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ELCDismissedVIHIGA ELCLA NO. E002 OF 2025

Savini & another v Mugala & another (Environment and Land Appeal E002 of 2025) [2026] KEELC 3598 (KLR)

Environment and Land Court
11 June 2026
4,008 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a 12-year adverse possession land claim because the family couldn't prove exclusive occupation for the full period.

What this practically means

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Executive summary

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This is a first appeal from the judgment of the Kakamega Chief Magistrate's Court in CMC E & L Case No. E130 of 2022, delivered on 30 September 2024, in which the Appellants, as administrators of the estate of Sabini Lubwa, sought declarations of adverse possession over land parcel ISUKHA/KAMBIRI/519, cancellation of the Respondents' title and transfer of the land to themselves. The Respondents, as legal representatives of the estate of Joseph J. Mugalla, denied the claim and counterclaimed for eviction and a permanent injunction. The trial court dismissed the Appellants' suit and allowed the counterclaim. E. Asati J, rehearing the appeal under the Selle principle, found that the Appellants failed to prove exclusive, peaceful and continuous possession exceeding 12 years: from registration of the land in Mugalla's name on 19.12.1995 to Sabini Lubwa's death on 2.6.2006, the statutory period had not elapsed, and there was no evidence of the Appellants' occupation before 2020. The court held that an adverse possession claim cannot rest on title pleaded as irregularly acquired, noted the trial court's lack of jurisdiction under section 38 of the Limitation of Actions Act over such claims, and found the alleged contradictions in the Respondents' evidence immaterial. Ground 4 of the appeal was abandoned. The court affirmed the trial judgment, dismissed the appeal and awarded costs to the Respondents.

Questions the Court framed

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

  1. 1.Whether the Appellants proved their claim of adverse possession to the required standard
  2. 2.Whether the trial court erred in failing to take into account alleged contradictions in the Respondents' evidence
  3. 3.Whether the trial court erred in finding that the Respondents took possession of the suit land at the time of purchase
  4. 4.Whether the counterclaim was proved and whether the appeal should be dismissed

Key legal issues

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01

Standard of proof for adverse possession

Holding

The Appellants needed to prove exclusive, peaceful, actual and continuous possession exceeding 12 years and failed to do so

Reasoning

The court applied the balance of probabilities standard and the elements of adverse possession from Mtana Lewa. The green card showed registration on 19.12.1995 and Sabini Lubwa died on 2.6.2006, so even on the Appellants' own case the possession could not exceed 10–11 years. Evidence of occupation before 2020 was lacking, with no surveyor's or agriculture officer's report or photographs.

p. 11
02

Procedural mode of commencing adverse possession claims

Holding

Although section 38 of the Limitation of Actions Act and Order 37 require an Originating Summons, commencing by plaint is not fatal per Chevron (K) Ltd vs Harrison Charo Wa Shutu

Reasoning

The court noted there was no explanation for the wrong procedure but held, following superior court authority, that the lapse was not fatal. However, it separately found the trial court lacked jurisdiction under section 38 to entertain such claims, which the Respondents had raised.

p. 10
03

Effect of pleading irregular acquisition without seeking relief on that basis

Holding

The alleged contradictions and irregularity did not undermine the Respondents' registered title or credibility

Reasoning

The suit did not challenge the registration of the land in Joseph J. Mugalla's name; although irregular transfer was pleaded, no relief was sought on that basis. The green card confirmed the charge and transfer, and the alleged contradictions were not shown to materially affect the credibility of DW1 and DW2's evidence.

p. 16
04

Sanctity of registered title

Holding

The Respondents, as registered proprietors under Kakamega H.C. Succession Cause No. 193 of 2025, are entitled to constitutional and statutory protection of title

Reasoning

The court invoked Article 40 of the Constitution and sections 24, 25 and 26 of the Land Registration Act protecting the sanctity of title. Grounds for cancellation of title were not proved, and the counterclaim for eviction and permanent injunction was properly allowed by the trial court.

p. 16

Legal principles established

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  • A claim of adverse possession cannot be based on title that the claimant pleads was irregularly acquired
  • The trial magistrate's court lacks jurisdiction under section 38 of the Limitation of Actions Act to entertain claims of adverse possession
  • On a first appeal, the court is not bound by the findings of the trial court and must re-analyse the evidence

Court orders

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  1. 1.Appeal is dismissed
  2. 2.Costs are awarded to the Respondents

The bench

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

majority

Wrote the judgment

On appeal from
Kakamega Chief Magistrate's Court (CMC E & L Case No. E130 of 2022)
Kakamega CMC E & L CASE NO. E130 OF 2022
Jurisdiction invoked
First appellate jurisdiction under the Environment and Land Court Act over an appeal from the Chief Magistrate's Court

Relief refused

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Declaration of adverse possession, cancellation of the Respondents' title and transfer of the suit land to the Appellants

Adverse possession was not proved; the statutory 12-year period had not elapsed and the claimants failed to prove exclusive possession

p. 14

Prayer to set aside the judgment allowing the Respondents' counterclaim (eviction and permanent injunction)

The Appellants were not in possession and the Respondents as registered owners are entitled to vacant possession

p. 17

Costs

Costs are awarded to the Respondents.

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.

I find that the appeal lacks merit and the upshot is that: i. Appeal is dismissed. ii. Costs are awarded to the Respondents.
p. 17Final orders - dismissal of appeal
A claim of adverse possession cannot be based on title that the claimant pleads was irregularly acquired.
p. 14Adverse possession - irregular title
From 19.12.1995 when the land was registered in the name of Joseph J. Mugalla to 2.6.2006 when Sabini Lubwa died, the statutory period of 12 years had not elapsed.
p. 14Limitation period not met
the court in which the claim was filed did not have jurisdiction under the provisions of section 38 of the Limitation of Actions Act to entertain claims of adverse possession.
p. 14Jurisdiction of subordinate court over adverse possession claims
I find that the trial court did not err in dismissing the appellants' claim and in allowing the counterclaim. I find no reason to interfere with the findings and decision of the trial court.
p. 17Affirmance of trial court judgment

Issues in the judgment

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minor

Internal inconsistency in transmission dates: the judgment states the green card shows transmission on 3.11.2021 but the plaint relief refers to title issued to the Defendants on 3.11.2022

minor

Succession cause number inconsistently cited as No. 193 of 2015 in the pleadings and No. 193 of 2025 in the judgment's findings

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, "Savini & another v Mugala & another (Environment and Land Appeal E002 of 2025) [2026] KEELC 3598 (KLR)", Case Analysis (2026). VIHIGA ELCLA NO. E002 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3598/eng@2026-06-11

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