1. The Originating Summons dated September 20, 2024, filed by the Applicants, seeks the following Orders:
i. The Respondent's interest in the entire parcel of land in Mtwapa, Kilifi County, approximately 12.36 acres, known as Plot No. 1, Mtwapa Settlement Scheme, has been extinguished.
ii. The registrar of titles in Kilifi County shall delete entries in favor of the Respondent, one on the green card, and shall register or record the appropriate entries concerning the applicants without gazettement.
iii. The Registrar of Titles in Kilifi County is to reconstruct a skeleton file concerning Plot No. 1 Mtwapa Settlement Scheme.
iv. The applicants, Ngolo Baya, Bokole Mweni, James Kaingu Mwadumbo, and 51 others, be registered as the proprietors of all that piece of land approximately 12.36 acres or thereabout, being Plot No. 1, Mtwapa Settlement Scheme, in place of Karisa Jefwa Yaa, since the Applicants have become entitled to the said land by adverse possession.
v. The lands registrar —Kilifi, without gazettement, may proceed and issue a title document or provincial certificate for a parcel of land in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1, Mtwapa Settlement Scheme, in the names of the Applicants Ngolo Baya, Bokole Mweni, James Kaingu Mwadumbo, and 51 others. The orders referenced in paragraphs 1, 2, 3, 1,2,3,4, and 5 above should be registered against the title to the property known as the parcel of land situated in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1, Mtwapa Settlement Scheme, in accordance with section 38(2) of the Limitation of Actions Act, Chapter 22, Laws of Kenya.
vi. The Land Registrar of Kilifi County hereby waives the requirement for the presentation of the original title deed and all other pertinent legal documents by Ngōlo Baya, Bokole Mweni, James Kaingu Mwadumbo, and fifty-one others.
vii. The costs of this application should be provided.
2. The Applicants' counsel filed written submissions.
3. Based on the materials presented before me, the issues for determination by this court are whether the Applicants have proven their case on a balance of probabilities for the doctrine of adverse possession to be applied, whether the reliefs sought should be granted, and who should bear the costs of this litigation.
4. The Applicants’ case was fortified by the affidavit of Ngolo Baya, sworn on September 20, 2024, and was based on the following grounds. The Applicants have been in uninterrupted exclusive physical possession of the entire piece of land located in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1 Mtwapa Settlement Scheme, for a continuous period of over 40 years, and it is where their home is situated.
5. That the Respondent has demonstrated no interest in the parcel of land, nor have they issued any notice to vacate possession of the suit land to the Applicants, indicates that the Respondent’s rights and/or interests in the piece of land located in Kilifi County, approximately 12.36 acres or thereabouts, known as Plot No. 1 Mtwapa Settlement Scheme, have been extinguished. It is fair and just that the Applicants be registered as owners of the entire piece of land in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1 Mtwapa Settlement Scheme, so that they can stop living in fear of waking up one day to an eviction with their families.
6. The Applicants aver that they have peacefully exercised proprietary rights over the suit property for over 40 years and now claim it by law acquired legal rights over the suit property, containing by measurement approximately 12.36Acres or thereabout, being Plot No. 1 Mtwapa Settlement Scheme. The suit property is the only known home for the Applicants and their families.
7. In support of the suit, the Applicants filed the following documents to support their case:
a) Authority to act, plead, and testify
b) Photographs of the homesteads
c) Letter from NLC to the Defendant
d) Valuation report
8. The Respondent failed to appear and defend the suit despite being served with the pleadings. The case proceeded to a hearing, during which Ngolo Baya testified on behalf of himself and the other Applicants.
9. He testified that the Applicants have been in uninterrupted, exclusive physical possession of the entire piece of land situated in Kilifi County, measuring approximately 12.36 acres or thereabouts, known as Plot No. 1 Mtwapa Settlement Scheme, for a continuous period exceeding 40 years. Their residence is located thereon. The Respondent has shown no interest in the parcel of land and has not given any notice to vacate possession of the suit land to the Applicants.
10. The Respondent’s rights and or interests in all that piece of land situated in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1 Mtwapa Settlement Scheme, have been extinguished.
11. It is fair and just that the Applicants be registered as the owners of all that piece of land situated in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1 Mtwapa Settlement Scheme, so that they stop living in fear of waking up one day to an eviction with their families.
12. The Applicants have peacefully exercised proprietary rights over the suit property for over 40 years and now claim legal rights acquired over the property, referred to herein as the suit property, which measures approximately 12.36 acres or thereabouts, being Plot No. 1, Mtwapa Settlement Scheme. The suit property is the only known home for the Applicants and their families.
