Adoyo v Midianga & 3 others

**IN THE REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY** **ENVIRONMENT AND LAND CASE NO. E054 OF 2025 (OS)** **IN THE MATTER OF AN APPLICATION FOR ADVERSE POSSESSION UNDER ORDER 37 RULE 7 OF THE CIVIL PROCEDURE RULES, 2010** **AND** **IN THE MATTER OF SECTIONS 7, 13, 17 AND 38 OF THE LIMITATION OF ACTIONS ACT, CAP. 22 LAWS OF KENYA** **BETWEEN** **GORDON OTIENO ADOYO...............................................APPLICANT** **VERSUS** **HELLEN OSWAGO MIDIANGA** **JOSEPH OTIENO MIDIANGA** **ELIJAH ODHIAMBO MIDIANGA** **WALTER NYAMONGO MIDIANGA..............................RESPONDENTS** **JUDGMENT** **INTRODUCTION** 1. This suit was commenced by way of Originating Summons dated 19th August 2025. It was brought pursuant to Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act. The dispute concerns a portion measuring approximately three (3) acres comprised in land parcel number KANYAMWA/KABONYO KWANDIKO/2139. The Applicant claims to have acquired it by way of adverse possession. 2. The Applicant’s case, in substance, is that on 3rd November 1995 he purchased a portion measuring approximately three acres from the late Charles Midianga Ndira. The seller was, then, the proprietor of land parcel number KANYAMWA/KABONYO KWANDIKO/552, at an agreed consideration of KShs. 22,500/=. He alleges to have paid it in full. He states that immediately thereafter he entered into possession of the portion, cultivated it and subsequently exercised acts of ownership over it, including leasing it to third parties. 3. The Applicant states further that the original parcel number 552 was subsequently subdivided into parcels numbers KANYAMWA/KABONYO KWANDIKO/2138 and 2139, with parcel number 2139 remaining registered in the name of the late Charles Midianga Ndira. It is the Applicant’s contention that notwithstanding the subdivision, and the subsequent death of the said Charles Midianga Ndira, his occupation and use of the portion claimed by him continued openly and without interruption. 4. The Applicant states that following the death of Charles Midianga Ndira, the Respondents obtained a grant of letters of administration in respect of his Estate and caused the suit parcel to be registered in their respective names. The Applicant’s complaint is that although he had been in occupation and use of the portion claimed since 1995, the land was never formally transferred to him. **BRIEF FACTS** 1. The Applicant seeks, principally, a declaration that he has acquired three acres of land parcel number KANYAMWA/KABONYO KWANDIKO/2139 by adverse possession, and entitled to be registered as proprietor thereof. He seeks further an order compelling the Respondents to transfer the portion to him and, in default, an order authorising the Deputy Registrar of this Court to execute the necessary instruments of transfer. He also seeks an injunction restraining the Respondents from entering upon, wasting, damaging or alienating the suit property and an order for costs. 2. The Originating Summons is supported by the Applicant’s affidavit sworn on 19th August 2025. The Applicant annexed, among other documents, the agreement for sale dated 3rd November 1995, an agricultural officer’s crop report and photographs, a lease agreement, and a certified copy of the register and certificate of official search relating to the suit property. 3. The Respondents were duly served with the Originating Summons and a hearing notice. They did not enter appearance, file a response or participate in the proceedings. Consequently, the matter proceeded by way of formal proof. **EVIDENCE** 1. The Applicant testified as PW1. He stated that he is a farmer. Further, he is the person who instituted the present proceedings. He adopted his affidavit as his evidence in chief and produced the documents annexed thereto in support of his case. 2. The Applicant then testified that on 3rd November 1995 he purchased approximately three acres from Charles Midianga Ndira for Kshs.22,500/=. He stated that the purchase price was paid in full upon execution of the agreement and he immediately took possession of the portion purchased. 3. The Applicant testified that he used the land for farming, particularly the cultivation of sugarcane. Subsequently, he leased portions of it to other persons. He relied on the agricultural report and photographs as evidence of the use and development of the land. 4. The Applicant further testified further that the original parcel number 552 was subdivided, and the portion upon which he had entered and continued to occupy became parcel number KANYAMWA/KABONYO KWANDIKO/2139. He maintained that he continued to occupy and use the said portion notwithstanding the failure to formally transfer the land into his name. 5. The Applicant stated that the original proprietor died without transferring the portion to him and that thereafter the Respondents, as persons claiming through the deceased’s estate, caused the suit property to be registered in their respective names. 6. In support of his claim, the Applicant produced in evidence the documents contained in his affidavit and List of documents. The documents were tendered and produced as exhibits as follows: 1. PExhibit 1 – Certified copy of the Register for land parcel No. KANYAMWA/KABONYO KWANDIKO/2139. 2. PExhibit 2 – Certificate of Official Search for land parcel No. KANYAMWA/KABONYO KWANDIKO/2139. 3. PExhibit 3 – Agreement for Sale dated 3rd November 1995 between Charles Midianga Ndira and Gordon Otieno Adoyo. 