Lekakeny v Maito & 2 others (Environment and Land Case E009 of 2023) [2026] KEELC 4945 (KLR)
The bottom line
#Occupying land under a mistaken boundary belief doesn't start the 12-year adverse possession clock in Kenya until the mistake is discovered.
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's suit is merited
- 2.Whether the defendant's defence and counter-claim should be upheld
- 3.What reliefs ought to issue
- 4.Who bears the costs of this suit
Key legal issues
#Whether the plaintiff proved trespass by the defendants onto LR. Transmara/Moita/522
Yes - the plaintiff proved trespass on a balance of probability through his title, testimony, and the Land Registrar's and Surveyor's reports confirming encroachment and that the disputed 4 acres form part of parcel 522.
The plaintiff established registered ownership of the 4.45 Ha parcel and produced his title, the vendor's title, and official searches. The Land Registrar and Government Surveyor independently inspected the ground and found the plaintiff occupying less acreage than registered while the defendants occupied more, with the 4-acre disputed area forming part of parcel 522. This satisfied the burden of proof under sections 107 to 109 of the Evidence Act, establishing infringement of the plaintiff's proprietary rights.
Whether the defendants acquired the disputed 4 acres by adverse possession
No - the defendants' occupation was under a mistaken belief that the 4 acres belonged to them, so time for adverse possession did not begin to run until the mistake was discovered; the 12-year period has not crystallised.
Entry and occupation of the 4 acres followed a mistake of fact as to the boundary/extent of the parcels purchased. Applying section 26(c) of the Limitation of Actions Act as interpreted in Alba Petroleum Limited v Total Marketing Kenya Limited, limitation does not begin to run against a claim for relief from the consequences of a mistake until the mistake is discovered or could with reasonable diligence have been discovered. The mistake was discovered only when the Land Registrar and Surveyor visited pursuant to court orders after this suit was filed, so 12 years had not elapsed.
What reliefs ought to issue
Judgment entered in favour of the plaintiff as sought in the Amended Plaint; the defence and counterclaim are unmerited.
Having found the plaintiff's claim proven and the adverse possession defence inapplicable, the court answered issues 1 and 2 together in the plaintiff's favour and entered judgment as prayed in the Amended Plaint, which included declarations of ownership and trespass, eviction, permanent injunction, and general damages for trespass. The counterclaim for rectification and adverse possession failed with the defence.
Legal principles established
#- Occupation of land under a mistake of fact does not commence time for adverse possession; time runs only from discovery of the mistake under section 26(c) of the Limitation of Actions Act.
- Section 26(c) of the Limitation of Actions Act does not specify which party must have committed the mistake; time begins to run when the mistake is discovered.
- Registration confers on a registered proprietor all rights and privileges appurtenant under sections 24-26 of the Land Registration Act, provable through title and official reports.
Court orders
#- 1.Judgment entered in favour of the plaintiff as sought in the Amended Plaint
- 2.Defendants' defence and counter-claim dismissed/unmerited
- 3.Each party to bear its own costs
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 over disputes relating to title to land, trespass and adverse possession (Article 162(2)(b) of the Constitution implied by the court's setting; not expressly cited in the judgment)
Relief refused
#All counterclaim reliefs (declaration of error in the register, declaration that the 4 acres belong to Transmara/Moita/487, rectification of the register, and declarations/order for adverse possession)
The court found the defence of adverse possession inapplicable because occupation was under a mistake of fact, and section 26(c) of the Limitation of Actions Act postpones the start of time until the mistake is discovered; the 12-year period had not crystallised
Costs
The court directs each party to bear its own costs, noting the parties are neighbours.
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.
due to the mistake of fact, time did not run for purposes of adverse possession, time only started running once the mistake was discovered.
section 26(c) of the Limitation of Actions Act does not specify which party must have committed the mistake, it suffices that the court is satisfied a mistake of fact or law exists, and time begins to run when the mistake is discovered.
the court finds on a balance of probability that the plaintiff has proven trespass by the Defendants on the suit property in view of his testimony, that of his witness and the documentary evidence produced herein, and that he satisfied the burden of proof under sections 107 to 109 of the Evidence Act.
the court having found the plaintiff's claim to be merited, and accordingly judgment is entered in favour of the plaintiff as sought for in the Amended Plaint.
The court notes that the parties herein are neighbours and therefore directs each party to bear its own costs.
Issues in the judgment
#The judgment identifies the 3rd Defendant's parcel as 'Transmara/Moita/437' in the analysis, contradicting the consistent reference elsewhere to 'Transmara/Moita/487'.
Exhibit numbering is inconsistent: the Land Registrar and Surveyor reports were produced as PMFI.1 and PMFI.2 (later P.Exhibit 8 and P.Exhibit 7), but paragraph 58 refers to 'P.Exhibit 6 and P.Exhibit 7'.
The disposition does not separately itemise the orders granted; it enters judgment 'as sought for in the Amended Plaint', which would include general damages for trespass, without an express assessment of quantum.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lekakeny v Maito & 2 others (Environment and Land Case E009 of 2023) [2026] KEELC 4945 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4945/eng@2026-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.