Adverse Possession: A Landmark Reminder for Passive Landowners
Court of Appeal Clarifies Legal Thresholds in Mwalimu & 6 Others v Halal & Another [2025] KECA 1186 (KLR)
Case Overview
On 4th July 2025, the Court of Appeal delivered a significant judgment dismissing an appeal lodged by seven members of the Mwalimu family. The appellants were seeking to acquire Plot No. Mombasa Island Block XV/31 by way of adverse possession. The family had long occupied the land and operated a motor garage under a tenancy initially created between their late father, Fadhili Mwalimu, and the former registered landowner.
Their claim was premised on the fact that they had remained on the land continuously and openly for over 30 years without remitting rent. Based on this occupation, they argued they had gained proprietary rights through adverse possession.
However, both the Environment and Land Court (ELC) and the Court of Appeal held that:
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The occupation was originally permissive, grounded in a tenancy agreement.
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The duration of hostile occupation fell short of the 12-year requirement under Section 7 of the Limitation of Actions Act.
In conclusion, the courts found no legal foundation to invalidate the title of the current registered owner, ruling that the Mwalimu family’s continued presence did not satisfy the statutory criteria for adverse possession.
Key Legal Principles
1. Permissive Occupation ≠ Adverse Possession
The Court reaffirmed the critical principle that possession which begins under a tenancy, lease, or license is deemed permissive and does not constitute adverse possession. For such possession to evolve into adverse possession:
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The occupant must clearly repudiate or disclaim the title of the registered owner.
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The possession must be uninterrupted and hostile for a minimum of 12 years.
In this case, hostility arguably began in 2002, following a rent demand. However, since the suit was filed in 2010—only 8 years later—it failed to meet the legal threshold.
2. Fraud Allegations Are Incompatible with Adverse Possession
The appellants also asserted that the registered title had been fraudulently acquired. The Court emphasized that it is legally inconsistent for a party to challenge the validity of a title while simultaneously claiming rights by adverse possession. These two arguments are mutually exclusive and cannot coexist in the same legal action.
3. Informal or Familial Occupation Can Mature into Adverse Possession
Importantly, the judgment acknowledged that even family members, caretakers, or long-term undocumented occupants can successfully claim adverse possession—if their occupation becomes:
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Open,
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Exclusive,
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Uninterrupted, and
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Hostile to the title holder’s interests for at least 12 years.
Even unwritten licenses or informal familial arrangements can eventually crystalize into ownership rights if not revoked or formalized in due time.
Extended Practical Lessons for Landowners, Buyers & Developers
1. Buyers Must Take Actual Possession Promptly
Purchasers—especially those acquiring land through:
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Land-buying companies,
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Cooperatives, or
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Third-party sellers—
must ensure they take physical possession of the land immediately upon transaction completion. Failure to do so may empower:
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Squatters,
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Caretakers, or
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Former tenants
to assert claims via adverse possession. Courts have upheld such claims even where buyers:
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Paid full consideration,
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Held registered titles, but
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Never took actual possession or began development.
Legal Tip: Always demand vacant possession during handover, and substantiate possession through:
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Signed possession certificates,
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Dated photographic evidence.
2. Expired Leases or Rent-Free Occupancy = Risk Zone
When a:
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Tenant continues occupation post-lease expiry,
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License is terminated but not enforced,
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Occupant ceases rent payments and the owner remains inactive,
the clock may begin ticking toward adverse possession. Uncontested, such long-term occupation—even by a former tenant—can legally mature into ownership once the 12-year period lapses.
How CM Advocates LLP Can Help Protect Your Land
CM Advocates LLP offers tailored legal strategies to assist property owners, landlords, and developers in mitigating and responding to adverse possession risks.
Where a buyer fails to take possession, we issue legal notices, initiate possession protocols, and where necessary, commence eviction proceedings. If a tenant overstays without paying rent, we enforce the lease, facilitate re-entry, and seek court-ordered evictions. For family members or caretakers occupying land, we draft and enforce license agreements, issue revocation notices, and lodge protective land entries. In instances of informal occupation on project sites, we undertake pre-development land clearance and conduct occupation audits. If adverse possession is suspected, we file land recovery suits, lodge restrictions or cautions against the title, and pursue injunctive relief through the courts.
Practice Area Integration
This case highlights the critical need for multidisciplinary legal responses, which CM Advocates LLP provides through the following specialist teams:
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Private Clients: Structuring family land use through revocable licences, tenancies, declarations, and succession planning.
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Real Estate Development: Ensuring legal site handovers, eviction of pre-existing occupants, and title safeguarding.
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Commercial Real Estate: Drafting enforceable leases with robust post-expiry provisions and re-entry mechanisms.
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Litigation & Dispute Resolution: Swift court action for land recovery and injunctions where possession rights are contested.
Final Word
“The law does not protect the idle. If you own land, act like it.”
This landmark judgment serves as a stark reminder to landowners: title registration alone is not enough. Allowing others to remain on your land—be they tenants, relatives, or informal occupants—without documentation, follow-up, or repossession action can eventually empower them to claim ownership.
Need Help Preventing or Responding to Adverse Possession Claims?
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Prepared by the Real Estate, Banking & Finance, and Litigation Practice Groups at CM Advocates LLP – Your Legal Safeguard for Land Ownership Across Kenya.