https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5074

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT HOMA BAY** **ELC CASE NO. E067 OF 2025 (O.S.)** **JOHN OTIENO APAMO Suing on behalf of the** **Estate Dorina Auma Abich ……………………….……...…...APPLICANT** * **VERSUS –** **CHARLES NYOKERE ABICH …..………….………….………DEFENDANT** **JUDGEMENT** 1. The Judgement of this Honourable Court pertains to a civil suit instituted by way of Amended Originating Summons dated 4th March 2026. The case was premised under the provision Sections 38 of the Limitations of Actions Act, Cap. 22. 2. The plaintiff in the amended originating summons prays for orders THAT; 3. *A declaration that the Respondent right to recover the whole of land parcel No. KABUOCH/K/K/KOGUT/212 then 2617 now 3004 from the applicant is barred under the limitation of Actions Act (Cap 22 laws of Kenya) and their titles thereto extinguished on the grounds that the applicant herein has openly, peacefully, continuously and actively been in occupation and possession of the said land measuring 0.4Ha for a period of over 30 years now.* 4. *The Honourable courts do order that the Applicant be registered as the proprietor of a portion measuring 0.4Ha of the suit land parcel No. KABUOCH/K/K/KOGUT/212 then 2617 now 3004 in place of the respondent/defendant.* 5. *The Honourable Court do order the defendant to execute all necessary documents to effectuate the transfer of whole of land known as KABUOCH/K/K/KOGUT/212 then 2617 now 3004 to the plaintiff and in default the Deputy Registrar of this court be empowered to do so.* 6. *Any other be order be made as the court deem fit and expedient.* 7. *Costs of this summons be borne by the respondents.* 8. The Original Summons was supported by an affidavit sworn by JOHN OTIENO APAMO, sworn on the same day with the Originating summons where he averred that; 9. I together with my other family members have been in both actual and constructive use of the entire land parcel no. *KABUOCH/K/K/KOGUT/212 then 2617 now 3004* measuring 0.6ha for over 30 years. 10. For the entire 30-year period of my continuous use and occupation, my other family members who have passed on have been buried on the suit land. My deceased father and the late Dorina Auma was buried on the suit land. 11. Born and raised on the suit land together and later my children and I have been and continue to be in possession and occupation of the suit land without interruption to date. 12. I have extensively developed the entire land by building both semi-permanent and other residential structures thereon and in which I reside with my family. 13. I have also grown trees on the land and cultivate various crops thereon. 14. I have no other known land or other place to call home other than the suit land. 15. The defendant’s right to recover the suit land has been extinguished by effluxion of time. 16. I have demonstrated a good case for prescription. 17. The suit land is the only land that is owned by me, my mother, other siblings and children. 18. After being in occupation for a time exceeding 12 years now the respondent’s right to the whole *KABUOCH /K/K/ KOGUT/ 212 then 2617 now 3004* measuring 0.6Ha occupied by me is extinguished. 19. My occupation, possession, cultivation and living in the said parcel of land and my children uninterrupted, free, open and continuous allows me to acquire the said portion of land under the law. 20. The respondent was served with the summons but did not file any response hence the matter proceeded ex parte. Hearing proceeded on the 22nd July 2026 where PW1 testified. 21. PW 1 applicant herein relied on his supporting affidavit dated 3rd March 2026 and list of documents dated 5th January 2026 which was adopted as evidence in chief. 22. PW1 produced the documents as follows; 23. PExh 1 photographs 1a-e 24. PExh 2 Copy of Ad litem 25. PExh 3 green card parcel number 212 26. PExh 4 green card parcel number 3004 27. PExh 5 copy of official search parcel number 3004 28. PEx 6Copy of sale agreement 29. Upon the close of the Applicant's and the Respondent's cases, the applicant did not seek leave to file written submissions. The court therefore proceeded to determine the matter on the basis of the pleadings, the evidence adduced, and the material placed before it. 30. I have carefully read and analyzed all the pleadings herein, both the oral and all the documentary evidence adduced in court. 31. As already indicated above, this matter proceeded by way of formal proof as the Defendant was despite of being served with the summons never complied. The Plaintiff’s evidence herein has not been controverted as the matter proceeded as a formal proof. However, it does not mean because the Plaintiff’s suit is uncontroverted, then the Plaintiff’s claim has to be allowed automatically. The Plaintiff has a duty to call sufficient evidence and prove his claim on the required standard of balance of probabilities. See the case of ***“Samson S. Maitai & Another – Versus - African Safari Club Ltd & Another [2010] eKLR”***, where the Court held that: - ***“I have not seen judicial definition of the phrase ‘formal proof’. ‘Formal’ in its ordinary dictionary meaning refers to being ‘methodical’ according to rules of evidence. On the other hand, according to Halsbury’s Laws of England, Vol. 17 Paragraph 260, proof is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption”.