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ELCPartially AllowedELC No. 19 of 2022 (OS)

Mangi & another v Naaman (Enviromental and Land Originating Summons E019 of 2022) [2025] KEELC 1493 (KLR)

Environment and Land Court
21 March 2025
14,540 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~58 min to read original · ~4 min brief

The bottom line

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A Mombasa court ruled that people who openly occupy land for over 12 years can win legal ownership from the registered owner.

What this practically means

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Executive summary

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The Plaintiffs, Safari Mweri Mangi and Kadzo Ndoro Nyiro, brought an Originating Summons under Sections 7, 13, 37 and 38 of the Limitation of Actions Act claiming Plot Sub-Division No. 4098 (Original No. 3241/53/III/MN), Mtwapa, by adverse possession. The 1st Plaintiff alleged he entered the land in 1996 as a fish monger and found the 2nd Plaintiff already settled there, having been born on it around 1935; both had built homes, raised families and buried ancestors on the land without interruption. The Defendant, registered proprietor since 2004, denied the claim, asserting the Plaintiffs invaded in 2018, and counterclaimed for eviction, a permanent injunction, damages for trespass and mesne profits, pointing to prior litigation against Kassim Maona and other squatters. The court, Naikuni J, conducted a consensual site visit (locus in quo) whose report confirmed old permanent and semi-permanent structures, families in occupation, livestock keeping and Giriama graves on the land, while the Defendant's only development was a perimeter wall. Applying Sections 7 and 13 of the Limitation of Actions Act and the Kimani Ruchure and Gabriel Mbui tests, the court found the Plaintiffs in actual, open, continuous, non-permissive and uninterrupted possession exceeding 12 years, extinguishing the Defendant's title. The Defendant, having called no corroborating witnesses, failed to prove his Counter-Claim, which was caught by laches. The Originating Summons was allowed in its entirety with costs; the Defendant's interests were extinguished, survey, subdivision and registration of the Plaintiffs' portions were ordered, and the Counter-Claim was dismissed with costs to the Plaintiffs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiffs have made out their claim of the suit land by way of adverse possession
  2. 2.Whether the Defendant has made out his claim in the Counter-Claim
  3. 3.Whether the Parties herein are entitled to the prayers sought
  4. 4.Who meets costs of the suit and counterclaim

Key legal issues

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01

Whether the Plaintiffs proved adverse possession of the suit property

Holding

Yes. The Plaintiffs were in actual, open, continuous and uninterrupted possession from 1996 (1st Plaintiff) and 1935 (2nd Plaintiff), far exceeding the 12-year statutory period, to the exclusion of the registered owner whose only development was a perimeter wall

Reasoning

The court applied Sections 7, 13 and 38 of the Limitation of Actions Act and the Kimani Ruchure and Gabriel Mbui tests. The site visit confirmed old permanent and semi-permanent structures, families living on the land, and Giriama graves. The Defendant never used or occupied the land. Even counting from his alleged 2017-2018 evictions, the 12-year period was met. The Plaintiffs' claim succeeded.

02

Whether the Defendant proved his Counter-Claim for eviction, injunction, damages for trespass and mesne profits

Holding

No. The Defendant's title was extinguished by operation of law and the trespass claim could not stand after extinguishment; the claim was also caught by laches

Reasoning

The Defendant produced no evidence linking the Plaintiffs to the prior litigation over the land, called no neighbours, chief, surveyor or registrar, and himself admitted the Plaintiffs' permanent houses predated his perimeter wall. Having slept on his rights while the Plaintiffs possessed the land adversely for over 12 years, his Counter-Claim failed and was dismissed with costs.

p. 25
03

Costs of the suit and Counter-Claim

Holding

Costs follow the event; the Plaintiffs, having succeeded on both the Originating Summons and the defence to the Counter-Claim, were awarded costs

Reasoning

Under Section 27(1) of the Civil Procedure Act, costs are discretionary and ordinarily follow the event. Since the Plaintiffs prevailed on their claim and defeated the Counter-Claim, both sets of costs were awarded to them and borne by the Defendant.

