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ELCDismissedKakamega MC E&L No. 987 of 2018 (consolidated with Kakamega MC E&L No. 988 of 2018)· [2025] KEELC 3800 (KLR)

Mufoyongo & another v Shivachi & 3 others (Environment & Land Case 96 of 2019) [2025] KEELC 3800 (KLR)

Environment and Land Court
15 May 2025
1,807 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a family land claim because the claimants proved neither 12 years of open possession nor a valid case against a deceased owner's estate.

What this practically means

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Executive summary

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Two Originating Summons filed on 9th October 2018 in Kakamega MC E&L Nos. 987 and 988 of 2018 were transferred to the Environment and Land Court and consolidated. The Plaintiffs claimed title to Isukha/Shirere/1XX6 and Isukha/Shirere/1XX4 by adverse possession. One plaintiff was substituted after death, and the amended OS was heard by oral evidence; the claim against the Third Defendant was dismissed for want of service. The court framed three issues: locus standi of the First and Second Defendants, establishment of adverse possession, and availability of reliefs. Holding on locus standi, the court found the registered proprietors of Isukha/Shirere/1XX6 (Elijah Kwame and Jeremiah Shivachi) are deceased and the defendants are not personal representatives of their estates; following Trouistik Union and Rugiri, the claim against them was null and void for want of locus standi. On adverse possession, the First Plaintiff admitted he was not in occupation of the parcel and did not know when the defendants' family began using it; the Plaintiffs failed to prove the date, nature and openness of possession for 12 years. Regarding Isukha/Shirere/1XX4, the register showed Kakamega County Council as proprietor; under Articles 62 and 176 of the Constitution the parcel is public land vested in the county government, which Section 41 of the Limitation of Actions Act shields from adverse possession. The court dismissed the Plaintiffs' case and, given the family relationship between the parties, made no order as to costs.

Key legal issues

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01

Whether the First and Second Defendants had locus standi

Holding

The case against them was null and void as they are not personal representatives of the deceased registered proprietors

Reasoning

The registered proprietors of Isukha/Shirere/1XX6, Elijah Kwame and Jeremiah Shivachi, are deceased. The Plaintiffs neither pleaded nor proved that the defendants were administrators or personal representatives, and the defendants denied being so. Following Trouistik Union and Rugiri, a suit concerning a deceased's estate without a grant is null and void for want of locus standi.

p. 3
02

Whether adverse possession was established over Isukha/Shirere/1XX6

Holding

Not established; the Plaintiffs admitted they were not in occupation

Reasoning

The First Plaintiff testified he was born, brought up and resides at Muhonje, was not in occupation of the parcel, and did not know when the defendants' family began using it. Possession is a key ingredient and the Plaintiffs failed to demonstrate the date, nature and openness of possession for 12 years.

p. 4
03

Whether adverse possession lies against the Fourth Defendant over Isukha/Shirere/1XX4

Holding

No; the parcel is public land vested in the county government

Reasoning

The register shows Kakamega County Council, predecessor of the Fourth Defendant, as registered proprietor. Under Article 176 the Fourth Defendant is a county government, and under Article 62 the parcel is public land, which Section 41 of the Limitation of Actions Act shields from adverse possession.

p. 4

Legal principles established

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  • A suit relating to a deceased's estate filed without a grant of representation is null and void for want of locus standi
  • Public land is precluded from acquisition by adverse possession under Section 41 of the Limitation of Actions Act
  • An adverse possession claimant must prove the date, nature and openness of possession for the statutory 12 years

Court orders

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  1. 1.The Plaintiffs' case is dismissed
  2. 2.No order as to costs in view of the family relationship between the parties
  3. 3.No order on costs in respect of the earlier dismissal of the case against the Third Defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (transferred from the subordinate court and consolidated)

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, "Mufoyongo & another v Shivachi & 3 others (Environment & Land Case 96 of 2019) [2025] KEELC 3800 (KLR)", Case Analysis (2025). Kakamega MC E&L No. 987 of 2018 (consolidated with Kakamega MC E&L No. 988 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3800/eng@2025-05-15

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