REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MALINDI
ELCLC NO. E077 OF 2025 OS
IN THE MATTER OF: PARCEL NO. MIKAHANI /MAWEBOMU/628
AND
IN THE MATTER OF: SECTION 38 OF THE LIMITATION OF ACTION CAР 22 LAWS OF KENYA
AND
AN APPLICATION FOR DECLARATION THAT THЕ APPLICANTS / PLAINTIFFS HAVE OBTAINED OWNERSHIP OF THE ABOVE-NAMED PARCEL OF LAND BY WAY OF ADVERSE POSSESSION
BETWEEN
1. RAMADHAN MWANDORO MWAMBO
2. JUMA MWANDORO MWAMBO
3. IDD MWANDORO MWAMBO
4. RASHID MWANDORO MWAMВО
5. RAJAB MWANDORO MWAЈОНА. …………………….PLAINTIFFS
VERSUS
PEKESHE NDEJE NDARO……………………………………DEFEDANT
JUDGMENT
1. The plaintiff herein filed an originating summons on August 22, 2022, and sought orders of the Court recognizing that they have obtained title to parcel No. Mikahani/ Mawebomu /628, measuring approximately 1.72 hectares, through adverse possession after staying, occupying, and residing on the aforementioned parcel of land for a period of 12 years. Furthermore, they request that the Court order that they be registered as the lawful owners, along with the provision of costs of the suit.
2. Service of summons was made by substituted service, pursuant to leave of this Court (Angima J.) on May 13, 2025. Therefore, the matter proceeded ex parte.
3. Following the conclusion of the plaintiffs’ case, the Court instructed the plaintiff's counsel to submit written submissions. I hereby confirm receipt of these submissions and affirm that I have duly considered them in this matter.
4. This Court needs to decide whether the plaintiffs have gained ownership of the suit property through adverse possession and if they are entitled to the orders requested in the OS, including the associated costs.
5. Ramadhan Mwandoro Mwambo – PWI – testified that he resides in and is employed in Rabai. He is among the plaintiffs and was authorized to represent all plaintiffs in this matter. He submitted statements regarding the suit property, dated 22nd August 2022 and 7th July 2025. He adopted these statements as part of his evidence-in-chief. PW-1 further testified that he filed a list of pertinent documents, which he presented as exhibits 1-2(a) and (b), marked as exhibits 1 and 2. Additionally, he produced photographs, marked as exhibits 3 and 4.
6. He also testified that the other plaintiffs and he have occupied and possessed the suit property continuously for over 12 years. Their uninterrupted possession has been adverse to the defendant's ownership and title. The photographs display development and settlement on the property. Accordingly, the plaintiffs argue that they have proven continuous possession for more than 12 years and are eligible for the orders requested in the OS.
7. The plaintiffs cited multiple judicial authorities to substantiate their adverse possession claim, notably: Mombasa HCCC No. 151 of 2003 (os), Jefwa Nyale Kithi vs. Sugrabai Mulla Mohamed Ali; Mombasa HCCC No. 134 of 2004 (os), Christine Nyamalwa vs. Syad Walayat Sha Khair UD. Din; Mombasa HCCC No. 237 of 2011 (os), Laleine M Suleiman vs. Abdulhusein M. A. Norbhai; Salim vs. Boyd & Another, EA Pg. 552; and Ismail Omar Bwanakali & 11 others v Mwalimu Said Boye Alias Mwalimu Said Mwaboye & another [2019] KEELC 147 (KLR).
8. Guided by the cited judicial authorities under Kenyan law, as established, and considering the leading authority in this realm: Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, proof of adverse possession requires demonstrating actual, open, notorious, exclusive, and uninterrupted occupation of land against the owner's will for at least 12 years.
9. According to the cited authorities, the elements of adverse possession are: non-permissive use, which demonstrates that the occupation was acquired without force, stealth, or the owner’s consent or license (nec vi, nec clam, nec precario); exclusivity and openness (animus possidendi): the claimant must show clear, unequivocal actions demonstrating an intent to exclude the true owner and the public from enjoying the property; continuity: the twelve-year period must be uninterrupted; sporadic or abandoned temporary structures interrupt the continuity requirement; and mutually exclusive claims: a party cannot assert ownership via adverse possession while simultaneously claiming that the title owner’s deed was fraudulent, as both legal positions are contradictory.
10. In this matter, the plaintiffs have asserted that they have been on the suit property for over 12 years, have done development, have asserted possession without interruption, and that the owner of the title has not asserted his rights by evicting them.
11. Consequently, I am satisfied that the plaintiffs have proved their claim and therefore are entitled to the orders sought in the OS.
12. Since the claim is undefended, I will award no costs.
Dated, signed, and delivered virtually in Nyeri on this 22nd day of July 2026
E. K. MAKORI
JUDGE
Mr. Gitonga for the Plaintiffs
Defendant(entered no appearance)
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