https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4267

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY** **ENVIRONMENT AND LAND COURT CASE (OS) NO. E002 OF 2025** **DANIEL OLUOCH ATIENO……………………………….….APPLICANT** **VERSUS** **JOHN NYACHEO CHANGE………………………………..RESPONDENT** **JUDGEMENT** 1. The Applicant approached this court vide a Summons dated 30th July 2025, brought under Order 37 Rule 7 of the Civil Procedure Rules and Sections 7, 17 and 38 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, seeking the following orders; 2. **The Applicant be declared to have acquired ownership of the suit land known as KANYADA/K/KATUMA-B/46 by way of adverse possession.** 3. **The Respondent's title to the land should be declared extinguished by virtue of Section 17 and Section 38 of the Limitation of Actions Act.** 4. **The Land Registrar, Homa Bay, be directed to register the Applicant as the owner of the suit land.** **Costs of this Application be provided for.** 1. The Summons is premised on the averments in the Supporting Affidavit sworn by the Applicant. In it, he deponed that he had acquired ownership of that whole parcel of land known as KANYADA/K/KATUMA-B/46 by way of adverse possession. Further, that the suit property is a defined, identifiable, and distinct parcel of land in Sofia Estate within Homa Bay Town, and he had been in actual, peaceful, exclusive, open, and uninterrupted possession and usage of the said land for over thirty (30) years. 2. The deponent averred that sometime in or about the year 1984, he bought his own parcel of land in Sofia Estate within Homa-Bay Town, about 125 meters from the suit property. For about 4 subsequent years, he used to see the suit property lying empty, vacant, and unattended. In 1989, he did a rudimentary demarcation of the suit property by erecting a fence of euphorbia and other plants, and immediately started using the suit property for farming and related activities, as his own property. 3. He deponed that he has continued to use the suit property up to now, a total period of more than 30 years, and that during this period, he a number of activities openly and without permission by anyone including; demarcating the suit property using live plants, planting crops like maize and beans, grazing his cows on the suit property among others. He further stated that he has consistently used the suit property without interference from any person whatsoever or claim by the owner or his representatives. 4. The deponent averred that his possession and usage of the suit property has been open, notorious, and conspicuous, as can be proved by the witness affidavits of neighboring land owners and even more importantly, an annexed letter from the area chief. Although the registered owner knew of his usage, he had never taken any steps to evict or interrupt his possession of the suit property. 5. He annexed and marked DO-1, DO-2, DO-3, DO-4, DO-5, and DO-6 are copies of the official land search. Green Book, picture of live fence, picture of the barbed wire fence, picture of the gate, and a written statement from the area chief, respectively. He urged the court to allow the Summons. 6. The Applicant made an Application to serve summons to enter appearance by way of substituted service. The same was allowed and the Applicant then served such summons which service was proved by way of an affidavit of service dated 27th November 2025. 7. The matter proceeded for hearing. 8. **PW1** was **Daniel Oluoch Atieno** who testified that he purchased a piece of land that was vacant while he worked in Homa Bay. The purchased parcel was next to the suit land. He noticed that the suit land was vacant and he began grazing his cows on the land and began farming. He eventually fenced the land with euphorbia and treated it as his. He even added barbed wire and erected a gate. He further stated that he looked for the owner but was unable to trace him. He advertised in the newspapers and at the court but nobody came to defend the case. 9. He produced the annexures of the supporting affidavit as evidence, being PExh1, 2, 3, 4, 5 and 6. He stated that although the Defendant knew of his stay and told a friend that he wanted to see him, he never came. 10. **PW2** was **Maurice Ouma Nyasoro** who adopted his affidavit dated 30th July 2025 as evidence. In it, he deponed that he knew the applicant and his family personally since around 1990 when he came to Sofia Estate within Homa Bay and rented a house near the suit property. He purchased a parcel of land opposite the suit land. He urged further that he had seen the applicant has always used the land peacefully, openly and without interruption, planting crops like maize and beans. That marked the close of the Applicant’s case. 11. The Applicant opted not to file submissions. 12. The sole and main issue for determination is; **Whether the Applicant has acquired title to KANYADA/K/KATUMA-B/46 by way of adverse possession**. The one on costs will be determined as a matter of course. 13. This court proceeds to determine the merits of the issues, starting with the main one. The doctrine of adverse possession in Kenya is founded under Limitation of Actions Act. Section 7 of the said Act places a bar on actions to recover land after 12 years from the date on which the right accrued as follows; **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. Further section 13 of the same Act, provides that adverse possession is the exception to this limitation: 2. **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 Section 9, 10, 11, and 12 a right of action to recover land accrues on a certain date and no person is in adverse on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.** 3. **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.** 4. **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”.** 5. Section 17 goes on to provide as follows: **“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 (including a redemption action), the title of that person to the land is extinguished”.** 1. Finally, Section 38(1) and (2) states that: “**(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 subsection (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. The doctrine of adverse possession was aptly defined in **Mtana Lewa - v- Kahindi Ngala Mwangandi (2015) eKLR** where the Court of Appeal held that: - **“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 of stealth not 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, in order to establish a claim of adverse possession, the possession must be: 2. **Adverse to the interests of the owner – meaning that the claimant is in possession as owner in contradistinction to holding in recognition of or subordination to the true owner or to a recognized superior claim of another;** 3. **Actual - as opposed to constructive possession where the test is the degree of the actual use and enjoyment of the parcel of land involved by the claimant or his agent, tenant or licensee;** 4. **Open and notorious - meaning that the possession must be open and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner’s rights are being invaded. Differently put, the possession must be manifest to the community;** 5. **Without force - meaning that the possession and occupation must have been achieved peaceably not through actual or threatened violence;** 6. **Exclusive - meaning that the possession must be of such exclusive character that it will operate as an ouster of the owner of the legal title. Differently put, the claimant must demonstrate that she wholly excluded the owner from possession for the required period;** 7. **Continuous and uninterrupted for the period of twelve years - meaning that the title owner did not re-enter the property under circumstances showing her intention to assert dominion against the adverse user for at least twelve years.** **See Joseph Ndafu Njurukani & 2 Others vs. Emily Naliaka Barasa, Kisumu Civil Appeal No. 149 of 2022; Titus Mutuku Kasuve (Supra); Titus Kigoro Munyi (Supra); Wambugu vs. Njuguna (supra) and Karuntimi Raiji (supra).** 1. From the evidence on record, the Applicant occupied the land next to the suit land first upon purchase of the same. He then proceeded to begin using the suit land for various purposes including grazing his animals and planting crops. He eventually fenced the land and according to the neighbors and the chief, his occupation of the land was open, notorious and exclusive. 2. The Applicant produced evidence that the suit land was indeed registered in the name of the defendant. He testified that he has occupied the property since he fenced it. The Applicant also served the Respondent vide substituted service in accordance with the law and the Respondent did not enter appearance or file any response. 3. Having considered the evidence on record, it is apparent that the Applicant has acquired the suit land by way of adverse possession. I hereby issue the following orders; 4. **The Applicant has acquired ownership of the suit land known as KANYADA/K/KATUMA-B/46 by way of adverse possession.** 5. **The Land Registrar, Homa Bay County is hereby directed to register forthwith the Applicant as the owner of the suit land.** 6. **Each party shall bear its own costs.** **Judgment dated, signed and delivered virtually via the Teams Platform this 16th day of June 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **From 10:22 AM, in the presence of,** The Plaintiff No appearance for Respondent