2. The OS is based on the grounds outlined on its face and the affidavit sworn on April 12, 2024, by George Mulanda Wanje, the 2nd plaintiff. The 1st plaintiff is the wife of the 2nd plaintiff and authorized her husband to plead, as evidenced by the authority dated April 26, 2024.
3. On August 18, 2025, instructions were given regarding hearing the OS via affidavits and viva voce evidence during the hearing. On May 8, 2025, the 2nd plaintiff testified, adopted his affidavit, and produced the listed and filed documents, thereby finalizing his case. The court directed the filing of written submissions. I acknowledge receipt of written submissions from learned counsel for the applicant, Ms. Chepkwony, with appreciation, which greatly contributed to resolving the issues raised in the OS.
4. Based on the evidence provided by the applicants, the respondent is the alleged registered owner of apartment No. F204, located on Land Parcel No. 1862 in Malindi, with Grant Number C.R. 18273. This ownership is established by a court decree dated June 7, 2007, in Civil Suit No. 83 of 2005 (Malindi), which transferred several other apartments, including F204, to the respondent during the execution of the court decree, as demonstrated by the search presented in court (GMW 3a and 3b).
5. The plaintiffs moved into the property before 2010 after reaching an agreement with Polcino Oasis Limited, which lost ownership of apartment F204 in 2007, along with other apartments, to the respondent, as documented in the search.
6. The applicants assert that they have continuously occupied the same apartment without interruption from the respondent for the past 14 years. During this time, they have only paid for service charges and utilities (electricity and water) since 2010; before then, they did not pay any rent.
7. The applicants claim that they have renovated the apartment as shown in the photos and that the County Government issued approvals for the extensive renovation. The respondent was aware of these approvals, was copied on them to give her consent, and has never objected. The approvals, renovation drawings, report, and photos were introduced into evidence in court.
8. The applicants'' claims that they have been in possession for more than 14 years. Continuity in publicity and extent has been maintained, and the respondent has never removed the applicants from the said apartment; instead, the respondent acknowledges their existence directly and through the Management Company, where the respondent is also a shareholder and director. In acknowledgment of the applicants'' presence, the respondent, directly or through her company or agents, has been sending messages to the applicants via WhatsApp and email, demanding payment of service charges, ever since she was registered as the owner.
9. The applicants claim that the respondent neglected her responsibilities for several apartments, and the apartment owners formed an association called Oasis Resident Association to handle the management of the flats and the payment of service charges. The applicants are also registered members of this association. The applicants presented minutes from a joint meeting held on August 7, 2023, along with updated records of condominium owners and expenses from April 12, 2024, circulated by the Oasis Residents Association.
10. The applicants claim that since 2010, they have peacefully and exclusively possessed the apartment with their family, developed it, and used the property solely. They seek registration in their names, having gained interest through adverse possession. They argue that, as a result, they are entitled to be registered as the owners of apartment No. F204, against the current owner, Pepe Teresa.
11. The applicants aver that, since taking possession over 14 years ago, the respondent has not objected or attempted eviction. The adverse possession period has fully elapsed, with continuous, open, and exclusive use. The applicants have lived on and developed the property for many years and now seek registration in their names.
12. Arising from the materials and submissions before me, the issues I frame for the court''s decision are whether the applicants have acquired proprietary rights over Apartment No. F204, located on Land Parcel No. 1862 in Malindi, with Grant Number C.R. 18273, through the operation of the doctrine of adverse possession, and whether they are subsequently entitled to the orders sought, including who should bear the costs of this litigation.
13. I concur entirely with the decisions articulated by Ms. Chepkwony regarding the definition of adverse possession, the methods of its proof, and the relevant legal framework. I need not reiterate the details herein; however, I affirm my agreement with Justice Yano''s conclusions in his reasoning, recognized by other judgments from the Superior Courts cited below concerning the doctrine of adverse possession in the case of Celina Muthoni Kithinji v. Safiya Binti Swaleh & 8 others [2018] eKLR, wherein his Lordship stated that:
“The Plaintiffs have stated that they have been in occupation of the suit property for a period ranging from 16 years to 60 years, which is a period of over 12 years. They also stated that they have been in occupation and Possession of the suit property openly and continuously and without interruption for all that period. There was no evidence availed to contradict the Plaintiffs’ averments. The Plaintiffs produced a copy of the title (exhibit 1) and certificate of official search (exhibit 2) confirming that the property is registered in the Defendants names. They also produced photographs showing extensive developments, including permanent buildings and crops. I have no doubt in my mind that such vast developments must have been undertaken over time and openly.