Legal principles established

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  • Adverse possession is established by actual, open, continuous and non-permissive occupation of registered land to the exclusion of the registered owner for the statutory period of 12 years, whereupon the owner's title is extinguished
  • A party who seeks to rely on the existence of facts bears the burden of proving those facts
  • Possession to found adverse possession must be nec vi, nec clam, nec precario - no force, no secrecy, no persuasion
  • Rights acquired under the limitation of actions are overriding interests under Section 28(h) of the Land Registration Act

Court orders

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  1. 1.The Originating Summons dated 23rd February, 2022 succeeds in its entirety and is allowed with costs
  2. 2.The Statement of Defence and Counter-Claim dated 24th April, 2023 is found to lack merit and dismissed in its entirety with costs
  3. 3.The Respondent's interests in Plot Sub-Division No. 4098 (Original No. 3241/53/III/MN) are extinguished
  4. 4.A survey and subdivision of the portions occupied by the Plaintiffs to be done for their registration as owners jointly and severally by adverse possession
  5. 5.The Land Registrar Mombasa to issue title documents for the portions occupied by the Plaintiffs
  6. 6.The orders be registered against the title in terms of Section 38(2) of the Limitation of Actions Act
  7. 7.Costs of the Originating Summons and Counter-Claim awarded to the Plaintiffs and borne by the Defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution, Section 13 of the Environment and Land Court Act, No. 19 of 2011 and Section 38 of the Limitation of Actions Act, Cap. 22

Relief refused

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Defendant's Counter-Claim (eviction order, permanent injunction, damages for trespass, mesne profits)

Defendant failed to prove the Counter-Claim; his title was extinguished by the Plaintiffs' adverse possession and the claim was caught by laches

p. 25

Costs

The costs of the Originating Summons dated 23rd February, 2022 and the Counter-Claim dated 24th April, 2023 awarded to the 1st & 2nd Plaintiffs and borne by the Defendant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the suit by the 1st & 2nd Plaintiffs/Applicants as per the Originating Summons dated 23rd February, 2022 filed on 24th February, 2022 succeeds in its entirety and is hereby allowed with costs.
Final orders - Originating Summons allowed
That the Statement of Defence and Counter - Claim dated 24th April, 2023 by the Defendant be and is hereby found to lack merit and the same is dismissed in its entirety with costs.
p. 27Final orders - Counter-Claim dismissed
That the costs of the Originating Summons dated 23rd February, 2022 filed on 24th February, 2022 and the Counter - Claim dated 24th April, 2023 to be awarded to the 1st & 2nd Plaintiffs and borne by the Defendant herein.
p. 27Final orders - costs
Adverse possession is a doctrine of law vide which a person obtains legal title to land by reason of actual, open and continuous occupation of it to the exclusion of the registered owner for a prescribed period. In Kenya, the prescribed period is 12 years.
p. 21Doctrine of adverse possession
the Plaintiffs did satisfy the requirements to be declared in adverse possession as they have demonstrated to have been in actual possession of the land for 12 years. Their claim therefore succeeds.
Finding on adverse possession
That an order do and is hereby issued instructing the land Registrar Mombasa do hereby proceed to issue Title Documents for the portions of parcel of land occupied by the applicants from the main title known as Plot Sub – Division No. 4098 (Original No.3241/53/III/MN in the names of the Plaintiffs.
p. 27Final orders - registration of titles

Issues in the judgment

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material

The court's conclusion and disposition contradict its own analysis: paragraph 94 states the Plaintiffs 'have not established their case' yet the orders that follow allow their suit in its entirety

minor

The judgment is internally inconsistent on the date of the Malindi judgment in ELC No. 51 of 2009, variously given as 31st October 2014 and 31st October 2015, and on the year of the Defendant's alleged eviction (2017 versus 2018-2019)

minor

The Defendant's pleadings contradict themselves on when he evicted the squatters

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mangi & another v Naaman (Enviromental and Land Originating Summons E019 of 2022) [2025] KEELC 1493 (KLR)", Case Analysis (2025). ELC No. 19 of 2022 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1493/eng@2025-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.