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ELCDismissedOriginating Summons dated 14th March 2023

Okwemba v Mullo & another (Environment and Land Case E014 of 2023) [2026] KEELC 315 (KLR)

Environment and Land Court
29 January 2026
AOA. Omollo
2,782 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Nairobi court dismissed an adverse possession claim because the claimant occupied through an agency agreement, proving you need twelve years of open, hostile possession without permission.

What this practically means

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Executive summary

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The Applicant, Carolyne Akeyo Okemba, filed an Originating Summons dated 14th March 2023 seeking declarations that her adverse possession of Maisonette No. U03 on LR No. 18111/45, Baraka Estate, Embakasi for over twelve years had extinguished the 1st and 2nd Respondents' registered title, an order for her registration as proprietor, a permanent injunction, consolidation with a related Milimani suit, and costs. She claimed she and her estranged husband purchased the property in 2010 for KES 6,300,000, took vacant possession, and rented it out, though the transfer was never registered. The Respondents denied ever selling the property, contending that in 2011 they appointed the Applicant's estranged husband, Alfrique Otieno, as their agent under a written Agency Agreement to collect rent from a tenant installed in 2012. They argued that possession was permissive and through a tenant, never exclusive or hostile, and that the Applicant's claim was an abuse of process. The court framed a single issue: whether the Applicant proved the elements of adverse possession under Sections 7 and 38 of the Limitation of Actions Act. Applying Sisto Wambugu v Kamau Njuguna and Public Trustee v Wanduru Ndegwa, the court held that possession referable to a contract or licence is not adverse, and the un-invalidated Agency Agreement meant rent collection was on the Respondents' behalf, without hostility to title. The Applicant also failed to prove twelve years' occupation, her correspondence referring only to occupation from 2018, and did not explain her nexus to the bank account that received rent. The originating summons was dismissed with half costs to the Respondents, the court finding that written submissions minimised their costs.

Questions the Court framed

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

  1. 1.Whether the Applicant has established the elements of adverse possession against the 1st and 2nd Respondents' registered title

Key legal issues

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01

Whether the Applicant proved adverse possession for over twelve years

Holding

The claim failed; occupation was not hostile and duration was not proved

Reasoning

The court found no proof that the Applicant's occupation was without the Respondents' consent, since an Agency Agreement appointed her estranged husband as agent to collect rent. The correspondence relied on referred to occupation only from 2018, insufficient to establish twelve years. The Applicant also failed to explain her nexus with the bank account used to receive rent.

p. 6
02

Whether possession under an agency agreement can ripen into adverse possession

Holding

No; rent collection under the Agency Agreement was on behalf of the Respondents, so there was no hostility to title

Reasoning

Where entry and continued occupation are with the registered owner's permission, time does not run until permission is withdrawn and a hostile claim asserted. The un-invalidated Agency Agreement meant the husband's possession was referable to a lawful relationship, not adverse to the Respondents' title.

p. 5

Legal principles established

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  • A claimant must prove open, continuous, exclusive and hostile possession for at least twelve years, without force, secrecy or permission
  • Possession referable to a contract, licence or other lawful relationship is not adverse

Court orders

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  1. 1.The originating summons is dismissed
  2. 2.The Respondents are awarded half costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AO
majority

Wrote the judgment

Jurisdiction invoked
Limitation of Actions Act, Sections 7 and 38 (adverse possession claim under Originating Summons)

Relief refused

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Declaration that the Defendants' title was extinguished by adverse possession

Applicant failed to prove open, continuous, exclusive and hostile possession for twelve years; possession was referable to the Agency Agreement

p. 6

Registration of the Applicant as proprietor of the suit property

No proof of twelve years' adverse possession; the claim failed on a balance of probabilities

p. 6

Permanent injunction restraining the Defendants

The suit was dismissed in its entirety

p. 6

Consolidation with Milimani CMCC/E822/2023

Not considered following dismissal of the suit

Costs

Respondents awarded half costs of the suit: 'I award them half costs of this suit.'

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.

It is my considered opinion that the facts and documents presented by the Applicant do not meet the threshold for a claim of adverse possession to succeed.
p. 6Failure of adverse possession claim
Consequently, I find that she has not proved her case on a balance of probabilities. The result is that the originating summons is hereby dismissed.
p. 6Final orders - dismissal
Given that the suit proceeded by way of written submissions, I find that the Respondents' costs were minimised; hence, I award them half costs of this suit.
p. 6Costs order
Such burden of proof lies on the claimant to demonstrate that the possession was without force, without secrecy, and without permission.
p. 4Burden of proof in adverse possession
possession that is referable to a contract, licence, or other lawful relationship is not adverse
p. 5Permissive possession

Issues in the judgment

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minor

Judgment cites 'Matrimonial Property Act No. 49 of 2023' - the Act is No. 49 of 2013; date appears misstated in the judgment

minor

Case citation inconsistently rendered: 'ofM'nkanata M'nanjau V Mutuamwari Njiima [2011] Kehc 2706 (Klr)'

minor

Second respondent is never separately named in the judgment, only referred to as 'the 1st and 2nd Respondents'

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, "Okwemba v Mullo & another (Environment and Land Case E014 of 2023) [2026] KEELC 315 (KLR)", Case Analysis (2026). Originating Summons dated 14th March 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/315/eng@2026-01-29

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