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ELCDismissedELC Mombasa Originating Summons dated 23rd March 2023 (amended 4th April 2023)· [2025] KEELC 8615 (KLR)

Niaz v Niaz & 2 others (Enviromental and Land Originating Summons E004 of 2023) [2025] KEELC 8615 (KLR)

Environment and Land Court
10 December 2025
SKS. M. Kibunja
2,472 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A grandson who lived on his family's Mombasa land with the owners' permission lost his claim to own it through adverse possession.

What this practically means

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Executive summary

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The applicant, grandson of the late Niaz Mohamed Janmohamed, sued by originating summons seeking a declaration that he is entitled to be registered as owner of five parcels known as the Nyali properties (L.R MN/1/16839 to 16843, Mainland North, Mombasa) by adverse possession since 2009, or alternatively as sole owner under the will of his late grandfather proved in Nairobi Succession Petition No. 49 of 1997, together with a permanent injunction, general damages, and special damages of Kshs. 18,934,716 for maintenance, rates, and utility payments. The respondents opposed: the 1st respondent denied any attempt to evict the applicant and claimed he paid rates up to 2019; the 2nd and 3rd respondents asserted the applicant and his father occupied the properties with permission, having promised to pay rent and vacate. The court framed two issues: whether the applicant met the adverse possession threshold, and costs. Applying Mtana Lewa and Songoi, the court held that the applicant's own case admitted permissive entry in 2009, confirmed by the respondents, which defeats adverse possession. The injunction and general damages failed for lack of any recognised legal interest; special damages failed for want of proof, the receipts being in third parties' names, including a company distinct from the applicant. The court observed the estate-distribution grievance belonged in the probate court. The suit was dismissed with costs to the respondents under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the applicant acquired title by adverse possession

Holding

The applicant failed to prove adverse possession because his entry and continued occupation of the suit properties was with the express permission of the registered proprietors.

Reasoning

The applicant's own pleadings admitted he was allowed onto the suit properties in 2009 after persistent demands. The respondents' affidavits confirmed permission, with correspondence about rent and vacant possession. Possession founded on licence or permission cannot be adverse, since it is not non-permissive, open and hostile possession for the statutory twelve-year period.

p. 5
02

Entitlement to general damages, injunction and special damages

Holding

These prayers failed because the applicant holds no legal interest in the suit properties and produced no proof that he personally paid the sums claimed.

Reasoning

The properties are registered in the 3rd respondent's name. Damages and injunction presuppose a recognised interest. Special damages required strict proof; the receipts were rates statements in the 3rd respondent's name and Kenya Power payments made in the applicant's capacity as director of a separate corporate entity, so the claims could not stand.

p. 5
03

Proper forum for grievances about administration of the deceased's estate

Holding

The applicant's real grievance — that executors disposed of properties bequeathed to him — belonged in the probate court, not dressed up as adverse possession.

Reasoning

The court observed that the applicant sought compensation for what was bequeathed to him and allegedly squandered by the executors. The probate court was the proper forum for that dispute. The ELC would only determine the adverse possession claim, not whether the estate was fully distributed to the applicant.

p. 4

Legal principles established

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  • Possession taken with the owner's permission, even if the permissive character is later contested, defeats a claim of adverse possession.
  • Costs follow the event under section 27 of the Civil Procedure Act unless the court directs otherwise on good cause.

Court orders

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  1. 1.The applicant's suit is dismissed.
  2. 2.The applicant to pay the respondents' costs.

Authorities

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Legislation

  • Limitation of Actions Actsections 7, 13, 37 and 38
  • Civil Procedure Actsection 27

Cases cited (3)

  • Mtana Lewa versus Kahindi Ngala Mwagandi
    [2015] KECA 532 (KLR)
  • Richard Wefwafwa Songoi versus Ben Munyifwa Songoi
    [2020] KECA 942 (KLR)
  • Mbira versus Gachuhi
    (2002) IEALR 137
Jurisdiction invoked
Jurisdiction of the Environment and Land Court over claims of adverse possession (Limitation of Actions Act)

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, "Niaz v Niaz & 2 others (Enviromental and Land Originating Summons E004 of 2023) [2025] KEELC 8615 (KLR)", Case Analysis (2025). ELC Mombasa Originating Summons dated 23rd March 2023 (amended 4th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8615/eng@2025-12-10

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