1. Applicant, in the Originating Summons dated July 14, 2025, pleaded that their primary intention is to seek declaratory judgments against the respondent, including, but not limited to, the following:
a) He has acquired title to fourteen (14) acres comprising Plot No. 5662, Malindi (hereafter 'the suit property'), situated in the Kivulini area, Malindi Sub-county, Kilifi County, by adverse possession; and,
b) An Order directing the land registrar to register and issue him a certificate of title to the suit property.
c) Costs.
2. The prayers sought are grounded in Sections 7, 13, 17, and 38(1) of the Limitation of Actions Act, Cap 22, and are strengthened by longstanding jurisprudence affirming that where a claimant has occupied land peacefully, openly, continuously, and without the owner's consent for a period exceeding twelve (12) months, the registered proprietor's title is extinguished. The Claimant is entitled to be registered as proprietor upon moving the High Court as prescribed.
3. In arguing his case, the applicant relies on the facts set out in his pleadings and the Affidavits filed in Support of the Originating Summons, notably that on or about the year 1980, the applicant herein entered into and established actual possession of the suit property, which occupation was peaceful, open, and notorious and uninterrupted throughout the entire period now exceeding forty (40) years.
4. Applicant contends that it is not disputed that the respondent is the registered proprietor of the suit property, as evidenced by the Certificate of Postal search as of 30th April, 2024. However, the applicant contends that this very title has been extinguished by operation of law.
5. The applicant now seeks this Court's pronouncement affirming the same and a further order sanctioning the registration of the subject property in his favor.
6. Applicant avers that on the one hand, the respondent has neither occupied, developed, nor taken any steps to utilize the suit property since its purchase. On the other hand, the applicant has planted several trees that are over twelve (12) years old on the suit land and wishes to regularize his occupation as the beneficial owner by way of adverse possession.
7. Further, in its Replying Affidavit dated 1st September, 2025, sworn by one Mohamed Ali Ali Mohamed in his capacity as director of the respondent, it is clear that the respondent does not dispute the applicant's notorious occupation for the entire period but merely avers that the applicant was aware that the land is registered in its name and urges the court to allow the prayers as pleaded.
8. To support the foregoing, the applicant cites the decisions in Peter Kamau Njau v Emmanuel Charo Tinga [2016] eKLR; Wambugu v Njuguna [1983] KLR 171; Jandu v Kirpal & Another [1975] EA 225; and Samuel Kihamba v Mary Mbaisi [2015] eKLR, asserting that to succeed in a claim for adverse possession, one must prove that one has occupied the land openly, that is, without force, without secrecy, and without the land owner's license or permission, 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 phrase nec vi, nec clam, nec precario. The additional requirement is animus possidendi, or intention to have the land.
9. The respondent, on the other hand, contends that the applicant herein, in paragraph 3 of the supporting Affidavit, confirms that she was aware that the land was initially owned by one Leah Waiyigo Njaramba and later transferred to the respondent herein. The applicant did not take any legal steps to challenge the transfer to the respondent but chose to remain silent, thereby attempting to claim adverse possession by alleging that she lived on the land for more than 12 years.
10. Therefore, according to the respondent, the applicant has been on the land with the permission and license of the applicant and its predecessor in title; hence, the doctrine of adverse possession does not apply.
11. To strengthen this argument, the respondent has cited the decisions in Mombasa Teachers Co-operative Savings & Credit Society Limited versus Robert Muhambi Katana & 15 others [2018] eKLR; Samuel Kihambo versus Mary Mbaisi [2015] eKLR (concerning the elements of adverse possession); Margaret Njeri Wachira v Eliud Waweru Njenga [2018] eKLR (that title to property is a prima facie element of ownership); and Kiplangat Shelisheli Mutarakwa v Joseph Rotich Kones [2018] eKLR (that the title held by the applicant requires protection, as it was acquired legally). The respondent also argues that its title cannot be extinguished when the applicant has been permitted and licensed to stay by the respondent, who makes regular visits.
12. In this matter, I am guided and adhere to the principles defining adverse possession as established by the cited authorities, notably Samuel Kihambo v Mary Mbaisi [2015] eKLR:
"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 clam nec precario. The additional requirement is that of animus possidendi or intention to have the land."