4. PExhibit 4 – Lease Agreement relating to the portion of land claimed by the Applicant. 5. PExhibit 5 – Report by the Sub-County Agricultural Officer dated 18th December 2024 together with the photographs depicting the agricultural activities on the land. 6. PExhibit 6 – Photographs of the portion of land claimed by the Applicant. The said exhibits constitute the documentary evidence upon which the Applicant principally relies in support of his claim. The Court has considered each of the exhibits alongside the oral testimony of PW1 and the pleadings and submissions on record. 1. At the close of the Applicant’s evidence, the Plaintiff prayed also for the close of the Respondent’s case since it . There being no appearance or evidence on behalf of the Respondents, the defence case was closed. The Applicant thereafter filed written submissions. **ISSUES, ANALYSIS AND DETERMINATION** 1. Having considered the Originating Summons, the supporting affidavit, the evidence tendered, the exhibits produced and the Applicant’s written submissions, the issues arising for determination are: 1. Whether the Applicant has proved his claim for adverse possession of approximately three (3) acres of land parcel number KANYAMWA/KABONYO KWANDIKO/2139; 2. Who should bear the costs of the suit. 2. This Court now proceeds to determine the suit based on the issues in sequence. The starting point is the understanding of the legal basis for a claim for adverse possession. 3. **Section 7** of the **Limitation of Actions Act** is couched in the following terms:- “***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. The **Act** makes a further provision for adverse possession in case of nonrecovery of land, under **Section 13**, as follows:- ***“(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 a fresh 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. Under **Section 38** of the **Limitation of Actions Act**, a party claiming land by adverse possession may approach the Court for such the relief, that he be registered as proprietor in place of the person then registered as proprietor. Section 38(1) provides 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. Thus, under **Section 7** an action to recover land may not be brought after the expiry of twelve years from the date when the right of action accrued. Accrual of such an action begins when the adverse possessor enters into possession of the land without the permission of the owner, and with the intention of asserting ownership. Section 13 recognises the concept of possession in favour of a person against whom the period of limitation can run, while Section 17 provides for the extinguishment of the title of the proprietor upon expiry of the prescribed limitation period. Section 38 provides the mechanism by which a person claiming to have become entitled to registered land by adverse possession may move court that he be registered as proprietor in place of the owner. 2. The provisions above have been expounded in a number of authorities. The first authority that guides this Court is the *locus classicus* of **Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR,** wherein 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. Therefore, for a claim of adverse possession to succeed, certain conditions must be fulfilled. The same Court, in **Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR** stated as follows:- ***“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 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 12 years and the burden is on the person claiming to be entitled to the 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, 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. The Court must, however, bear in mind that not every period of physical occupation of another person’s land constitutes adverse possession. The critical question is the character of the possession. Possession which is by consent, licence or pursuant to a subsisting contractual relationship does not, merely because its lengthy (of more than the stipulated time or period) become adverse. Also, if the nature of occupation is such that it is hostile or not peaceful or quiet, I will not yield adverse possession. 2. This above distinction is particularly important in the present case because the Applicant’s own evidence establishes that his entry onto the land was pursuant to an agreement for sale dated 3rd November 1995. His possession was therefore not that of a stranger who entered upon the land without authority. He entered the land as a purchaser. 3. The Court therefore does not accept, without qualification, the submission that the Applicant’s possession automatically became adverse six months after the execution of the sale agreement merely because Land Control Board consent was not obtained. The question is not simply when the agreement became incapable of enforcement as a contract. The Court must determine, from the evidence, when the Applicant’s possession acquired the quality of being adverse to the title of the proprietor. It can only start from when the buyer ceased to be on the land with the permission of the owner. Such period begins when the conditions of purchase are fulfilled by the buyer, or when the buyer breaches the agreement and yet continues to occupy the land unless both the buyer and seller agree expressly on a new term of permission to reside thereon. 