https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4280

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY** **ELC CASE NO. E039 OF 2025** **CALEB OMONDI ABUOR (Suing as the Legal Representative of the Estate of the Late DICKSON ABUOR OPIYO) ..........PLAINTIFF** **VERSUS** **DAVID OYUGI RIWA DULO.........................................DEFENDANT** **JUDGMENT** **INTRODUCTION** 1. This suit was commenced by way of Originating Summons dated 8th July 2025. It was brought pursuant to Section 38(1) of the Limitation of Actions Act, Cap 22 Laws of Kenya and Order 37 Rule 7 of the Civil Procedure Rules. The dispute in it concerns ownership of land parcel number EAST KASIPUL/KOKWANYO/1034 through the doctrine of adverse possession. 2. In the present matter, the Plaintiff claims that the suit property originally belonged to his late father, Dickson Abuor Opiyo, and that despite the registration of the Defendant as proprietor in the year 1992, the Defendant has never taken possession of the land. The Plaintiff contends that his family has remained in uninterrupted occupation and possession of the land for several decades and has thereby acquired title thereto by adverse possession. **BRIEF FACTS** 1. The Originating Summons sought the following orders: 1. That the Applicant be declared to have become entitled by way of adverse possession to all that piece or parcel of land known as EAST KASIPUL/KOKWANYO/1034. 2. That the Sub-County Land Registrar, Kosele, be ordered to register and issue a title to the Applicant herein, Caleb Omondi Abuor, as proprietor of land parcel number EAST KASIPUL/KOKWANYO/1034 in place of the Respondent. 3. That the Respondent by himself, his relatives, agents, servants or any person acting under his instructions be permanently restrained from trespassing upon, alienating, entering, occupying, dealing with or in any way interfering with the Applicant’s quiet possession, occupation, use and enjoyment of the suit property. 4. That costs of the application be provided for. 2. The Originating Summons was premised on the grounds that parcel number EAST KASIPUL/KOKWANYO/53 was originally registered in the name of Dishon Abuor and that the name was subsequently corrected to Dickson Abuor Opiyo. The Plaintiff contended that it was later subdivided into EAST KASIPUL/KOKWANYO/1033 and EAST KASIPUL/KOKWANYO/1034. 3. The Plaintiff further contended that parcel number EAST KASIPUL/KOKWANYO/1034 was, under unclear circumstances, registered in the name of the Defendant in the year 1992 despite the continued occupation and possession of the land by the Plaintiff’s family. 4. The Plaintiff asserted that he and members of his family have been in open, peaceful, continuous, exclusive and uninterrupted possession and occupation of the entire suit property for a period well in excess of twelve years and that the Defendant has never taken any steps to assert proprietary rights over the land. 5. The Originating Summons was supported by the Affidavit of Caleb Omondi Abuor sworn on 8th July 2025. He deponed that he is the legal representative of the Estate of the late Dickson Abuor Opiyo alias Dickson Abuor who died on 16th April 1989. He annexed Letters of Administration Ad Litem marked COA 1. 6. He further deponed that the deceased was survived by Monica Achieng, Millicent Auma, Dorothy Adhiambo (deceased), Caleb Omondi, George Abuor, Lucy Achieng and Beatrice Akinyi (deceased). 7. He deponed that Dishon Abuor was registered as proprietor of land parcel number EAST KASIPUL/KOKWANYO/53 in the year 1970 and later corrected his name to Dickson Abuor Opiyo. He annexed an Application to Correct Name in the Register marked COA 2. 8. He stated that unknown to the family, parcel number EAST KASIPUL/KOKWANYO/53 was subdivided in the year 1987 into EAST KASIPUL/KOKWANYO/1033 and EAST KASIPUL/KOKWANYO/1034. He deponed further that parcel number EAST KASIPUL/KOKWANYO/1034 was registered in the name of one Laban Onyango Amba and subsequently transferred to the Defendant in 1992. He annexed a Green Card marked COA 3. 9. The Plaintiff deponed that the suit land is ancestral land on which he and his siblings were born and raised. He stated that both his parents lived on the land until their respective deaths and were buried thereon. He further deponed that neither the Defendant nor his predecessor in title had ever taken possession of the land or challenged the family’s occupation thereof. 10. He stated that he only became aware of the Defendant’s registration in 2019 when he attended a Government land titling exercise and proceeded to collect title documents at Kosele Lands Registry. He deponed that the family has no other home, has extensively developed the suit property and continues to reside thereon and cultivate it. He annexed photographs marked COA 4. 