Considering the totality of the evidence availed in this case, and applying the legal principles as outlined above, it is clear that the Plaintiffs have proved their case on a balance of probability and have brought themselves within the limits of the doctrine of Adverse Possession.”
14. Ms. Chepkwony also emphasized the case of James Maina Kinya v Gerald Kwendaka [2018] eKLR, which I agree with, reaffirming core principles of adverse possession. To establish it, a claimant must show: actual and continuous possession—occupying the land physically without interruption for the statutory period; open and notorious possession—being clearly visible enough for a careful owner to notice; exclusive possession—possessing the land without sharing with the owner or the public; non-permissive possession—without the owner’s consent, since permission negatives adverse possession; and possession for 12 years—the legal requirement in Kenya.
15. . Also refer to the significant judicial precedents set by the Superior Courts: Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR, a key case that clarifies the essential elements of adverse possession; Mbira v Gachuhi [2002] 1 EALR 137, which established that the applicant must demonstrate non-permissive, actual, open, notorious, exclusive, and adverse use for the statutory period without interruption; Elms v Heard [2025] KEELC 3155 (KLR), a recent judgment that reinforces the legal stance on adverse possession and its components; Maina v Langat & 2 others [2025] KECA 75 (KLR), a Court of Appeal decision reflecting ongoing judicial interpretation and application of adverse possession law; and Okun v Deya & another [2025] KEELC 200 (KLR), an appeal where the court examined the application of adverse possession principles.
16. This matter underwent formal proof; the respondent did not defend it. Nonetheless, pursuant to Section 107(1) of the Evidence Act, which states that:
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
17. This refers to the legal burden of proof. However, there is also an evidential burden of proof, which is described in Sections 109 and 112 of the Evidence Act as follows: 109. The burden of proof regarding any particular fact lies with the person who wants the court to believe in its existence, unless the law explicitly states otherwise that the proof of the fact must be on a specific person. 112. In civil proceedings, when any fact is especially within a party''s knowledge, the burden of proving or disproving that fact rests on that party.
18. The two provisions were addressed in the decision of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the court held as follows:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is, however, an evidential burden that is on any party, the burden of proving any particular fact which he desires the court to believe in its existence, as captured in Sections 109 and 112 of the Act.”
19. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR, it was held that:
“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
20. I asked Ms. Chepkwony about the applicability of adverse possession under sectional property ownership in Kenya. She did not address this point in her written submissions.
21. My inquiry was directed towards understanding the recent legislative developments about sectional property ownership within this jurisdiction. In Kenya, such ownership is predominantly regulated by the Sectional Properties Act, 2020, which supersedes the prior legal framework and sets out the regulations governing individual ownership of units within a building. Common areas are held collectively and managed by a Management Corporation.
22. Notable aspects of this legislation include the issuance of individual titles for units and the formal creation of a corporation responsible for supervising shared spaces and facilities. This legislation addresses the deficiencies of the prior system, which relied on a single title and a Management Company.
23. The Sectional Properties Act, 2020, serves as the primary law establishing the legal framework for sectional ownership in Kenya, allowing the subdivision of buildings into units with individual ownership, along with shared property for communal use. The preamble enacts:
“An Act of Parliament to provide for the division of buildings into units to be owned by individual proprietors and common property to be owned by proprietors of the units as tenants in common and to provide for the use and management of the units and common property and for connected purposes”
24. The Sectional Properties Regulations, 2020 and 2021, outline the procedures for implementing the Act, including the registration of sectional plans and converting existing long-term leases into sectional titles (I assume this is what the applicants are aiming for in this case). Key aspects of sectional ownership include individual unit ownership, where each unit within a building can be issued its own certificate of title registered separately.
25. Additionally, joint ownership of common areas means all unit owners share ownership of properties such as hallways, parking facilities, swimming pools, and clubhouses, et al, as tenants in common. The common property is held by all owners as tenants in common, with their shares determined by their "unit factor."
