Kjaer v Hellback & another (Land Originating Summons E032 of 2024) [2026] KEELC 3318 (KLR)
The bottom line
#A Nairobi court dismissed a landowner's adverse possession claim because she could not prove she had occupied the disputed land openly for the required twelve years.
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 proved her claim of adverse possession over the portion measuring approximately 0.053 Ha to be hived off LR No. 192/39
- 2.Who should bear the costs of the suit
Key legal issues
#Whether the Plaintiff proved adverse possession over 0.053 Ha of LR No. 192/39
Claim failed; occupation was only adverse from about 2018, giving six years by filing, and the exact date of entry was not proved
The court adopted the Court of Appeal tenets that possession must be nec vi, nec clam, nec precario and exclusive, open and uninterrupted for 12 years. PW1's own testimony fixed the cottage and cabro works at 2018, contradicting her claim of entry in 2004. A connecting gate suggested permissive use, and a boundary dispute existed. The burden on a trespasser claiming adverse possession was held to be higher, and it was not discharged.
When time began running for limitation purposes
Time began running in 2018 when the Plaintiff began dealing with the land adversely, and stopped on filing in 2024
Cross-examination established that the cottage was built in 2018, guests stayed in 2019 and the cabro was laid in 2018, contradicting the pleaded 2004 entry. The court found the 2004 claim implausible. Since limitation runs from the date of adverse entry which must be proved, only about six years had elapsed when the suit was filed in 2024, short of the twelve years required under Section 7 of the Limitation of Actions Act.
Legal principles established
#- Time in adverse possession runs from the date of adverse entry, which must be precisely pleaded and proved; possession under licence or with the owner's permission does not count
Court orders
#- 1.The Plaintiff's Originating Summons is dismissed
- 2.Costs of the suit are awarded to the Defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Sections 7 and 38 of the Limitation of Actions Act (claim for adverse possession by Originating Summons)
Relief refused
#Declaration that the Defendants' title to 0.053 Ha of LR No. 192/39 was extinguished by adverse possession
Plaintiff failed to prove exact date of entry and 12 years' adverse possession had not crystallized
Orders for registration of the Plaintiff as proprietor/lessee of 0.053 Ha of LR No. 192/39, survey, and execution of transfer instruments
The substantive adverse possession claim failed, so ancillary reliefs fell with it
Costs
Costs of the suit awarded to the Defendants
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.
Based on the evidence as presented in court while associating myself with the decisions cited above, I find that even if the Plaintiff had built on the disputed portion as claimed, her claim for adverse possession had not crystallized by the time she filed the instant suit.
It is against the foregoing that I find the Plaintiff has not proved her case on a balance of probability and will dismiss it with costs to the Defendants.
In the circumstances, I find that the Plaintiff has not has proved her claim of adverse possession over the portion measuring approximately 0.053 Ha to be hived off LR No. 192/39.
The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner.
Issues in the judgment
#Internal inconsistency in the Plaintiff's pleaded date of entry: pleadings and submissions say occupation began in 2001 and 2004 respectively while the affidavit says 2004
Typographical errors in the judgment, including a misnamed parcel number in the 1st Defendant's cross-examination record and repeated phrasing in the disposition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kjaer v Hellback & another (Land Originating Summons E032 of 2024) [2026] KEELC 3318 (KLR)", Case Analysis (2026). ELC LC NO. E032 OF 2024 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3318/eng@2026-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.