13. It is not disputed that the respondent is the registered owner of the suit property and that the applicant has been in occupation for more than 12 years. It is agreed that the respondent purchased the land while the applicant was in possession and acquiesced to the stay. However, the respondent contends that the stay was under the permission of the former owner and the respondent.
14. What remains in dispute in this matter is whether the applicant’s stay at the suit property was with the permission of the respondent or the predecessor in title.
15. According to the materials, the title document and the transfer in the respondent's name were completed on 3rd May 1993. Before that, the applicant had resided on this land since the 1980s, and neither the successor nor the predecessor in title took any action to remove him.
16. The Court of Appeal discussed a scenario like this in the case of Solomon Muathe Mitau & 787 others v Nguni Group Ranch (2017) eKLR, which stated:
“As regards the period of possession, time begins to run when there is some person in adverse possession of the land and not by virtue of the fact that the land is vacant. In respect of registered land, adverse possession dates from the granting of the certificate of title, for that is when the title holder is prima facie entitled to possession and therefore entitled to take action against any intruder to the land.”
17. Further, this Court (Wabwoto J.) in Wambua & 6 others v Nguni Group Ranch [2023] KEELC 17680 (KLR) (25 May 2023) (Judgment) held as follows:
“A registered proprietor of land is defined under section 3 (a) of the Land Registration Act as the person named in the register as the proprietor. In this suit, evidence was tendered that the suit parcels of land are either registered or do belong to the Respondents. The court has also observed that even though the Respondents claimed to have purchased and or acquired the suit properties, it was evident that the said acquisition and or purchase was made when the Applicants were already residing in the said suit properties. The Respondents could not have been aware of the existence of the Applicants on the suit property during their acquisition and or purchase of the same. Clearly, the Respondents knew that there were some people residing and occupying the land.
95. In Chevron (K) Ltd v Harison Charo Wa Shutu (2016) eKLR, the court held that whether the possession was adverse for 12 years was a burden imposed by law on the person claiming to prove not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession and that the adverse possessor had done acts inconsistent with the true owner’s enjoyment of the soil for the purpose for which he intended to use it.
96. During the trial, the Respondents were unable to adduce any evidence demonstrating whether they had ever taken possession or occupation of the said suit properties for the entire duration. From the evaluation of the evidence that was tendered, it was also evident that by building structures on the land without the permission of the Respondents, the Applicants had manifested animus possidendi, a clear mind and intention of dealing with the suit land as if it was exclusively theirs and in a manner that was a clear conflict with the Respondents rights. This court is therefore satisfied that the Applicants are therefore entitled to ownership of the said properties without further reference to the title holders who are the Respondents herein, since they have met the prescribed standards permitted by the law.”
18. Applicant contends that, on or about the year 1980, the applicant herein entered into and established actual possession of the suit property. Respondent purchased the property in the year 1993, when the applicant was still in possession. The predecessor in title and the successor, the respondent, have taken no action to evict the applicant to date.
19. According to the record, the applicant has been in possession of the land since the 1980s. When the respondent made the purchase, the applicant was still on the land, and the successor in title (the respondent) has taken no action to evict the applicant since 1993. There is nothing on record showing that permission was accorded to the applicant to occupy the land taken by either the predecessor or the successor in title. There were only regular visits to the land.
20. To my mind, the scenario we have shows that the applicant has been in occupation of the suit property from the 1980s through 1993, when the respondent purchased it, and that no steps were taken to dispossess or evict the applicant. The doctrine of adverse possession then sets in.
21. The upshot is that the OS succeeds, and these will be the final orders of the Court:
a) A declaration that the applicant has acquired fourteen (14) acres comprised in Plot No. 5662 Malindi by adverse possession.
b) A declaration that the respondent's title to the said fourteen acres has been extinguished under Section 17 of the Limitation of Actions Act.
c) An order under Section 38 directing the Land Registrar, Kilifi County, to register the applicant as proprietor of the said fourteen (14) acres; and
d) Costs of this suit to the applicant.