*** 1. In this regard, for the Honourable Court to arrive at an informed, reasonable and fair decision, it has farmed three (3) issues for its determination. These are as follows: - 2. ***Whether the Plaintiff has made out his claim for land adverse possession?*** 3. ***Whether the Plaintiff is entitled to the prayers sought?*** 4. ***Who meets costs of the suit*** **Issue of Determination** 1. The main issue is whether the Plaintiff is entitled to ownership of 0.4Ha of the that parcel of *KABUOCH/K/K/KOGUT/212 then 2617 now 3004* by virtue of land adverse possession. 2. It is trite law that in any suit of this nature, the party who seeks to rely on the existence of a fact or a set of facts must provide evidence that those facts exist. This is what in law is termed as “**the Burden of Proof”** and is captured in the provision of Section 107 of the Evidence Act. Cap 80 laws of Kenya which provides as follows: - **“107. Burden of Proof (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”** 1. The ingredients to be established in a case of adverse possession are well settled as highlighted in the case of ***“Mtana Lewa – Versus - Kahindi Ngala Mwangandi (2015) eKLR”***. Order 37 Rule 4 of the Civil Procedure Rules, 2010 pursuant to which the application was brought provides that:- **“Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable before the judge in chambers, for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgage.”** 1. Adverse possession is a doctrine of law vide which a person obtains legal title to land by reason of actual, open and continuous occupation of it to the exclusion of the registered owner for a prescribed period. In Kenya, the prescribed period is 12 years. The doctrine is anchored on the provisions of Sections 7, 13 and 38 of the Limitation of Actions Act, cap. 22. Section 7 provides that: **“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 provision of Section 13 of the Limitation of Actions Act, Cap. 22 provides: - **(1) A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of Limitation can run (which possession is this Act referred to as adverse possession), where under sections 9, 10, 11 and 12 of this Act 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 cease 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 purpose of this section, receipt of rent under a lease by a person wrongfully claiming in accordance with section 12 (3) of this Act, the land in reversion is taken to be adverse possession of the land.** 1. The procedure for seeking relief on a claim based on adverse is provided for in Section 38 of the Limitation of Actions Act, Cap 22 and Order 37 of the Civil Procedure Rules, 2010. Section 38 (1) provides: - **(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, 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 proprietor of the land** **(2) An order made under sub-section (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.** 1. And the provision of Order 37 (1) & (2 ) Civil Procedure Rules, 2010 provides: - **“(1) An Application under Section 38 of the Limitation of Actions Act shall be made by Originating Summons** **(2) The summons shall be supported by an Affidavit to which a certified extract of the title to the land in question has been annexed.”** 1. The provision of Article 162 (2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act, No. 19 of 2011 and Section 38 of the Limitation of actions Act, Cap. 22 confer jurisdiction on this court to handle claims premised on adverse possession. 2. In the present case, it has been averred that the Plaintiff have been in an open, quiet, interrupted continuous occupation and possession of 0.4Ha of land/plot known as *KABUOCH/K/K/KOGUT/212 then 2617 now 3004* registered in the name of the Defendant. He has been in the said quiet, open, without forced occupation of the suit property or any interruption for over a continuous period of 30 years. 3. The plaintiff has been utilizing the 0.4 Ha of *KABUOCH/K/K/KOGUT/212 then 2617 now 3004* for farming and there are houses seen on the copies of photographic evidence produced as evidence. The plaintiff indicates that he has extensively developed the entire land which can be seen on the evidence presented before the court. 4. In the case of ***“Kimani Ruchure – Versus - Swift Rutherfords & Co. Ltd (1980) KLR 10”*** Kneller J held that: ***“The Plaintiffs have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion).”*** 1. Similarly, in the case of ***“Gabriel Mbui – Versus - Mukindia Maranya [1993] eKLR”*** adverse possession was defined as:- ***“…….the non-permissive physical control over land coupled with the intention of doing so, by a stranger having actual occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owner’s enjoyment of land for purposes for which the owner intended to use it.”