13. This court was moved under Order 37 Rule 7 of the Civil Procedure Rules, which provides the procedure for filing suits under Adverse Possession. It states that it shall be done through the Originating Summons.
14. Adverse possession is addressed in sections 7, 13, 17, 37, and 38 of the Limitations of Actions Act, Cap 22 Laws of Kenya. These sections cover adverse possession of land and also include provisions for revocation and registration of the new owner.
15. The Applicants have, on a balance of probabilities, shown that they have been on the suit property for more than 12 years without any interference from anyone. It was stated that they sued the Respondent after he allegedly misrepresented to the NLC that he was the owner of the property, which is why he received the letter from the NLC recognizing him as such.
16. The Applicants have been on the property for more than 40 years. They have built on the property, buried their loved ones, and are farming on the suit property. Photographs were produced to support this claim.
17. For adverse possession to accrue in Mbira v Gachuhi [2002] IEALR 137, it was held that:
“……. a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutory prescribed period without interruption….”
18. Adverse possession is widely recognized under Kenyan law. The Applicants have demonstrated that they have occupied the property physically for 12 years without interference from anyone. They have satisfied the criteria to be recognized as the owners of the property in question.
19. The court will allow the Applicants’ claim and propose the following final orders:
a) This court issues a declaration that the Respondent's interest in the entire parcel of land in Mtwapa, Kilifi County, approximately 12.36 acres, known as Plot No. 1, Mtwapa Settlement Scheme, has been extinguished.
b) The Registrar of titles in Kilifi County shall delete entries in favor of the Respondent, one Karisa Jefwa Yaa, on the green card, and shall register or record the appropriate entries concerning the Applicants.
c) The applicants, Ngolo Baya, Bokole Mweni, James Kaingu Mwadumbo, and 51 others, be registered as the proprietors of all that piece of land approximately 12.36 acres or thereabout, being Plot No. 1, Mtwapa Settlement Scheme, in place of Karisa Jefwa Yaa, since the Applicants have become entitled to the said land by adverse possession.
d) There will be no order as to costs.
Dated, signed, and delivered at Malindi virtually on this 23rd day of July 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Mathare for the Applicants
Happy: Court Assistant
In the Absence of:
The Respondents
i. The Respondent's interest in the entire parcel of land in Mtwapa, Kilifi County, approximately 12.36 acres, known as Plot No. 1, Mtwapa Settlement Scheme, has been extinguished.
ii. The registrar of titles in Kilifi County shall delete entries in favor of the Respondent, one on the green card, and shall register or record the appropriate entries concerning the applicants without gazettement.
iii. The Registrar of Titles in Kilifi County is to reconstruct a skeleton file concerning Plot No. 1 Mtwapa Settlement Scheme.
iv. The applicants, Ngolo Baya, Bokole Mweni, James Kaingu Mwadumbo, and 51 others, be registered as the proprietors of all that piece of land approximately 12.36 acres or thereabout, being Plot No. 1, Mtwapa Settlement Scheme, in place of Karisa Jefwa Yaa, since the Applicants have become entitled to the said land by adverse possession.
v. The lands registrar —Kilifi, without gazettement, may proceed and issue a title document or provincial certificate for a parcel of land in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1, Mtwapa Settlement Scheme, in the names of the Applicants Ngolo Baya, Bokole Mweni, James Kaingu Mwadumbo, and 51 others. The orders referenced in paragraphs 1, 2, 3, 1,2,3,4, and 5 above should be registered against the title to the property known as the parcel of land situated in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1, Mtwapa Settlement Scheme, in accordance with section 38(2) of the Limitation of Actions Act, Chapter 22, Laws of Kenya.
vi. The Land Registrar of Kilifi County hereby waives the requirement for the presentation of the original title deed and all other pertinent legal documents by Ngōlo Baya, Bokole Mweni, James Kaingu Mwadumbo, and fifty-one others.
vii. The costs of this application should be provided.
2. The Applicants' counsel filed written submissions.
3. Based on the materials presented before me, the issues for determination by this court are whether the Applicants have proven their case on a balance of probabilities for the doctrine of adverse possession to be applied, whether the reliefs sought should be granted, and who should bear the costs of this litigation.
4. The Applicants’ case was fortified by the affidavit of Ngolo Baya, sworn on September 20, 2024, and was based on the following grounds. The Applicants have been in uninterrupted exclusive physical possession of the entire piece of land located in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1 Mtwapa Settlement Scheme, for a continuous period of over 40 years, and it is where their home is situated.