Dated, signed, and electronically delivered in Nyeri on this 29th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Kai for the Applicant
Kendi: Court Assistant
In the Absence of:
Mr. Komora for the Respondent
a) He has acquired title to fourteen (14) acres comprising Plot No. 5662, Malindi (hereafter 'the suit property'), situated in the Kivulini area, Malindi Sub-county, Kilifi County, by adverse possession; and,
b) An Order directing the land registrar to register and issue him a certificate of title to the suit property.
c) Costs.
2. The prayers sought are grounded in Sections 7, 13, 17, and 38(1) of the Limitation of Actions Act, Cap 22, and are strengthened by longstanding jurisprudence affirming that where a claimant has occupied land peacefully, openly, continuously, and without the owner's consent for a period exceeding twelve (12) months, the registered proprietor's title is extinguished. The Claimant is entitled to be registered as proprietor upon moving the High Court as prescribed.
3. In arguing his case, the applicant relies on the facts set out in his pleadings and the Affidavits filed in Support of the Originating Summons, notably that on or about the year 1980, the applicant herein entered into and established actual possession of the suit property, which occupation was peaceful, open, and notorious and uninterrupted throughout the entire period now exceeding forty (40) years.
4. Applicant contends that it is not disputed that the respondent is the registered proprietor of the suit property, as evidenced by the Certificate of Postal search as of 30th April, 2024. However, the applicant contends that this very title has been extinguished by operation of law.
5. The applicant now seeks this Court's pronouncement affirming the same and a further order sanctioning the registration of the subject property in his favor.
6. Applicant avers that on the one hand, the respondent has neither occupied, developed, nor taken any steps to utilize the suit property since its purchase. On the other hand, the applicant has planted several trees that are over twelve (12) years old on the suit land and wishes to regularize his occupation as the beneficial owner by way of adverse possession.
7. Further, in its Replying Affidavit dated 1st September, 2025, sworn by one Mohamed Ali Ali Mohamed in his capacity as director of the respondent, it is clear that the respondent does not dispute the applicant's notorious occupation for the entire period but merely avers that the applicant was aware that the land is registered in its name and urges the court to allow the prayers as pleaded.
8. To support the foregoing, the applicant cites the decisions in Peter Kamau Njau v Emmanuel Charo Tinga [2016] eKLR; Wambugu v Njuguna [1983] KLR 171; Jandu v Kirpal & Another [1975] EA 225; and Samuel Kihamba v Mary Mbaisi [2015] eKLR, asserting that to succeed in a claim for adverse possession, one must prove that one has occupied the land openly, that is, without force, without secrecy, and without the land owner's license or permission, 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 phrase nec vi, nec clam, nec precario. The additional requirement is animus possidendi, or intention to have the land.
9. The respondent, on the other hand, contends that the applicant herein, in paragraph 3 of the supporting Affidavit, confirms that she was aware that the land was initially owned by one Leah Waiyigo Njaramba and later transferred to the respondent herein. The applicant did not take any legal steps to challenge the transfer to the respondent but chose to remain silent, thereby attempting to claim adverse possession by alleging that she lived on the land for more than 12 years.
10. Therefore, according to the respondent, the applicant has been on the land with the permission and license of the applicant and its predecessor in title; hence, the doctrine of adverse possession does not apply.
11. To strengthen this argument, the respondent has cited the decisions in Mombasa Teachers Co-operative Savings & Credit Society Limited versus Robert Muhambi Katana & 15 others [2018] eKLR; Samuel Kihambo versus Mary Mbaisi [2015] eKLR (concerning the elements of adverse possession); Margaret Njeri Wachira v Eliud Waweru Njenga [2018] eKLR (that title to property is a prima facie element of ownership); and Kiplangat Shelisheli Mutarakwa v Joseph Rotich Kones [2018] eKLR (that the title held by the applicant requires protection, as it was acquired legally). The respondent also argues that its title cannot be extinguished when the applicant has been permitted and licensed to stay by the respondent, who makes regular visits.
12. In this matter, I am guided and adhere to the principles defining adverse possession as established by the cited authorities, notably Samuel Kihambo v Mary Mbaisi [2015] eKLR:
"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 clam nec precario. The additional requirement is that of animus possidendi or intention to have the land."