4. In the present case, however, the evidence goes beyond the mere existence of an incomplete sale transaction. The Applicant’s evidence is that the entire purchase price was paid on the date of the agreement, he immediately took possession, and the vendor never thereafter resumed possession of the portion sold to him or took steps to recover it. 5. The agreement for sale produced in evidence shows that the vendor acknowledged receipt of KShs. 22,500/= from the Applicant upon execution of the agreement. The agreement further identifies the portion sold as measuring approximately three acres. There is therefore documentary evidence supporting the Applicant’s assertion that he paid the agreed consideration and entered into possession pursuant to the transaction. 6. From the clear analysis of the evidence produced as exhibits, namely PExhibit 1, the Certified Copy of the Register for land parcel No. KANYAMWA/KABONYO KWANDIKO/2139; PExhibit 2, the Certificate of Official Search for the said parcel; PExhibit 3, the Sale Agreement dated 3rd November 1995; PExhibit 4, the Lease Agreement; PExhibit 5, the Report by the Sub-County Agricultural Officer dated 18th December 2024; and PExhibit 6, the photographs of the suit property, together with the oral testimony of PW1, it is clear, and the Court finds, that the Applicant adduced evidence demonstrating his entry upon, occupation and use of the portion claimed by him. He also demonstrated that the permission of the owner ceased when he completed payment of the purchase price, which was upon execution of the agreement. 7. The documentary evidence herein, considered alongside the uncontroverted testimony of PW1, is material in determining the nature and continuity of the Applicant’s possession. The sale agreement establishes the circumstances of his entry and the consideration paid; the agricultural report and photographs demonstrate actual use and occupation; the lease agreement demonstrates acts of control and dealing with the land while the register and official search establish the registered proprietorship of the suit parcel and its subdivision history. The Court has therefore considered the documentary evidence cumulatively rather than in isolation to arrive at the conclusion below. 8. The Court finds that the Applicant’s initial entry was pursuant to the sale agreement and therefore permissive. But upon full payment of the purchase price and continued possession without the completion of the contemplated transfer, the entry ceased to be permissive anymore hence the circumstances became capable of giving rise to adverse possession. In the particular circumstances of this case, the Applicant’s possession had, at the latest, become adverse sufficiently long before the institution of these proceedings. The procurement or otherwise of the land control board was immaterial in the circumstances of the case. 9. The next question is whether the Applicant has proved the nature and continuity of his possession. The evidence before the Court is that the Applicant entered the land in 1995 and immediately commenced cultivation. The agricultural report produced in evidence describes a three-acre farm under sugarcane cultivation and records that the farm was well managed. Photographs were also produced to demonstrate the agricultural use of the land. 10. The Applicant’s evidence was further that he subsequently leased the land to third parties. A lease agreement produced in evidence identifies the Applicant’s daughter, Flora Achieng’ Otieno, as the person dealing with the land as lessor and identifies a third party as lessee. Although the documentary record contains certain inconsistencies regarding the precise description of the parcel and the identity of persons appearing in the lease documents, the evidence nonetheless demonstrates conduct consistent with a person exercising dominion and control over the portion claimed. 11. Leasing of land is, in appropriate circumstances, a significant act or demonstration of possession as it shows who is in control of the land: it is he who leases the land, and not the registered owner. Simply put, it demonstrates that the person in occupation is not merely physically present upon the land but is exercising rights of control and use over it. In the present case, the Applicant’s evidence of cultivation, occupation and subsequent leasing, taken together, supports the conclusion that his possession was actual and substantial. 12. The Applicant’s possession was also open and notorious. There is no evidence before the Court that he occupied the land secretly. On the contrary, the evidence demonstrates cultivation and agricultural activities that would ordinarily be visible to the registered proprietor and to members of the surrounding community. 13. The Applicant’s possession was further exclusive in the sense relevant to adverse possession. His evidence is that he exercised control over the three-acre portion, cultivated it and dealt with it as his own. There is no evidence that the deceased proprietor continued to cultivate, occupy or otherwise exercise possession over the same portion after the Applicant’s entry. 14. There is equally no evidence that the deceased proprietor instituted proceedings against the Applicant, demanded possession from him, obtained an order for his eviction, or otherwise effectively interrupted his possession during the period between 1995 and the death of the proprietor. 