Issack v Basheik & another (Enviromental and Land Originating Summons E001 of 2024) [2025] KEELC 5550 (KLR)
The bottom line
#A Mombasa court awarded a man ownership of 2 acres he had openly farmed since 2011, proving land can be legally acquired through long, uncontested occupation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the Plaintiff has acquired title to the suit land by operation of the doctrine of adverse possession
- 2.Whether the Plaintiff is entitled to the orders sought in the Plaint
- 3.Who bears the costs of the suit
Key legal issues
#Whether the Plaintiff acquired title by adverse possession
Yes - the Plaintiff proved open, continuous, uninterrupted and exclusive possession of 2 acres from 2011, exceeding 12 years before filing suit in 2024.
The court applied Sections 7, 13, 17, 37 and 38 of the Limitation of Actions Act and the elements in Gabriel Mbui v Mukindia Maranya. The Plaintiff occupied since 2011, farming and rearing livestock, without interruption by the registered owners. The site visit corroborated occupation. Possession was adequate in continuity, publicity and extent, and adverse to the registered owner.
Whether the Plaintiff is entitled to the orders sought
Yes - the claim succeeds and judgment is entered in terms of the Amended Originating Summons, including registration of 2 acres in the Plaintiff's name.
The court found adequate possession in continuity, publicity and extent, adverse to the registered owner. Because defendants never appeared despite proper substituted service, the plaintiff's evidence stood unchallenged, but the court still required proof on a balance of probabilities, which it found discharged.
Who bears the costs of the suit
Costs follow the event; the successful Plaintiff is awarded costs.
Relying on Section 27(1) of the Civil Procedure Act and case law, the court held that the successful party is typically entitled to costs absent compelling reasons, and the Plaintiff having established his case receives the costs of the Amended Originating Summons.
Legal principles established
#- In a formal proof hearing, uncontroverted evidence does not automatically relieve the plaintiff of the burden of proving the case on a balance of probabilities.
- A claimant seeking title by adverse possession must prove actual, open, continuous, exclusive and non-permissive possession for the statutory period of 12 years.
Court orders
#- 1.Judgment entered in favour of the Plaintiff in terms of the Amended Originating Summons dated 19th January, 2024 in its entirety
- 2.Declaration that the defendants' title No. Plot 382 CR.2532 is extinguished to the extent of 2 acres in favour of the Plaintiff by way of adverse possession
- 3.Plaintiff entitled to be registered forthwith as owner of 2 acres of Plot No. 382 SEC.II MN AS CR.2532 held on adverse possession since 2011
- 4.Land Registrar at Mombasa to register a portion of 2 acres in the name of the Plaintiff absolutely
- 5.Plaintiff awarded costs of the Amended Originating Summons dated 19th January, 2024
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of Actions Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a. That Judgment be and is hereby entered in favour of the Plaintifi in terms of the Amended Originating Summons dated 19th January, 2024 in its entirety.
That a declaration do and is hereby issued that the defendants, title No. Plot 382 CR.2532 has been extinguished to the extent of the 2 acres in favour of the Plaintifi by way of adverse possession
the Plaintifis have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion)
It is not automatic that (in) instances where the evidence is not controverted the Claimant shall have his way in Court. He must discharge the burden of proof.
Therefore, their claim succeeds.
Issues in the judgment
#Judgment inconsistently frames the issues: para 10 refers to four issues, para 21 states there are three issues while only three are listed.
Date of delivery of judgment conflicts internally: para 9 reserves judgment for 25th November, 2025 while the disposition records delivery on 25th July 2025.
Plaintiff's gender is inconsistently referred to: the judgment at one point refers to the plaintiff as 'she' and elsewhere as 'he'.
The suit property description varies across the judgment (Plot 382 CR.2532, CR.2532/1, SEC.II MN AS CR.2532, SEC II MB AS CR.2532).
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Warui v Karuu (Environment and Land Appeal E024 of 2023) [2026] KEELC 4168 (KLR)[2026] KEELC 4168 (KLR)8 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Issack v Basheik & another (Enviromental and Land Originating Summons E001 of 2024) [2025] KEELC 5550 (KLR)", Case Analysis (2025). ELCLOS/E001/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5550/eng@2025-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.