Adverse Possession: A Landmark Reminder for Passive Landowners

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:

• The occupation was originally permissive, grounded in a tenancy agreement.

• 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:

• The occupant must clearly repudiate or disclaim the title of the registered owner.

• 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:

• Open,

• Exclusive,

• Uninterrupted, and

• 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:

• Land-buying companies,

• Cooperatives, or

• Third-party sellers—

must ensure they take physical possession of the land immediately upon transaction completion. Failure to do so may empower:

• Squatters,

• Caretakers, or

• Former tenants

to assert claims via adverse possession. Courts have upheld such claims even where buyers:

• Paid full consideration,

• Held registered titles, but

• Never took actual possession or began development.

Legal Tip: Always demand vacant possession during handover, and substantiate possession through:

• Signed possession certificates,

• Dated photographic evidence.

2. Expired Leases or Rent-Free Occupancy = Risk Zone

When a:

• Tenant continues occupation post-lease expiry,

• License is terminated but not enforced,

• 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:

• Private Clients: Structuring family land use through revocable licences, tenancies, declarations, and succession planning.

• Real Estate Development: Ensuring legal site handovers, eviction of pre-existing occupants, and title safeguarding.

• Commercial Real Estate: Drafting enforceable leases with robust post-expiry provisions and re-entry mechanisms.

• 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?

CM Advocates LLP

Nairobi Office

I&M Bank House, 7th Floor, 2nd Ngong Avenue
📞 +254 20 2210978 / +254 716 209673
📧 law@cmadvocates.com
🌐 www.cmadvocates.com

Mombasa Office

Links Plaza, 4th Floor, Links Road, Nyali
📞 +254 041 447 0758 / +254 791 649913
📧 mombasaoffice@cmadvocates.com

Real Estate, Banking and Finance Department
📧 RBF@cmadvocates.com

Dispute Resolution Department
📧 disputeresolution@cmadvocates.com

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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.

Safeguarding Matrimonial Property Rights: Legal Options Available to Spouses in Kenya

LEGAL ALERT

Safeguarding Matrimonial Property Rights: Legal Options Available to Spouses in Kenya

At CM Advocates LLP, we understand the growing complexity surrounding property ownership within marriages and the legal disputes that can arise when matrimonial interests are not adequately secured. The Supreme Court of Kenya’s decision in Petition No. 11 of 2020 – Joseph Ombogi Ogentoto v. Martha Bosibori Ogentoto & Federation of Women Lawyers (FIDA Kenya), [2023] eKLR, emphasizes the importance of spouses taking deliberate, informed steps to protect their interests in matrimonial property.

Overview of Petition No. 11 of 2020 – Joseph Ombogi Ogentoto v. Martha Bosibori Ogentoto

This landmark case involved a dispute over property registered in the name of one spouse but allegedly acquired through joint effort. The Supreme Court upheld a 50:50 division of the property but made it clear that such division must be based on proven contribution—whether financial or non-financial—and not merely the fact of marriage. The Court held that Article 45(3) of the Constitution does not confer automatic proprietary rights. Instead, each case must be assessed based on the parties’ direct and indirect contributions, and equality means fairness, not arithmetic equivalence.

Available Legal Avenues for Protecting Matrimonial Property Rights

One of the key ways spouses can protect their rights is through joint registration of property, either as joint tenants, where both own the property equally and it passes to the surviving spouse upon death, or as tenants in common, where each owns a distinct, possibly unequal, share that can be transferred independently.

Additionally, spouses may seek a court declaration of interest under Section 17 of the Matrimonial Property Act. This enables a spouse to establish their rights over property acquired during the marriage, considering any form of contribution, including domestic work and child care.

Another powerful tool is placing a caveat or caution. Section 68 of the Land Registration Act, 2012 permits any person claiming a right to land to lodge a caution to prevent dealings on the property until the claim is resolved. Moreover, under Section 93(2) of the same Act, property acquired during marriage and registered in one spouse’s name is presumed to be held in trust for both, unless proven otherwise. Furthermore, Section 79(2) of the Land Act, 2012 stipulates that matrimonial property cannot be transferred, leased, charged, or otherwise disposed of without spousal consent, where applicable.

Using Trusts and Family-Owned Investment Vehicles for Structuring Matrimonial Property

Beyond court declarations and cautions, spouses should consider strategic ownership structures that offer better protection, privacy, and succession planning.

One such structure is a family trust, which provides a neutral and protective framework for holding matrimonial property. It is particularly useful when the couple seeks asset protection from third-party claims, seamless intergenerational transfer, ownership privacy, and flexibility to adapt to family dynamics. The trust may hold the matrimonial home and other investments, naming both spouses and their heirs as beneficiaries, thereby removing sole control and safeguarding against risks such as unilateral sale, death, or incapacity.

Another structure is the use of family-owned companies or investment vehicles, particularly for business-related matrimonial property, such as rental or commercial premises. The asset can be transferred into a family company, with shares allocated equitably between spouses and possibly held in trust or nominee structures. This not only protects legal rights but also allows for tax planning and ownership governance through formal shareholding agreements. These can include spousal veto rights, dividend arrangements, and succession provisions in line with the family’s long-term goals.

Procedure for Asserting Matrimonial Property Interests

The Matrimonial Property Rules, 2022 provide a comprehensive framework for spouses or relevant parties—such as former spouses, executors, trustees, or administrators—to file claims. Claims can be brought during marriage, during separation or divorce, or within 12 months after a final divorce decree. Jurisdiction depends on the property’s value and location, with the High Court handling high-value property cases.

Claims are filed by Originating Summons (Form MP1) and must include a sworn affidavit, a list of disputed properties, supporting documents, and a statement of contributions and reliefs sought. The courts may then issue orders for vesting or division, occupation rights, postponement of vesting, land transfers, or monetary compensation.