15. The Respondents, having failed to enter appearance or participate in the proceedings, despite service of Summons, did not place before the Court any evidence contradicting the Applicant’s account of his occupation. Their failure to participate does not relieve the Applicant of the burden of proof. Nevertheless, where credible documentary and oral evidence remains unchallenged, the Court is entitled to assess it and determine the weight to attach to it. 16. The Court has carefully considered the certified copy of the register and the certificate of official search. The search indicates that parcel number KANYAMWA/KABONYO KWANDIKO/2139 is approximately 3.5 hectares. It shows further that the land was registered in the names of the Respondents on 20th June 2023 in the respective shares appearing on the register. It further shows that the parcel is a subdivision of plot number 552. 17. The registration of the Respondents in 2023 does not, in itself, answer the question whether the Applicant had already acquired rights by adverse possession. The Court has to look at the cumulative period of occupation that is adverse to the owner’s rights. Once the statutory period has run and the ingredients of adverse possession have been established, the doctrine operates by operation of law. A subsequent change in the identity of the registered proprietor does not, without more (re-entry by owner), restart a limitation period that has already run. 18. The critical question is therefore whether, before the Respondents became registered proprietors in 2023, the Applicant had already been in adverse possession for the requisite twelve years. In answer, it was the Applicant’s evidence, that possession commenced in 1995. Even taking the more conservative approach and allowing a reasonable period for the contractual relationship to cease to govern the possession, more than twelve years had elapsed by the time the Respondents became registered proprietors in 2023. 19. The Applicant’s possession had therefore endured for substantially more than the statutory period. By the time the Respondents acquired registration, the Applicant’s occupation had continued for decades. There is no evidence that the Respondents or the deceased proprietor had successfully interrupted that possession before the statutory period expired. 20. The Court is therefore satisfied that the Applicant has established the necessary continuity period ingredient. His possession was open, actual, notorious, peaceful and uninterrupted for a period exceeding twelve years. It was also inconsistent with the continued enjoyment of the disputed portion by the registered proprietor. The Court must next consider the exact land in respect of which the declaration is sought. An adverse possession claim must relate to identifiable land. It cannot be granted in respect of an uncertain or indeterminate portion. 21. In the present case, the Applicant’s agreement for sale identifies the portion purchased as approximately three acres out of parcel number 552. The evidence is that parcel number 552 was subsequently subdivided and that parcel number 2139 remained in the name of Charles Midianga Ndira. The Applicant’s case is that the portion he occupied became part of parcel number 2139. 22. There is, however, a discrepancy in the prayers in the Originating Summons with regard to the size of the land. While the Applicant principally claims three acres, one of the prayers refers to acquisition of 0.10 hectares. The two measurements are materially different. The Court cannot overlook that discrepancy. The proper approach is to determine the substantive claim from the pleadings and evidence rather than grant an order which is inconsistent with the evidence. The Applicant’s agreement for sale, his affidavit, his evidence and the agricultural report consistently point to a portion measuring approximately three acres. The reference to 0.10 hectares appears inconsistent with the remainder of the Applicant’s case. 23. The Court therefore finds that the portion established by the evidence is the approximately three-acre portion purchased and occupied by the Applicant, but that the precise boundaries of that portion should be ascertained on the ground through the appropriate land-surveying process before registration, to give to the Applicant approximately 3.0 acres of the parcel registered as 2139. If the survey establishes that he occupies less than three acres, that is the parcel he will be entitled to because adverse possession deals assertion of acquisition of ownership by occupation and not documents. 24. This approach is consistent with the principle that adverse possession may be acquired over part of a registered parcel provided that the portion claimed is sufficiently identifiable. The Court should not decree registration of a portion whose boundaries cannot be ascertained merely because the claimant has otherwise proved adverse possession. 25. In the circumstances, the appropriate relief is therefore not to declare the entire 3.5-hectare parcel KANYAMWA/KABONYO KWANDIKO/2139 to have devolved to the Applicant. The evidence supports only the approximately three-acre portion which the Applicant purchased and thereafter occupied. 