Bakari Hussein Siwa & 47 Others v Faith Wambua & Najma Ali Ahmed
The bottom line
#A Mombasa court dismissed 48 people's land ownership claim, finding they occupied the property too recently to qualify for adverse possession.
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 Plaintiffs had made out their claim for land adverse possession
- 2.Whether the Counter-Claim by the 1st Defendant was merited
- 3.Whether the Counter-Claim by the 2nd Defendant was merited
- 4.Whether the Parties are entitled to the prayers sought
- 5.Who meets costs of the suit and Counter-Claims
Key legal issues
#Whether the Plaintiffs proved adverse possession
Claim failed; occupation found to have begun around 2017-2018, not 2006, and was contested, sporadic and interrupted
The Court found the Plaintiffs' claim of entry in 2006 uncorroborated by documentary evidence. Surveyor's reports and Google Maps imagery from 2015 showed no permanent structures. Defendants' testimony, police reports, goodwill agreements and demands for compensation showed occupation was recent, contested and interrupted, failing the nec vi, nec clam, nec precario threshold and the 12-year statutory period.
Whether the 1st Defendant's Counter-Claim was merited
Allowed; title proved, trespass established, injunction, demolition order and damages granted
The 1st Defendant produced title deeds, sale agreement and transfer documents constituting conclusive evidence of ownership under Sections 24, 25 and 26 of the Land Registration Act. The Plaintiffs produced no evidence impeaching the title. Their unauthorized entry, erection of structures and demands for compensation amounted to trespass actionable per se, warranting declarations, injunction and damages.
Whether the 2nd Defendant's Counter-Claim was merited
Allowed in full; ownership declared, trespass declared, injunction, demolition order and Kshs. 5,000,000 damages granted
The 2nd Defendant produced a sale agreement dated 28th April 2014, transfer dated 12th November 2014 and registered title, establishing indefeasible ownership. The Plaintiffs' occupation was unauthorized and contested. Trespass being actionable per se, the Court granted declarations, permanent injunction, mandatory demolition order and general damages for trespass.
Costs
Costs follow the event; Plaintiffs to bear costs of suit and Counter-Claims
Applying Section 27(1) of the Civil Procedure Act, the Court found no reason to depart from the general principle that costs follow the event, since the Plaintiffs' claim failed outright and both Defendants succeeded on their Counter-Claims.
Legal principles established
#- Adverse possession requires actual, open, continuous and exclusive occupation to the exclusion of the registered owner for twelve years, without force, secrecy or permission
- A certificate of title is prima facie and conclusive evidence of ownership, challengeable only on fraud, misrepresentation or illegality
- Trespass is actionable per se and specific damage need not be proved to recover damages
Court orders
#- 1.Judgment entered dismissing the Plaintiffs' suit as per the Originating Summons dated 13th September, 2021 in its entirety with costs
- 2.The 1st and 2nd Defendants' Counter-Claims dated 24th February, 2023 and 12th June, 2023 allowed entirely
- 3.Declaration that the 1st and 2nd Defendants are the lawful, registered and absolute proprietors of Plot No. 20948/I/MN, CR. 63882, their titles protected under the Land Registration Act
- 4.Declaration that the Plaintiffs' entry and occupation of the suit property amounts to trespass
- 5.Permanent injunction restraining the Plaintiffs, their agents, servants or persons claiming under them from entering upon, interfering with or dealing with the suit property
- 6.Mandatory order under Section 152E of the Land Act directing the Plaintiffs to demolish and remove all illegal structures within 90 days; in default the Defendants may demolish at the Plaintiffs' cost with police assistance
- 7.General damages for trespass of Kshs. 5,000,000/= awarded to each of the 1st and 2nd Defendants
- 8.Plaintiffs to bear the costs of the suit and the Counter-Claims jointly and severally
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act; Section 38 of the Limitation of Actions Act, Cap. 22
- Consolidated with
- ELC No. 204 of 2020 (O.S.)
Relief refused
#Declaration that the Plaintiffs are proprietors of 2.85 acres of the suit land by adverse possession
Occupation found to have commenced around 2017-2018, far short of the statutory 12 years, and was contested and interrupted
Registration of the Plaintiffs as owners and issuance of Certificates of Title
Flows from failure of the adverse possession claim
Costs
The Plaintiffs shall bear the costs of the suit and the 1st & 2nd Defendants' Counter-Claims jointly and severally, to be taxed and paid by the Plaintiffs.
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.
THAT Judgement be entered to the effect that the Plaintiffs' suit as per the Originating Summons dated 13th September, 2021 be and is hereby dismissed in its entirety with costs.
THAT the 1st & 2nd Defendants are each awarded general damages for trespass assessed at a sum of Kenya Shillings Five Million (Kshs. 5,000,000/=).
The Honourable Court finds that the Applicants have been in possession of the suit property only from around 2017–2018. This period falls short of the statutory twelve years required to establish adverse possession.
The Honourable Court finds that the Plaintiffs' entry and occupation of the suit property was unauthorized, contested, and unlawful.
THAT pursuant to the provision of Section 152E of the Land Act, No. 6 of 2012, a mandatory order be and is hereby issued directing the Plaintiffs to demolish and remove all illegal structures erected on the suit property WITHIN THE NEXT NINETY (90) DAYS from the date of the delivery of this Judgement.
Issues in the judgment
#Court answers the interruption question affirmatively in the Plaintiffs' favour, contradicting its own dismissal
Judgment dated 2nd October 2026 despite submissions concluding July 2025 and reservation 'to be delivered on notice'
Declaration of ownership of Plot 20948/I/MN made jointly to both Defendants though only the 2nd Defendant claims that parcel
1st Defendant's counterclaim prayer (a) contains garbled text referring to loan arrears
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakari Hussein Siwa & 47 Others v Faith Wambua & Najma Ali Ahmed", Case Analysis (2026). ELC No. 189 of 2021 (O.S.) (Consolidated with ELC No. 204 of 2020 (O.S.)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6189/eng@2026-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.