26. A Management Corporation is formed when a sectional plan is registered, and it is responsible for managing and maintaining common property. It has the power to levy service charges, register charges against units for unpaid fees, and initiate eviction proceedings against disruptive tenants. For long-term lease developments, developers must convert titles into sectional titles. Furthermore, a sectional plan based on an approved building plan and incorporating formal georeferencing must be properly registered.
27. The applicants’ adverse possession claim is purportedly supported by the search certificate produced, dated August 20, 2024, which shows that the Management Company owns the parent title in this matter, Palcino Oasis Limited. In the encumbrance section, several units, including the current unit, are listed as having been ordered to be registered in the name of the respondent, Pepe Teresa, by court orders issued pursuant to a 2007 court decree dated June 7, 2007, in Civil Suit No. 83 of 2005 (Malindi).
28. From the record, I did not see any title issued in favor of the respondent Pepe Teresa in compliance with the said orders. So, as it stands, the title remains in the Management Company''s hands.
29. The applicants also admit that it was the Management Company that allowed them to occupy the unit mentioned in the 2010 agreement. They pay for service charges as well as what they now call condominium charges.
30. The applicants further acknowledge that their claimed ownership rights in the unit stem from the court victory in 2007 by respondent Pepe Teresa. However, as I have mentioned, no title—at least none I observed—has been registered in her name. Her rights are reflected in the encumbrance section.
31. Furthermore, the applicants acknowledge that Pepe Teresa, the respondent, is one of the shareholders of the Management Company. The record also shows a significant dispute over the management and ownership of Palcino Oasis Limited. The Oasis Village, contrary to its name, is not a calm and tranquil oasis, as the civil matter mentioned shows: Pepe Teresa won a lawsuit and was declared entitled to be registered as the owner of several apartments against the Management Company, in which she is also a shareholder by right.
32. Furthermore, I notice from the record that in all management matters concerning the residents of Palcino Oasis Village, a representative of Pepe Teresa named Randu attends the meetings on her behalf.
33. At most, the applicants are allowed to be present at Palcino Oasis Village apartment F207 as lessees and are responsible to the Management Company, of which Pepe Teresa is a shareholder. In her personal capacity as the owner of the apartments at Palcino Oasis Village, she is typically represented in meetings by Randu, according to the applicants'' minutes and deliberations.
34. Consequently, adverse possession cannot apply here. The elements of actual and continuous possession—occupying the apartment without interruption for the statutory period of 12 years; open and notorious; non-permissive—have not been proven.
35. In conclusion, revisiting the issue of adverse possession vis-à-vis sectional property ownership, the law is evolving from the old system that the Sectional Property Act 2020 and the Regulations made thereunder aim to reorganize. Under the previous framework, a management company held the parent title for the entire parcel of land, and the unit owners were considered shareholders, as seen in the current action. The Act aims to ensure that each unit holder acquires an individual title, which an adverse possessor can then challenge, possibly in the near future.
36. In a landlord-tenant relationship where a tenant is allowed to occupy the demised premises by paying rent, adverse possession can only occur after the tenancy ends, the tenant stops paying rent, and the landlord has acquiesced to not receiving rent for a full period of 12 years. This represents a very high threshold for a potential adverse possession claimant to meet. See the Court of Appeal decision in Samwel Nyakenogo v Samwel Orucho Onyaru [2010] KECA 307 (KLR), in which the court stated:
“Time can run in favour of a tenant at will by virtue of section 12 of the Limitation of Actions Act but it cannot run in favour of a licensee, therefore a licensee has no possession (Hughes v. Griffin [1969] 1 WLR 23).”
37. I believe that in this situation, the applicants are ahead of the law—they are pushing the pendulum on adverse possession too far forward. They should wait until the law catches up, as the Sectional Properties Act 2020 and its related Regulations overhaul the infantile legal framework in this sector in Kenya.
38. Consequently, the OS is dismissed. It was not defended—no order as to costs.
Dated, signed, and delivered electronically in Malindi on November 20, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Chianda H/B for Ms.Chepwony for the Applicants
Happy: Court Assistant
'