Omar (Suing as the Personal Representative of the Estate of Omar Marwa Adan) v Mwita & 2 others (Enviromental and Land Originating Summons E008 of 2020) [2025] KEELC 6474 (KLR)
The bottom line
#The Environment and Land Court in Migori dismissed an adverse possession claim because the claimant's occupation was permissive and repeatedly interrupted by lawsuits.
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 Plaintiff has acquired ownership of the suit land by way of adverse possession
Key legal issues
#Whether the Plaintiff acquired title to 2.3 ha of parcel Bukira/Buhirimonono/341 by adverse possession
The claim failed; the Plaintiff did not prove actual, open, notorious, exclusive and uninterrupted adverse occupation for over 12 years, nor occupation against the registered owner
The suit land remained registered in the name of Noreri Chacha, not the defendants. Any occupation by the Plaintiff's family was permissive, arising from redemption on behalf of Noreri (presumption of advancement). The multiplicity of suits over the parcel dislodged continuity and quietness of possession. The Plaintiff, a co-administrator of the registered owner's estate, could not claim adversely against that estate. No corroborative evidence such as surveyor's report or photographs was produced.
Whether the adverse possession claim could lie against the defendants who were not registered owners
It could not; the claim was a nonstarter against non-owners
The court found the title had never been registered in the defendants' names. Since adverse possession operates to extinguish the title of the registered proprietor, the claim could not be sustained against persons who held no title to the suit land.
Effect of the alleged sale and redemption transactions
Any sale by a non-registered owner was void under Section 3(2) of the Law of Contract Act and the family 'agreement' on the land's fate was void
Noreri Chacha, the registered owner, never signed the 1985 agreement. A sale by Augustine Mwita Magori, who was not the registered proprietor, could not pass title, and thus the purported redemption from Nchagwa Sabai conferred no ownership. The proper course upon Noreri's presumed death under Section 118A of the Evidence Act was succession proceedings, not family redistribution.
Legal principles established
#- Possession under permission or by virtue of presumption of advancement cannot found a claim of adverse possession
- Litigation over suit property during the alleged period amounts to interruption of occupation for adverse possession purposes
- A sale of registered land by a person other than the registered owner without written contract contravenes Section 3(2) of the Law of Contract Act and passes no title
Court orders
#- 1.The Originating Summons is dismissed in its entirety for lack of merit
- 2.The Plaintiff shall bear the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Section 38 of the Limitation of Actions Act (claim for declaration of title by adverse possession)
Relief refused
#Declaration that the Plaintiff is owner of 2.3 ha of land parcel Bukira/Buhirimonono/314 by adverse possession
Plaintiff failed to prove open, notorious, exclusive and uninterrupted adverse occupation for over 12 years; occupation was permissive and litigated against throughout
Order directing County Surveyor and Land Registrar Kuria to demarcate the parcel and register it in the Plaintiff's name
Follows failure of the adverse possession claim
Costs of the suit against the Defendants
Court ordered the Plaintiff to bear his own costs of the dismissed suit
Costs
The Plaintiff shall bear the costs of the suit
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.
In the premises, the Originating Summons fails in its entirety for lack of merit. The Plaintifi shall bear the costs of the suit.
For one to claim adverse possession he should not have been permitted by the owner to be on the land.
Litigation over said property amounts to interruption of occupation.
the parties whom the Plaintifi sued were not and had never been owners of the suit land hence the Plaintifi’s claim of adverse possession cannot be successfully sustained against them
then under Section 3(2) of the Law of Contract Act, the sale was illegal and void. It could not pass title to the purported buyer
Issues in the judgment
#Judgment refers inconsistently to the suit parcel as Bukira/buhirimonono/314 and Bukira/buihrimonono/341, and witnesses/defendants also give differing numbers (parcel No. 64, 34)
Judgment states the parties did not know 'whether there was a case' but also states the court found no re-entry while finding litigation interrupted the possession - internal tension in paragraph 88
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar (Suing as the Personal Representative of the Estate of Omar Marwa Adan) v Mwita & 2 others (Enviromental and Land Originating Summons E008 of 2020) [2025] KEELC 6474 (KLR)", Case Analysis (2025). ELC OS No. E008 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6474/eng@2025-09-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.