Matiko v Matiko (Sued as the Legal Administrator of the Estate of Boke Nyagisire – Deceased) & another (Environment and Land Case 111 of 2018) [2025] KEELC 7505 (KLR) (31 October 2025) (Judgment)

Key Facts

Issues

• Whether the Applicant has proved ownership of the suit property LR No. NYABASI/BOSONGA/1391 by way of adverse possession under the Limitation of Actions Act.
• Who should bear the costs of the suit, given the familial relationship between the Applicant and Respondents.
• Whether the Applicant is entitled to be registered as proprietor of LR No. NYABASI/BOSONGA/1391 following adverse possession claims.

Holdings

• The Applicant is not entitled to be registered as proprietor of LR No. NYABASI/BOSONGA/1391, as his claim relies solely on adverse possession, which was not proven. The 2nd Respondent's title remains valid and indefeasible under the Land Registration Act. The court rejected the Applicant's request for excision and transfer of land due to lack of legal basis.
• The court ordered that each party bear their own costs, citing the familial relationship between the parties and the nature of the dispute. This decision aligns with the principle of equitable distribution of costs in cases involving family land disputes where neither party is entirely successful.
• The court dismissed the Applicant's claim of adverse possession, determining that his occupation of the land was permissive and familial rather than hostile. The Applicant failed to establish exclusive, open, and uninterrupted possession for the required 12-year period, and his occupation was not adverse to the registered owner's interest. The court emphasized that adverse possession requires proof of hostile occupation without the owner's permission, which the Applicant did not demonstrate.

Remedies

• The Applicant's claim by way of adverse possession is hereby dismissed.
• Each party shall bear their own costs of the suit, given the familial relationship between them.

Legal Principles

• The court applied costs principles, ruling that each party should bear their own costs given the familial relationship and the outcome of the case.
• The court applied the doctrine of adverse possession, requiring open, exclusive, continuous, and hostile occupation for 12 years. The Applicant's occupation was found to be permissive and familial, not adverse. The court cited relevant cases and statutes, including the Limitation of Actions Act and Land Registration Act, to determine that the Applicant failed to meet the necessary criteria.
• The Applicant failed to discharge the burden of proof under Section 38(1) of the Limitation of Actions Act. The court emphasized that permissive and familial occupation does not satisfy the legal requirements for adverse possession.

Precedent Name

• Mtana Lewa v Kahindi Ngala Mwagandi
• Wilson Kazungu Katana & 101 Others v Salim Abdalla Balohein
• Kasuve v Mwaani Investments Ltd & 4 Others
• Benjamin Kamau & Others v Gladys Njeri

Cited Statute

• Civil Procedure Act
• Limitation of Actions Act
• Land Registration Act 2012
• Land Act 2012

Judge Name

Passage Text

• 42. Having carefully considered the pleadings, the oral and documentary evidence presented, the written submissions of the parties, and the applicable law, the Court finds that the Applicant has failed to establish ownership by way of adverse possession in respect of LR No. NYABASI/BOSONGA/1391 or any portion thereof.
• 33. The Court of Appeal in Kasuve v Mwaani Investments Ltd & 4 Others [2004] 1 KLR 184 was clear that possession can only be adverse where it is exclusive, as of right, and without permission of the owner.
• 36. In the result, this Court finds that the Applicant has failed to discharge the burden of proof required under Section 38(1) of the Limitation of Actions Act. His possession was permissive, indeterminate, and inconsistent with the statutory requirements for adverse possession.