26. The Court finds further that the Respondents’ registration of the suit parcel in 2023 did not revive their title as against the Applicant’s accrued rights. Extinction is absolute since it regards the life of a title. Once it ceases to exist it cannot be resuscitated, unless the previous or original owner also occupies it adversely from the time it was or became adversely acquired. The Applicant had already been in occupation for a period substantially exceeding twelve years. The statutory right of the registered proprietor to recover the land is subject to the provisions of the Limitation of Actions Act. 27. The Court is accordingly satisfied that the Applicant has proved his case on a balance of probabilities. His possession was not shown to have been interrupted by any successful action for recovery, nor was there evidence of a consensual arrangement under which he continued indefinitely to occupy the land after full payment while acknowledging the Respondents’ right to recover it. I therefore find that the Applicant has acquired by adverse possession the approximately three-acre portion of part of land parcel number KANYAMWA/KABONYO KWANDIKO/2139 which he has occupied and used since 1995. 28. Having arrived at the conclusion above, the Court must determine the appropriate reliefs *vis-à-vis* the evidence adduced. Section 38 of the Limitation of Actions Act permits a person who has become entitled to registered land by adverse possession to apply for an order that he be registered as proprietor in place of the person then registered. 29. The Applicant has asked the Court to order the Respondents to transfer the three-acre portion to him and, in default, to authorise the Deputy Registrar to execute the necessary documents. That is an appropriate form of relief where the evidence establishes entitlement but the registered proprietors have failed or are unwilling to facilitate the formal transfer. 30. However, because the three-acre portion forms part of a larger registered parcel, the land so declared to have been acquired adversely must first be properly identified, surveyed and delineated. The Land Registrar and the relevant survey authorities are best placed to effect the subdivision and registration after the precise portion has been ascertained. 31. The Applicant also seeks an order restraining the Respondents from entering, wasting, damaging or alienating the suit parcel. Since the Court has found that the Applicant is entitled to the approximately three-acre portion by adverse possession, an injunction is appropriate to protect his quiet possession and occupation of that portion. The injunction should, however, be limited to the portion to which the Applicant has established entitlement and should not operate against portions of parcel number 2139 over which he has not established adverse possession. 32. As regards costs, the general principle is that costs follow the event, subject to the discretion of the Court. The Applicant has succeeded in establishing his claim against the Respondents. While there is no circumstance before the Court warranting a departure from the ordinary rule the fact that the Respondents did not defendant the Claim and that the claim did not succeed as to the entire parcel of 2139, each party shall bear their own costs. 33. The upshot of the foregoing is that the Applicant is entitled to judgment in respect of the approximately three-acre portion of land parcel number KANYAMWA/KABONYO KWANDIKO/2139 which he has occupied adversely. Accordingly, this Court enters judgment for the Applicant against the Respondents in the following terms: * + 1. **A declaration be and is hereby issued that the Applicant, GORDON OTIENO ADOYO, has acquired title by adverse possession to the approximately THREE (3) ACRES being a portion of the land comprised in KANYAMWA/KABONYO KWANDIKO/2139 which, or the specific portion (if less than three acres), he has occupied, possessed and used continuously since 1995.** 2. **The proprietary interest of the Respondents in the said approximately three-acre portion is hereby declared extinguished by operation of Sections 7 and 17 of the Limitation of Actions Act, Chapter 22, Laws of Kenya.** 3. **The approximately three-acre portion, or less, occupied by the Applicant shall be surveyed, ascertained and delineated from land parcel number KANYAMWA/KABONYO KWANDIKO/2139 at the Applicant’s cost and shall be given a separate parcel number in accordance with the applicable land registration procedures.** 4. **The Respondents shall execute all necessary transfer and mutation documents required to facilitate the subdivision and registration of the said approximately three-acre portion in the name of the Applicant within thirty (30) days from the date of service of the requisite documents upon them.** 5. **In default of the Respondents’ performance of the steps in (d) above, the Deputy Registrar of this Court is hereby authorised to execute the same on their behalf for purposes of facilitating the subdivision and registration of the said portion in the name of the Applicant.** 6. **A permanent injunction is hereby issued restraining the Respondents, their servants, agents, relatives, assigns or any person claiming through them from entering upon, trespassing onto, alienating, transferring, charging, leasing, damaging, wasting or in any manner whatsoever interfering with the Applicant’s quiet possession, occupation and use of the approximately three-acre portion, or less as specifically occupied by the Applicant, as referred to in prayer (a) above.** 7. **Each party shall bear their own costs of the suit.** 34. Orders accordingly. **Judgment dated, signed and delivered virtually via the Teams Platform this 12th day of August 2026.** **HON. DR. *IUR* NYAGAKA** **JUDGE** **In the presence of,** Kowinoh Advocate for the Applicant No appearance for the Respondents