Why Proactive Action Matters

Failure to formally assert matrimonial property interests can lead to dire consequences, such as financial loss, eviction, or exclusion from ownership—particularly for spouses who contributed in non-monetary ways. Kenyan courts now acknowledge domestic labor, home-making, emotional support, and managing family businesses as valid forms of contribution worthy of legal protection.

Moreover, Section 12(3) of the Matrimonial Property Act prohibits the eviction of a spouse from the matrimonial home except through a court order. Section 93(3) of the Land Registration Act also requires that one spouse must obtain written consent from the other before transacting in matrimonial property. Violations can lead to cancellation of title, damages, or injunctive relief.

The Supreme Court decision in Joseph Ombogi v. Martha Ogentoto confirms that while marriage itself does not create an automatic right to half of the property, it does entitle each spouse to a fair and equitable share based on proven contribution—setting a binding precedent going forward.

CM Advocates LLP: Your Strategic Counsel for Matrimonial and Family Wealth Matters

As Kenya’s leading law firm in Private Wealth, Family Law, and Cross-Border Estate Planning, CM Advocates LLP offers a full suite of advisory and litigation services. Our expertise spans matrimonial property disputes, trust formation, family business structuring, court declarations of beneficial interest, and cross-border estate governance.

We proudly serve high-net-worth individuals, family-owned businesses, and diaspora clients seeking globally compliant, confidential, and strategic legal advice on family wealth.

Need Help Protecting Your Property Rights?

Our specialized legal team provides guidance on:

• Structuring joint ownership;

• Obtaining court declarations of beneficial interest;

• Creating and managing family trusts;

• Lodging and enforcing caveats;

• Establishing asset-holding vehicles for family businesses;

• Mediation, arbitration, and family law litigation.

Contact Us

Head Office Nairobi
I&M Bank House, 7th Floor, 2nd Ngong Avenue
T: +254 20 2210978 / +254 716 209673
E: law@cmadvocates.com

Mombasa Office
Links Plaza, 4th Floor, Links Road, Nyali
T: +254 041 447 0758 / +254 041 447 0548
C: +254 791 649913
E: mombasaoffice@cmadvocates.com

Private Wealth & Family Law Practice
📧 Email: privatewealthlawyers@cmadvocates.com
🌐 Website: www.cmadvocates.com

CM Advocates LLP – Your Strategic Legal Partner in Family Wealth, Estate Planning, and Matrimonial Property Dispute Resolution – in Kenya and Globally.

Challenging Statutory Powers of Sale: Legal Risks, Protections & Strategic Advisory

 CLIENT ADVISORY BROCHURE

July 2025

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Challenging Statutory Powers of Sale: Legal Risks, Protections & Strategic Advisory

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Overview

In Kenya's real estate finance landscape, enforcement of statutory powers of sale has become a frequent flashpoint for litigation. Chargors often challenge lenders for non-compliance with statutory notices, seek injunctions, or invoke the doctrine of lis pendens to halt property sales. These disputes have direct implications for borrowers, lenders, and third-party purchasers.

At CM Advocates LLP, we offer strategic legal guidance and representation to navigate these disputes, ensure lawful execution, and safeguard stakeholders' rights.

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Key Legal Issues

1. Statutory Power of Sale:

• Enforced under Sections 90 and 96 of the Land Act, 2012.

• Lenders must issue a 90-day notice of default and a 40-day notice of sale.

• Failure to comply can invalidate the sale.

2. Disputes on Notice Service:

• Alleged non-service of notices is a common ground for injunctions.

• Courts require strict proof of service.

• Procedural non-compliance can delay or bar recovery.

3. Doctrine of Lis Pendens:

• Applies to land under active litigation.

• Prevents transfer or sale during ongoing legal proceedings.

• However, it only applies when there is active prosecution—not merely filing.

4. Jurisdictional Clarity:

• Disputes on loan defaults, charges, and notices fall under the High Court.

• ELC handles issues related to land use, planning, and occupation.

• Filing in the wrong forum can result in dismissal.

5. Purchaser Protections:

• Section 99 of the Land Act protects innocent buyers.

• Titles acquired in good faith are secure, unless fraud is proven.

• Legal due diligence remains critical.

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How CM Advocates LLP Can Help

Lender Enforcement Support

• Drafting and service of compliant statutory notices.

• Execution of statutory power of sale.

• Auction process management and litigation defense.

Buyer and Developer Representation

• Title due diligence and compliance audits.

• Safeguarding rights of buyers acquiring charged property.

• Structuring transactions to protect against future claims.

Dispute Resolution and Jurisdiction Strategy

• Forum analysis and litigation in appropriate courts.

• Injunction defense or pursuit based on procedural posture.

• Protection of stakeholder rights in lis pendens claims.

Support for Foreign and Institutional Investors

• Structuring compliant land acquisitions.

• Tax, regulatory, and immigration advisory.

• Post-sale property and asset management.

Integrated Advisory

• Collaboration with our real estate, banking, tax, and insolvency teams.

• Seamless project support through affiliated real estate manager Property Boutique.

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Contact Our Experts

CM Advocates LLP

Head Office Nairobi
I&M Bank House, 7th Floor
2nd Ngong Avenue
P.O. Box 22588 – 00505, Nairobi, Kenya
T: +254 20 2210978 / +254 716 209673
E: law@cmadvocates.com

Mombasa Office
Links Plaza, 4th Floor
Links Road, Nyali
P.O. Box 90056 – 80100, Mombasa, Kenya
T: +254 041 447 0758 / +254 791 649913
E: mombasaoffice@cmadvocates.com

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