11. He therefore prayed that the Court finds that he and the Estate of the deceased have acquired title to the suit property through adverse possession. **EVIDENCE** 1. The Defendant was duly served with Summons, hearing notices and mention notices as evidenced by the Affidavits of Service on record. Despite service, he neither entered appearance nor filed a response and did not participate in the proceedings. 2. The matter proceeded for formal proof. The Plaintiff testified as PW1. He stated that he brought the suit on behalf of himself and his siblings as beneficiaries of the Estate of the late Dickson Abuor Opiyo. PW1 testified that the suit property originally belonged to his father and that he discovered in 2019 that the Defendant had become registered as proprietor of the land. 3. He testified that he was born on the suit property and that he, his siblings and other family members have occupied the land throughout their lives. He stated that there are house erected on the land and that the family cultivates crops thereon. 4. In support of his case, PW1 produced the following documents as exhibits: 1. Photographs showing developments and occupation on the suit property – P Exhibit 1(a)–(d). 2. Certified Green Card for EAST KASIPUL/KOKWANYO/1034 issued on 27th January 2020 – P Exhibit 2. 3. Application for Correction of Name in the Register – P Exhibit 3(a). 4. Statutory Declaration relating to correction of name – P Exhibit 3(b). 5. Letters of Administration Ad Litem issued in Oyugis Miscellaneous Succession Cause No. 17 of 2023 – P Exhibit 4. 5. PW1 testified further that the Defendant has never occupied the suit property and that throughout his lifetime he had never seen him residing thereon. He prayed that the Court grants the orders sought and directs that the land be registered in the name of the Estate of the deceased. 6. At the close of the Plaintiff’s and Defence cases the Plaintiff filed written submissions. 7. Briefly, he argued that based on the evidence tendered he had proved his case to the required standard. He prayed for the reliefs he sough **ISSUE, ANALYSIS AND DETERMINATION** 1. This Court has carefully considered the pleadings, the law, the oral and documentary evidence produced and the submissions filed. The Court is of the view that the issues arising for determination are: * 1. Whether the Plaintiff has locus standi to institute this suit. 2. Whether the Plaintiff has proved adverse possession over land parcel number EAST KASIPUL/KOKWANYO/1034. 3. Whether the reliefs sought should issue. 2. On the issue of locus standi, the Plaintiff produced Letters of Administration Ad Litem issued in Oyugis Miscellaneous Succession Cause No. 17 of 2023 as P Exhibit 4. The grant expressly authorized him to represent the Estate of the late Dickson Abuor Opiyo in legal proceedings. This Court is therefore satisfied that the Plaintiff possessed the requisite legal capacity to institute and prosecute this suit. 3. Turning to the second issue, the law governing adverse possession is found in Sections 7, 13, 17 and 38 of the Limitation of Actions Act. 4. **Section 7 of the Act** provides: ***“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”*** 1. **Section 13 of the Act** provides: ***(1)“ A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.*** ***(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land.*** ***(3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12 (3), the land in reversion is taken to be adverse possession of the land.”*** 1. **Section 17** provides: ***“Subject to Section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land, the title of that person to the land is extinguished.”*** 1. Under **section 38 of the Limitation of Actions Act, a** party claiming land by adverse possession may approach the court for a declaration that the property devolved to him in accordance with the doctrine. Section 38(1) of the Act states as follows; ***“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as a proprietor of the land.”*** 1. These provisions have been considered in numerous authorities. In **Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR,** the Court of Appeal stated: ***“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”*** 1. In **Muiruri v Kuria (Environment and Land Originating Summons No. 41 of 2023) [2024] KEELC 4124 (KLR) (9 May 2024),** the Court restated the principles governing adverse possession by citing the decision in **Kasuve v Mwaani Investments Ltd & 4 Others (No. 2) [2004] 1 KLR 184** as follows: ***“...and in order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of twelve (12) years either after dispossession of the owner or by the discontinuance of possession by the owner on his own volition; Wanja v Sakwa (No. 2) [1984] KLR 284. A title by adverse possession can be acquired under the Limitation of Actions Act for part of the land...”