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ELCPartially AllowedNot disclosed in the judgment (transferred from the High Court; suit instituted 26 April 2012)· [2026] KEELC 1635 (KLR)

Kiptalam & another v Nabiswa (Environment and Land Case 597 of 2014) [2026] KEELC 1635 (KLR)

Environment and Land Court
11 March 2026
3,301 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner with a registered title evicted a long-squatting occupant because 12 years of adverse possession had not yet accrued and the occupant offered no evidence.

What this practically means

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Executive summary

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The plaintiffs, joint registered proprietors of land parcel No. Kakamega/Soy/479, sued for the defendant's eviction, exhumation of a body buried on the land, a permanent injunction and costs, alleging that the defendant trespassed onto the property in 2006 and constructed structures without any colour of right. The defendant, whose occupation was said to have been allocated two acres by his late father (the 1st plaintiff's late husband), defended the suit and counterclaimed for a declaration that the plaintiffs' rights over two acres were extinguished by adverse possession, a permanent injunction, subdivision and transfer. The defence failed to attend the hearing on 17th June 2025 and its case was closed without any evidence; only the plaintiffs testified and filed submissions. The court held that the plaintiffs' registered title was unchallenged and protected by the indefeasibility provisions of the Land Registration Act, and that adverse possession under Sections 7, 13, 17 and 38 of the Limitation of Actions Act required twelve years of open, exclusive, adverse and continuous occupation without permission. Since the defendant entered in 2006, the limitation period had not run by 2012 when the suit was filed, and with no defence evidence the counterclaim remained mere allegations. The prayer for exhumation was declined for want of pleading and evidence. Judgment was entered for the plaintiffs: the defendant was given 90 days to vacate, failing which eviction orders would issue; a permanent injunction was issued to take effect after the lapse of 90 days; and costs were awarded to the plaintiffs, borne by the defendant.

Key legal issues

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01

Whether the defendant's occupation was justified by adverse possession

Holding

No. The defendant gave no evidence, and the plaintiffs demonstrated entry in 2006, so the 12-year limitation period had not run by 2012 when the suit was filed.

Reasoning

The court set out the statutory scheme under Sections 7, 13, 17 and 38 of the Limitation of Actions Act and the requirement of non-permissive, actual, open, notorious, exclusive and adverse possession for twelve years. It found entry occurred in 2006, so limitation could not have run before the suit was filed in 2012. With no defence evidence, the counterclaim remained unproved allegations.

p. 6
02

Whether the plaintiffs, as registered proprietors, are entitled to eviction and a permanent injunction

Holding

Yes. The plaintiffs' title is unchallenged and protected under Sections 24 and 25 of the Land Registration Act, entitling them to quiet enjoyment.

Reasoning

Section 26 of the Land Registration Act renders the certificate of title conclusive evidence of proprietorship, challengeable only on fraud, misrepresentation or illegal or corrupt acquisition. The defendant did not impugn the plaintiffs' title. Sections 24 and 25 confer absolute ownership free from other interests, so the plaintiffs deserve the eviction and injunction orders sought in the amended plaint.

p. 6
03

Whether the prayer for exhumation should be granted

Holding

No. Nothing was pleaded or proved regarding the deceased buried on the suit property.

Reasoning

Although the amended plaint sought exhumation of the body of the late Salome Inyangala Nabiswa, no pleading identified the deceased or the circumstances of the burial, and no evidence was presented. Applying the rule that he who alleges must prove, the court declined that head of relief.

p. 7

Legal principles established

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  • Registration of land vests absolute and indefeasible rights in the owner unless acquisition is shown to have been through fraud, misrepresentation, want of proper procedure, illegality or corruption
  • Adverse possession requires open, exclusive, adverse and continuous occupation for 12 years without the owner's permission, and a defendant who adduces no evidence leaves his defence and counterclaim as mere allegations

Court orders

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  1. 1.The defendant is ordered to vacate parcel No. Kakamega/Soy/479 in 90 days of this judgment and in default, eviction orders to issue
  2. 2.A permanent injunction is issued restraining the defendant from entering land parcel No. Kakamega/Soy/479, taking effect upon the lapse of 90 days from the date of the judgment
  3. 3.The costs of the suit are awarded to the plaintiffs and shall be borne by the defendant
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (suit instituted in the High Court on 26th April 2012 and thereafter transferred to this court)

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, "Kiptalam & another v Nabiswa (Environment and Land Case 597 of 2014) [2026] KEELC 1635 (KLR)", Case Analysis (2026). Not disclosed in the judgment (transferred from the High Court; suit instituted 26 April 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1635/eng@2026-03-11

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