Kirao & 106 others v Kassamjee (Environment and Land Case 55 of 2020) [2026] KEELC 3410 (KLR)
The bottom line
#The Environment and Land Court dismissed 107 people's adverse possession claim over Malindi land and ordered them evicted within three months.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant holds absolute ownership of the suit property
The defendant proved registered ownership of the 50.07 acres through an Indenture dated 17 June 1992 and a Certificate of Postal Search; his title is prima facie valid and protected by Article 40 of the Constitution and Section 26(1)(b) of the Land Registration Act.
The defendant produced defence Exhibits 1 and 2 evidencing registered title acquired in 1992 and demonstrated lawful acquisition. The plaintiffs' attacks on the root of title (vendor's identity, lack of sale agreement, proof of payment) were rejected because the plaintiffs themselves possessed no title and did not call evidence. The court held the root of the defendant's title was not in dispute as against titleless plaintiffs, who were found to be trespassers.
Whether the plaintiffs are entitled to adverse possession
No. The plaintiffs failed to prove continuous occupation for over 12 years or identify the exact portions each occupied, both essential to adverse possession; they also withdrew their originating summons.
Relying on Mtana Lewa v Kahindi Ngala Mwagandi, the court reiterated that adverse possession requires 12 years of open, continuous possession adverse to the owner, not by force, stealth or licence. The plaintiffs never offered evidence of the specific portion each of the 107 persons occupies or when they settled; the defendant reported invasions to the Chief, Police and NLC from 2013, showing no acquiescence. The plaintiffs' withdrawal of the OS left the counterclaim unchallenged.
Standard of proof and scrutiny where a party files only a defence without calling evidence
The court agreed with both sides that mere denial is insufficient and that the court must still scrutinise the testimony, pleadings and documents; applying these principles, the defendant discharged his burden on a balance of probabilities.
The court adopted Nyukuri v Omochar, citing Raghbir Singh Chatte, that a general traverse is not an effective defence. It also accepted the plaintiffs' authorities (Mutangili v Registrar of Titles; Moi v Muriithi) that a court retains a duty to scrutinise unchallenged testimony and assess probabilities. On scrutiny, the defendant's documentary evidence of title and reports of the invasion outweighed the plaintiffs' unsubstantiated defence to the counterclaim.
Legal principles established
#- Adverse possession in Kenya requires 12 years of possession that is neither by force, stealth nor licence, adequate in continuity, publicity and extent
- A registered proprietor's title is prima facie protected under Article 40 of the Constitution and Section 26(1)(b) of the Land Registration Act
- A mere denial or general traverse in defence is not sufficient; a party who does not call evidence but files mere denial leaves the opposing case unchallenged
Court orders
#- 1.An order for vacant possession of the portion of land illegally occupied by the plaintiffs, measuring approximately 4 acres, within Plot No. 220 Malindi
- 2.An order of eviction against the plaintiffs, their servants, employees, agents and any other person claiming through them, from the suit property, including demolition of all their illegal structures and buildings on the occupied portion
- 3.A grace period of 3 months from the date of judgment for the plaintiffs to vacate voluntarily, failing which forced eviction shall ensue
- 4.The defendant is awarded the costs of the suit and interest thereon at court rates
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over the suit property (adverse possession claim and counterclaim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirao & 106 others v Kassamjee (Environment and Land Case 55 of 2020) [2026] KEELC 3410 (KLR)", Case Analysis (2026). Originating Summons re Plot No. 220-Malindi; LT:37, Folio: 225, File: 3403. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3410/eng@2026-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.