*** 1. The Court further draws guidance from **Muiruri v Kuria (Environment and Land Originating Summons No. 41 of 2023) [2024] KEELC 4124 (KLR) (9 May 2024),** wherein the Court cited the decision of the Court of Appeal in **Chevron (K) Limited v Harrison Charo Wa Shutu [2016] eKLR** and stated: ***“At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and Section 38 of the Limitation of Actions Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land. Therefore, the critical period for the determination whether possession was adverse is twelve (12) years and the burden is on the person claiming entitlement to land by adverse possession to prove not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land, and that the adverse possessor has done acts on the land which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it. See Littledale v Liverpool College (1900) 1 Ch. 19, 21.”*** 1. From the clear analysis of the evidence produced as P Exhibit 1(a)–(d), P Exhibit 2, P Exhibit 3(a), P Exhibit 3(b) and P Exhibit 4, the Court finds that the Plaintiff has proved his case on a balance of probabilities. The Green Card produced as P Exhibit 2 demonstrates that the Defendant became registered proprietor of the suit property in 1992. 2. The evidence of PW1, which remained wholly unchallenged and uncontroverted, establishes that the Plaintiff’s family was already in occupation of the suit property before that registration and has remained in occupation ever since. 3. The photographs produced as PExhibit 1(a)–(d) demonstrate actual occupation, residential developments and long-standing possession of the land. PW1 testified that his parents resided on the land until their deaths and were buried thereon. He further testified that he and his siblings have continuously occupied and cultivated the land to date. 4. The Court notes that there was absolutely no evidence that the Defendant ever entered into possession of the suit property, established residence thereon, cultivated it, developed it or asserted proprietary rights over it. Equally, there was no evidence that the Defendant ever instituted proceedings for recovery of the land or otherwise interrupted the Plaintiff’s occupation. 5. The Court has further considered whether the Plaintiff’s representative capacity affects the claim for adverse possession. The Court finds that it does not. The evidence demonstrates that possession commenced during the lifetime of the deceased and continued uninterrupted through his beneficiaries after his death in 1989. The law permits successive periods of possession by persons claiming through a common predecessor to be aggregated where continuity of occupation is demonstrated. The Plaintiff does not seek to assert adverse possession against the Estate of his father. Rather, he seeks recognition of the fact that the Estate and its beneficiaries remained in continuous possession while the Defendant remained out of possession for more than the statutory period. 6. The Defendant’s title accrued in 1992. This suit was instituted in 2025. By the time these proceedings were commenced, more than thirty-three years had elapsed. Consequently, the Defendant’s right to recover the suit property had long been extinguished by operation of **Sections 7** and **17** of the **Limitation of Actions Act.** 7. The Court is satisfied that the Plaintiff’s possession and that of his predecessors was open, peaceful, notorious, continuous, uninterrupted and exclusive. The Plaintiff has therefore established all the elements necessary to sustain a claim for adverse possession. The upshot is that the Plaintiff has proved his case on a balance of probabilities. 8. This Court therefore enters judgment for the Plaintiff against the Defendant as follows: 1. **A declaration be and is hereby issued that the Plaintiff, on behalf of the Estate of the late Dickson Abuor Opiyo, has acquired title to land parcel number EAST KASIPUL/KOKWANYO/1034 by adverse possession.** 2. **The Defendant’s title and proprietary interest in land parcel number EAST KASIPUL/KOKWANYO/1034 are hereby declared extinguished pursuant to Sections 7 and 17 of the Limitation of Actions Act.** 3. **The Land Registrar, Kosele sub Land Registry is hereby directed to cancel the Defendant’s registration and register the Plaintiff, the legal representative of the Estate of the late Dickson Abuor Opiyo, as proprietor of land parcel number EAST KASIPUL/KOKWANYO/1034 for and in trust for the Estate/family of the late Dickson Abuor Opiyo.** 4. **A permanent injunction is hereby issued restraining the Defendant, his servants, agents, relatives or any person claiming under him from entering upon, trespassing onto, alienating, transferring, charging, leasing, interfering with or in any manner whatsoever disturbing the Plaintiff’s quiet possession and occupation of the suit property.** 5. **There shall be no order as to costs.** 9. Orders accordingly. Judgment dated, signed and delivered virtually via the Teams Platform this 9th day of July 2026. Hon. Dr. iur Nyagaka Judge In the presence of, Achillah for the Plaintiff/ Applicant No appearance for Respondents