5. That the Respondent has demonstrated no interest in the parcel of land, nor have they issued any notice to vacate possession of the suit land to the Applicants, indicates that the Respondent’s rights and/or interests in the piece of land located in Kilifi County, approximately 12.36 acres or thereabouts, known as Plot No. 1 Mtwapa Settlement Scheme, have been extinguished. It is fair and just that the Applicants be registered as owners of the entire piece of land in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1 Mtwapa Settlement Scheme, so that they can stop living in fear of waking up one day to an eviction with their families.
6. The Applicants aver that they have peacefully exercised proprietary rights over the suit property for over 40 years and now claim it by law acquired legal rights over the suit property, containing by measurement approximately 12.36Acres or thereabout, being Plot No. 1 Mtwapa Settlement Scheme. The suit property is the only known home for the Applicants and their families.
7. In support of the suit, the Applicants filed the following documents to support their case:
a) Authority to act, plead, and testify
b) Photographs of the homesteads
c) Letter from NLC to the Defendant
d) Valuation report
8. The Respondent failed to appear and defend the suit despite being served with the pleadings. The case proceeded to a hearing, during which Ngolo Baya testified on behalf of himself and the other Applicants.
9. He testified that the Applicants have been in uninterrupted, exclusive physical possession of the entire piece of land situated in Kilifi County, measuring approximately 12.36 acres or thereabouts, known as Plot No. 1 Mtwapa Settlement Scheme, for a continuous period exceeding 40 years. Their residence is located thereon. The Respondent has shown no interest in the parcel of land and has not given any notice to vacate possession of the suit land to the Applicants.
10. The Respondent’s rights and or interests in all that piece of land situated in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1 Mtwapa Settlement Scheme, have been extinguished.
11. It is fair and just that the Applicants be registered as the owners of all that piece of land situated in Kilifi County, measuring approximately 12.36 acres or thereabouts, being Plot No. 1 Mtwapa Settlement Scheme, so that they stop living in fear of waking up one day to an eviction with their families.
12. The Applicants have peacefully exercised proprietary rights over the suit property for over 40 years and now claim legal rights acquired over the property, referred to herein as the suit property, which measures approximately 12.36 acres or thereabouts, being Plot No. 1, Mtwapa Settlement Scheme. The suit property is the only known home for the Applicants and their families.
13. This court was moved under Order 37 Rule 7 of the Civil Procedure Rules, which provides the procedure for filing suits under Adverse Possession. It states that it shall be done through the Originating Summons.
14. Adverse possession is addressed in sections 7, 13, 17, 37, and 38 of the Limitations of Actions Act, Cap 22 Laws of Kenya. These sections cover adverse possession of land and also include provisions for revocation and registration of the new owner.
15. The Applicants have, on a balance of probabilities, shown that they have been on the suit property for more than 12 years without any interference from anyone. It was stated that they sued the Respondent after he allegedly misrepresented to the NLC that he was the owner of the property, which is why he received the letter from the NLC recognizing him as such.
16. The Applicants have been on the property for more than 40 years. They have built on the property, buried their loved ones, and are farming on the suit property. Photographs were produced to support this claim.
17. For adverse possession to accrue in Mbira v Gachuhi [2002] IEALR 137, it was held that:
“……. a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutory prescribed period without interruption….”
18. Adverse possession is widely recognized under Kenyan law. The Applicants have demonstrated that they have occupied the property physically for 12 years without interference from anyone. They have satisfied the criteria to be recognized as the owners of the property in question.
19. The court will allow the Applicants’ claim and propose the following final orders:
a) This court issues a declaration that the Respondent's interest in the entire parcel of land in Mtwapa, Kilifi County, approximately 12.36 acres, known as Plot No. 1, Mtwapa Settlement Scheme, has been extinguished.
b) The Registrar of titles in Kilifi County shall delete entries in favor of the Respondent, one Karisa Jefwa Yaa, on the green card, and shall register or record the appropriate entries concerning the Applicants.
c) The applicants, Ngolo Baya, Bokole Mweni, James Kaingu Mwadumbo, and 51 others, be registered as the proprietors of all that piece of land approximately 12.36 acres or thereabout, being Plot No. 1, Mtwapa Settlement Scheme, in place of Karisa Jefwa Yaa, since the Applicants have become entitled to the said land by adverse possession.
d) There will be no order as to costs.
Dated, signed, and delivered at Malindi virtually on this 23rd day of July 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Mathare for the Applicants
Happy: Court Assistant
In the Absence of:
The Respondents