Mukhwana & 34 others v Ortum Talc Limited & another (Enviromental and Land Originating Summons 40 of 2020) [2025] KEELC 5603 (KLR)
The bottom line
#The Environment and Land Court in Kitale declared that long-term occupants of Kitale land owned the land through 12 years of adverse possession, defeating the registered companies.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd Respondent has locus standi
- 2.Whether the 2nd Defendant could recover the land after twelve years of non-occupation
- 3.Whether the Applicants have acquired possession of land parcel Number 2116/841 within Kitale Municipality by way of adverse possession
- 4.Who to bear the costs of the suit
Key legal issues
#Whether the 2nd Respondent (Skyview Investment Limited) had locus standi to defend the suit through its deponent
The 2nd Respondent lacked locus standi because it failed to produce a valid company resolution authorising its deponent; its defence was of no value.
Order 4 Rule 4 of the Civil Procedure Rules and the authorities require a party suing or being sued in a representative capacity to state how the capacity arises. Section 262 of the Companies Act requires a written resolution passed at a properly called meeting. The document relied on was a mere letter signed by an individual describing himself as sole director, not sealed nor emanating from the company, and the witness conceded no resolution existed. The distinction between a sole proprietorship and a company per Salomon v Salomon applies.
Whether the Applicants acquired their respective portions of LR No. 2116/841 by adverse possession
Yes. The Applicants proved occupation since 2002 (over twelve years), open, peaceful, continuous and without the owner's permission; their title was acquired by adverse possession.
Applying sections 7, 13 and 38 of the Limitation of Actions Act and Mtana Lewa, the court found the affidavits and testimony proved long, open, continuous and exclusive occupation; homes and fences were erected; the chief's letters corroborated possession. No evidence of the owner's permission or of interruption was tendered; the registered owner never entered appearance after substituted service. The possession remained uncontroverted and cogent.
Whether the 2nd Defendant could recover the land notwithstanding any alleged purchase
No. Even if it proved ownership, the Plaintiffs' occupation exceeded twelve years, extinguishing any title it had.
The witness conceded there was no agreement evidencing the alleged 1990 purchase and the transfer was incomplete, with the land still registered to Ortum Talc Limited. In any event, sections 7, 13 and 17 of the Limitation of Actions Act extinguish title after twelve years of adverse possession, so no recovery was possible.
Legal principles established
#- A person suing a company must produce a written resolution of the company, made upon a meeting duly called, to authorise a deponent to swear affidavits and plead on its behalf; a mere letter signed by an individual director is not a company resolution.
- Where an unauthorised deponent's authority is challenged, the burden lies on the company to demonstrate with evidence that the deponent was duly authorised.
- Where possession has run for the statutory twelve years without the registered owner's permission and without interruption, the registered owner's title is extinguished and the adverse possessor becomes entitled to be registered.
Court orders
#- 1.A declaration that the Applicants, except the 10th, 18th and 28th Applicants, have acquired title over land parcel Number 2116/841 within Kitale Municipality by way of adverse possession and are entitled to be registered forthwith as owners, upon conducting a survey at their own cost to ascertain the exact measurements and positions to be entered in the mutation form
- 2.The Deputy Registrar of the Court to forthwith sign the respective instruments of subdivision and transfer to each of the parties accordingly, upon the land being surveyed at the cost of the respective parties and the specific sizes of each of the adverse possessors being ascertained
- 3.The successful Plaintiffs to have the costs of the Originating Summons as against the Defendants
- 4.The suits of the 18th and 28th Applicants marked as withdrawn with costs to the 1st Respondent
- 5.The suit of the 10th Applicant marked as abated following his demise without substitution
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act conferring jurisdiction on the High Court (Environment and Land Court) for declarations of adverse possession
Relief refused
#Adverse possession claim of the 18th and 28th Applicants
They withdrew their suits during the hearing
Adverse possession claim of the 10th Applicant (Joshua Oriek Ondiek)
He died in the course of the proceedings and was not substituted before the lapse of twelve months, so his suit abated
Costs
The successful Plaintiffs to have the costs of the Originating Summons as against the Defendants; the suits of the 18th and 28th Applicants withdrawn with costs to the 1st Respondent
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 declaration be and is hereby made that the Applicants, except those I have acquired excluded, have acquired title over land parcel Number 2116/841 within Kitale Municipality by way of adverse possession, and they are entitled to be registered forthwith as owners
The successful Plaintifis shall have the costs of the Originating Summons as against the Defendants.
The Deputy Registrar of this Court shall forthwith sign the respective instruments of subdivision and transfer to each of the parties accordingly, upon the land being surveyed at the cost of the respective parties
Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve [12] years.
The 2nd respondent therefore lacks locus standi in this suit and any defence it raised was of no value against the claim by the Plaintifis.
Issues in the judgment
#The judgment states 'three issues arise for determination' but then lists four issues
The judgment elsewhere records the Applicants' entry as around 2002, but the analysis states they swore affidavits that they entered 'in the year 2000 or thereabout'
Internal inconsistencies in the pleadings as recorded: several Applicants' pleaded acreages differ between the schedule and their prayers (e.g. Martin Nyongesa 0.26 hectares claimed as 0.06 hectares; 32nd Applicant named 'Samwel Chesoli Bushuru' though that name belongs to the 20th Applicant; 10th Applicant named 'Joshua Oriek Ondiek' in schedule but 'Charles Omondi Bitoyo' in evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukhwana & 34 others v Ortum Talc Limited & another (Enviromental and Land Originating Summons 40 of 2020) [2025] KEELC 5603 (KLR)", Case Analysis (2025). Originating Summons dated 18th March 2020 (filed 2nd July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5603/eng@2025-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.