*** 1. In the case of **Public Trustee v Wanduru**, the Court held that where a purchaser takes possession after paying the purchase price, time for purposes of adverse possession begins to run from the date of final payment of the last instalment, because the vendor becomes dispossessed. The same principle was reiterated in the case of **Gabriel Mbui v Mukindia Maranya [1993] eKLR**. 2. The court looked at the land sale agreement produced as PExh 6 executed on 21st November 1997, shows that the last installment was paid on 21st November 1997. Therefore, time started running from the date of final payment of the last instalment was made which on 21st November 1997. 3. The plaintiff dispossessed the defendant in the year 1997 and by the time this suit was instituted in 2025, the Plaintiff had already occupied the land openly and continuously for well over twelve years from the date of entry. 4. The Court therefore finds and holds that the Plaintiff has proved, on a balance of probabilities, that his occupation of the suit property was open, notorious, exclusive, continuous and adverse to the Defendant’s title for a period exceeding twelve years. 5. Consequently, this court finds and holds that **0.4 Ha** of the Defendant ’s parcel No. *KABUOCH/K/K/KOGUT/212 then 2617 now 3004*, was extinguished by operation of law under Section 17 of the Limitation of Actions Act. 6. The court notes that the Defendant became the registered proprietor of land parcel *KABUOCH/K/K/KOGUT/3004* on 6th June 2022. However, the sale agreement produced by the Plaintiff shows that he purchased the suit property in 1997**,** prior to the adjudication and first registration of the land. The evidence further reveals that the original parcel, *KABUOCH/K/K/KOGUT/212*, was first registered in 2003 in the name of Ouma Ong'ou and was subsequently transferred to Samwel Ochieng in 2012. Upon subdivision, parcel *KABUOCH/K/K/KOGUT/212* ceased to exist, and the portion occupied by the Plaintiff became known as *KABUOCH/K/K/KOGUT/2617*, which was eventually transferred to the Defendant and is now registered as *KABUOCH/K/K/KOGUT/3004* following the transfer effected in 2022. 7. In light of the foregoing chronology, the primary question for determination is whether the successive changes in ownership of the suit property, culminating in its registration in the Defendant's name in 2022, interrupted or otherwise defeated the Plaintiff's claim for adverse possession. Put differently, the issue is whether a change of ownership of the suit property extinguishes or interrupts the running of time for purposes of a claim founded on adverse possession. 8. In the case of **Douglas Mbugua Mungai vs Harrison Munyi [2019] eKLR** where this Court held that: “The issue in the Githu case was whether the mere change of ownership of land that is occupied by another under adverse possession would interrupt such person’s adverse possessions. And the answer was correct that where the person in possession has already begun and is in the course of acquiring rights under section 7 of the [*Limitation of Actions Act*](https://kenyalaw.org/akn/ke/act/1968/21), those rights are overriding interests by virtue of section 30(f) of the RLA, to which the new registered purchaser’s title will be subject.” Further, in **Titus Kigoro Munyi vs Peter Mburu Kimani [2015] eKLR**, this Court observed that: “It must be noted that under section 7 of the [*Limitation of Actions Act*](https://kenyalaw.org/akn/ke/act/1968/21), the law relating to prescription affects not only present holders of the title but their predecessors.” 1. From the foregoing authorities, it matters not when the defendant became the registered owner. The acquisition of the title to defendant in 2022 was subject to the plaintiff’s overriding interest protected by Section 30(f) of the Registered [*Land Act*](https://kenyalaw.org/akn/ke/act/2012/6) (now repealed). 2. Thus, the court finds and holds that the Plaintiff herein has proved his case on the required standard of balance of probabilities. Therefore, the end result is that Judgment is hereby entered for the Plaintiff against the Defendant in the following terms: 3. ***A declaration be and is hereby issued that the Plaintiff has acquired title by adverse possession over 0.4Ha of parcel of land known as KABUOCH/K/K/KOGUT/3004.*** 4. ***That the plaintiff be registered as the proprietor of a portion measuring 0.4Ha of the suit land parcel No. KABUOCH/K/K/KOGUT/3004 in place of the defendant.*** 5. ***The defendant is hereby directed to execute all necessary documents to effectuate the transfer of 0.4Ha of land known as KABUOCH/K/K/KOGUT/3004 to the plaintiff and in default the Deputy Registrar of this court be empowered to do so.*** 6. ***Costs of this suit are awarded to the Plaintiff.*** **JUDGEMENT DATED AND DELIVERED AT HOMA BAY THIS 28TH DAY OF JULY 2026.** **In the presence of;** * + - 1. Achola for the Plaintiff -Absent 2. John Otieno Apamo, plaintiff -Present 3. Charles Nyokere, defendant -Present 4. Court Assistant, Awino- Present. **JUSTICE J.W WANYONYI-JUDGE** **28/7/2026**