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ELCAllowedELCLOS/E001/2024

Issack v Basheik & another (Enviromental and Land Originating Summons E001 of 2024) [2025] KEELC 5550 (KLR)

Environment and Land Court of Kenya
25 July 2025
5,771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, Abdhul Mohamed Issack, brought an Amended Originating Summons dated 18th/19th January 2024 against Abdulrahman Mohamed Basheik and Mahamud Abdalla Mandahry under Sections 17, 37 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, seeking a declaration that the defendants' title to Plot No. 382 (approx. 12 acres) was extinguished as to 2 acres by adverse possession, an order that he be registered as proprietor of that portion, and costs. The defendants, served by substituted means after leave granted on 31st January 2024, never entered appearance or filed a defence, and the matter proceeded to formal proof. The plaintiff testified on 13th November 2024 that he had occupied 2 acres of the Kiembeni land since 2011, farming crops and rearing livestock without interruption. The court, through a Deputy Registrar's site visit report, noted cultivation, livestock, a caretaker's structure and a house under construction. Framing three issues, the court held that uncontroverted evidence at formal proof still must satisfy the burden of proof on a balance of probabilities, and found the plaintiff had proved open, continuous, exclusive, non-permissive possession exceeding the statutory 12 years, extinguishing the defendants' title to the 2 acres. Judgment was entered in terms of the Amended Originating Summons in its entirety, with an order that the Land Registrar at Mombasa register the 2-acre portion in the plaintiff's name absolutely, and the plaintiff was awarded costs. Judgment was delivered virtually at Mombasa on 25th July 2025 by L.L. Naikuni J.

Questions the Court framed

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

  1. 1.Whether or not the Plaintiff has acquired title to the suit land by operation of the doctrine of adverse possession
  2. 2.Whether the Plaintiff is entitled to the orders sought in the Plaint
  3. 3.Who bears the costs of the suit

Key legal issues

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01

Whether the Plaintiff acquired title by adverse possession

Holding

Yes - the Plaintiff proved open, continuous, uninterrupted and exclusive possession of 2 acres from 2011, exceeding 12 years before filing suit in 2024.

Reasoning

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.

p. 10
02

Whether the Plaintiff is entitled to the orders sought

Holding

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.

Reasoning

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.

p. 11
03

Who bears the costs of the suit

Holding

Costs follow the event; the successful Plaintiff is awarded costs.

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.Judgment entered in favour of the Plaintiff in terms of the Amended Originating Summons dated 19th January, 2024 in its entirety
  2. 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. 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. 4.Land Registrar at Mombasa to register a portion of 2 acres in the name of the Plaintiff absolutely
  5. 5.Plaintiff awarded costs of the Amended Originating Summons dated 19th January, 2024

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 of Kenya 2010, Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of Actions Act

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.

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.
p. 12Final orders - judgment for plaintiff
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
p. 12Extinction of registered title by 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)
p. 5Elements of adverse possession
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.
p. 5Burden of proof at formal proof
Therefore, their claim succeeds.
p. 11Finding on adverse possession

Issues in the judgment

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minor

Judgment inconsistently frames the issues: para 10 refers to four issues, para 21 states there are three issues while only three are listed.

minor

Date of delivery of judgment conflicts internally: para 9 reserves judgment for 25th November, 2025 while the disposition records delivery on 25th July 2025.

minor

Plaintiff's gender is inconsistently referred to: the judgment at one point refers to the plaintiff as 'she' and elsewhere as 'he'.

minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.