When the Kwale lands court conducted a site visit to a 10-acre parcel in Diani on February 28, 2025, the judge was looking for signs of decades-old occupation by four families as claimed in a case before him.
The families of Mohamed Mambo, Juma Kimbirwa, Suleiman Mwalali and Mwinyi Juma Bugu had claimed that at the time property developers started putting up luxury villas on the land, they had occupied it for between 20 and 40 years.
By the time of the site visit, all the original plaintiffs had died, and their children – Halima Mambo, Kadiri Juma Kimbirwa, Nasoro Juma Mwalali and Mahmoud Mwinyi Mwabugu – had taken their parents’ place in the case.
The four families sued Richard Livingstone Hawkins, John Edward Leslie, Orbit Developments Ltd, Bhupinder Singh Knowle and Gur Bux Singh Nagi in 2006.
While they maintained that the 10-acre property was their ancestral land, in court they wanted to be recognised as owners through the doctrine of adverse possession.
Adverse possession exists in law to protect squatters’ rights, by granting them legal ownership of land they have occupied uninterrupted for 12 years.
The Kekes claimed to have lived on the land for 40 years, while the Bugii family said it had occupied its plot for 25 years. The Mambos claimed 20 years, and the Kimbirwas 18 years.
The four families said they had houses, livestock and graves on the land at the time the defendants started construction.
During the court’s February, 2025 site visit, there was no tangible evidence of earlier occupation of the land before the developers started putting up the villas.
In the end, the court noted that the story presented by the four families had too many gaps. While they claimed to have occupied the land for between 18 and 40 years, none of them stated when exactly they settled on the property.
The court dismissed the 20-year-old case, in a move that has further defined the evidence test in adverse possession claims.
The families sued in 2006. Two years later, they were directed to serve the court papers through substituted service, which usually includes newspaper advertisements.
In 2009 the court delivered judgment in favour of the four families as there was no response.
In March, 2010, the defendant filed an application seeking to set aside that decision, arguing that they were not aware of the case’s existence. The court allowed that application. The case then dragged on in what the court said was unnecessary delays.
The four families have filed a notice of appeal against the High Court decision.
They have also filed an application seeking to block any development on, sale, transfer or any interference with the land pending their appeal. That application is still pending determination.
The court noted that during the site visit, that there were no breadcrumbs which could lead to a conclusion that the land had been occupied prior to the developers starting construction.
‘Indeed, from the site visit conducted by the Court apart from a few indigenous trees, there were no such evidence such as debris of the demolished structures, ploughed land, livestock yards/paddocks or mature, graveyards (taking that all the Plaintiffs are now deceased) and so forth no it,’ the court said in its judgment dismissing the claim by the four families.
‘In fact, the graves that the plaintiff seem to claim to have used to bury their parents were nowhere to be seen as documented by the Court during the site visit,’ the judgment further reads.
Lawyers for the four families had claimed that there were graves on the land, where various deceased kin from multiple generations had been buried.
But the defendants maintained that they had purchased the land and attached title deeds and documents demonstrating their acquisition process.
They also argued that the four families had not indicated when they settled on the land, to enable computation of the 12 years occupation contemplated in Kenyan law for adverse possession to kick in.
Orbit Developments Ltd held that other neighbours had filed affidavits in court stating that the defendants were the only ones who had ever been seen taking possession of the 10-acre land.
The plaintiffs claimed that they were born and raised on the land, and had lived on it for years but did not produce birth certificates or identity cards which would indicate their place of birth.
None of the plaintiffs was able to point out exactly where on the property their homes stood.
‘There was no evidence of birth such as certificate or identity cards, letters from the location Chief; or proof and evidence of their neighbours. By any standards, having lived on a parcel of land for this period there ought to have been certain tangible traces of that. None of them indicated where they were currently living on the land by the time of tendering their evidence,’ the court noted.
The four families did not explain how they left the land, as none of them had claimed to have been evicted.
‘From the evidence, the plaintiffs were aware that the suit land were legally registered to the owners. Subsequently, they registered caution against the land but which were removed by the Land Registrar. Despite of the removal of the caution, the registered proprietors of the land never forcefully evicted the plaintiffs from the land. They vacated it freely and voluntarily,’ the judgment reads in part.