13. It is not disputed that the respondent is the registered owner of the suit property and that the applicant has been in occupation for more than 12 years. It is agreed that the respondent purchased the land while the applicant was in possession and acquiesced to the stay. However, the respondent contends that the stay was under the permission of the former owner and the respondent.
14. What remains in dispute in this matter is whether the applicant’s stay at the suit property was with the permission of the respondent or the predecessor in title.
15. According to the materials, the title document and the transfer in the respondent's name were completed on 3rd May 1993. Before that, the applicant had resided on this land since the 1980s, and neither the successor nor the predecessor in title took any action to remove him.
16. The Court of Appeal discussed a scenario like this in the case of Solomon Muathe Mitau & 787 others v Nguni Group Ranch (2017) eKLR, which stated:
“As regards the period of possession, time begins to run when there is some person in adverse possession of the land and not by virtue of the fact that the land is vacant. In respect of registered land, adverse possession dates from the granting of the certificate of title, for that is when the title holder is prima facie entitled to possession and therefore entitled to take action against any intruder to the land.”
17. Further, this Court (Wabwoto J.) in Wambua & 6 others v Nguni Group Ranch [2023] KEELC 17680 (KLR) (25 May 2023) (Judgment) held as follows:
“A registered proprietor of land is defined under section 3 (a) of the Land Registration Act as the person named in the register as the proprietor. In this suit, evidence was tendered that the suit parcels of land are either registered or do belong to the Respondents. The court has also observed that even though the Respondents claimed to have purchased and or acquired the suit properties, it was evident that the said acquisition and or purchase was made when the Applicants were already residing in the said suit properties. The Respondents could not have been aware of the existence of the Applicants on the suit property during their acquisition and or purchase of the same. Clearly, the Respondents knew that there were some people residing and occupying the land.
95. In Chevron (K) Ltd v Harison Charo Wa Shutu (2016) eKLR, the court held that whether the possession was adverse for 12 years was a burden imposed by law on the person claiming to prove not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession and that the adverse possessor had done acts inconsistent with the true owner’s enjoyment of the soil for the purpose for which he intended to use it.
96. During the trial, the Respondents were unable to adduce any evidence demonstrating whether they had ever taken possession or occupation of the said suit properties for the entire duration. From the evaluation of the evidence that was tendered, it was also evident that by building structures on the land without the permission of the Respondents, the Applicants had manifested animus possidendi, a clear mind and intention of dealing with the suit land as if it was exclusively theirs and in a manner that was a clear conflict with the Respondents rights. This court is therefore satisfied that the Applicants are therefore entitled to ownership of the said properties without further reference to the title holders who are the Respondents herein, since they have met the prescribed standards permitted by the law.”
18. Applicant contends that, on or about the year 1980, the applicant herein entered into and established actual possession of the suit property. Respondent purchased the property in the year 1993, when the applicant was still in possession. The predecessor in title and the successor, the respondent, have taken no action to evict the applicant to date.
19. According to the record, the applicant has been in possession of the land since the 1980s. When the respondent made the purchase, the applicant was still on the land, and the successor in title (the respondent) has taken no action to evict the applicant since 1993. There is nothing on record showing that permission was accorded to the applicant to occupy the land taken by either the predecessor or the successor in title. There were only regular visits to the land.
20. To my mind, the scenario we have shows that the applicant has been in occupation of the suit property from the 1980s through 1993, when the respondent purchased it, and that no steps were taken to dispossess or evict the applicant. The doctrine of adverse possession then sets in.
21. The upshot is that the OS succeeds, and these will be the final orders of the Court:
a) A declaration that the applicant has acquired fourteen (14) acres comprised in Plot No. 5662 Malindi by adverse possession.
b) A declaration that the respondent's title to the said fourteen acres has been extinguished under Section 17 of the Limitation of Actions Act.
c) An order under Section 38 directing the Land Registrar, Kilifi County, to register the applicant as proprietor of the said fourteen (14) acres; and
d) Costs of this suit to the applicant.
Dated, signed, and electronically delivered in Nyeri on this 29th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Kai for the Applicant
Kendi: Court Assistant
In the Absence of:
Mr. Komora for the Respondent