Onyango v Onyango alias Calvin Owuor Onyiego & 5 others (Environment and Land Case E002 of 2025) [2026] KEELC 3972 (KLR) (29 June 2026) (Judgment)

Onyango v Onyango alias Calvin Owuor Onyiego & 5 others (Environment and Land Case E002 of 2025) [2026] KEELC 3972 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELC 3972 (KLR) Republic of Kenya In the Environment and Land Court at Siaya Environment and Land Case E002 of 2025 AE Dena, J June 29, 2026 Between Celine Achieng Onyango Plaintiff and Calvine Owuor Onyango alias Calvin Owuor Onyiego 1st Defendant Moses Oduor Handa 2nd Defendant Moses Oduor Handa (As administrator of the Estate of Regina Brenda Awino Handa - Deceased) 3rd Defendant Eunice Atieno Handa 4th Defendant Joseph Otieno Handa 5th Defendant Hillary Omondi Ahono a.k.a Kennedy Hilary Handa 6th Defendant Judgment 1.This suit was commenced by way of Originating Summons dated 14/01/2025 which was amended on 2/04/2025 with leave of the court. The Plaintiff sought the following orders; - 1.A declaration that the Plaintiff has acquired by adverse possession a portion of all that parcel of land known as Title No. South Ugenya/Ambira/1820 measuring 11 meters by 17.6 meters approximately already developed and occupied. 2.A declaration that Calvin Owuor Onyango alias Calvin Owuor Onyiego the named 1st defendant holds in trust for the plaintiff all that portion of Title No. South Ugenya/Ambira/1820 measuring 11 meters by 17.6 meters - approximately already developed and occupied. 3.A declaration that Moses Oduor Handa (whether by himself or as the administrator of the estate of Regina Brenda Awino Handa (deceased) Eunice Atieno Handa, Joseph Otieno Handa and Hilary Omondi Ahono a.k.a Kennedy Hilary Handa held that portion of Title No. South Ugenya/Ambira/1820 measuring 11 meters by 17.6 meters approximately in trust for Celine Achieng Onyango the Plaintiff and had no legal capacity nor authority to sell the same to the 1st Defendant as alleged or at all. 4.A mandatory order of injunction do issue directing Calvine Owuor Onyango alias Calvin Owuor Onyiego the named 1st defendant to survey and transfer to CELINE ACHIENG ONYANGO all that portion of Title Number South Ugenya/Ambira/1820 measuring 11 meters by 17.6 meters approximately and developed and occupied by the plaintiff within ninety (90) days of the order failing which Siaya County surveyor to undertake the subdivision and the Deputy Registrar to execute all such documents as may be necessary to effect the transfer. 5.Any other and/or further orders as this honourable Court may deem just and expedient to grant. 6.Costs of this suit. 2.The suit against 2nd and 3rd Defendants was withdrawn vide a notice dated 16th September 2025 on account of death of Moses Oduor Handa. The rest of the Defendants did not enter appearance nor did they defend this suit despite service. Proof of service is contained in Affidavit of Service dated 10/3/2025 by way of advertisement; 31/01/20265 and 27/6/2025 HEARING AND EVIDENCE 3.Satisfied with service the matter proceeded on formal proof viva voce on 5th November 2025. 4.The 6th Defendant Hillary Omondi and 4th Defendant Eunice Atieno Handa attended court on the material day and upon inquiry informed the court that they both supported the Plaintiffs case. However, I must add that the two had no right of audience as long as they never entered appearance in the suit. 5.The Plaintiff Celine Achieng Onyango testified on her own behalf as PW1. She adopted the supporting affidavit to the Originating Summons as her evidence in chief. It was her evidence that on 8/07/2007 she purchased a portion measuring 11 meters by 17.6 meters of South Ugenya/Ambira/1820 (herein suit property) from Elizabeth Akinyi Apudo the 2nd defendants’ mother at a consideration of Kshs. 40,000.00/-. That she immediately took possession and/or occupation and developed the portion over the years. 6.The witness further testified that the said Elizabeth Akinyi Apudo died in November 2007 whereupon the 2nd to 5th defendants acknowledged the 'sale' and received the balance of the purchase price and signed a memorandum of agreement dated 23rd November 2007 as witnesses. That Elizabeth Akinyi Apudo had transferred her interest to the suit property to her children the 2nd and 5th Defendants. 7.Further that she has since July 2007 had open, continuous, exclusive and peaceful possession, occupation, use and control of the portion which she developed with full knowledge of the defendants until around August 2024 when the 1st defendant claimed to have bought the entire suit property from the 2nd to 5th defendants. 8.PW1 asserted that Elizabeth AKinyi Apudo had as of 19th July 2007 no legal capacity to sell the property but her children herein defendants since she had transferred her interest to them on 22nd June 1999. The children had both by conduct and expressly acquiesced in the said purported sale by their mother, and even received part of the purchase price on her demise. 9.It is her assertion that she has acquired by adverse possession the portion she purchased and 2nd to 5th defendants held the same prior to the purported sale and transfer to the 1st defendant in trust for her effective 21st June 2012 and had no legal right to purport to sell this portion to the 1st defendant as they have done or at all. Further that the 1st defendant equally bought the suit property subject to her prescriptive legal interest aforesaid and hold the same in trust for PW1. 10.The witness also produced the annextures in the adopted supporting affidavits CAO 1, CAO2, CAO 3 and CAO 4 (a) & (b) and Agreement for sale. She added that the buyer therein bought 0.06 ha while the land was 0.07Ha meaning her portion is lost or the unaccounted portion could be her portion. That the photos produced represented her development being 6 rooms and a store. That the portion marked B on the plan she had produced was the area she occupied and prayed to the court that a title be issued in her name for the same. 11.With the above the plaintiff’s case was marked as closed. SUBMISSIONS 12.Counsel on record for the plaintiff filed submissions dated 17/11/2025. 13.It is submitted while the Plaintiff took possession of and developed a section of the suit property purportedly on the strength of an agreement between her and Elizabeth Akinyi Apudo which had no legal consequence, her possession and development of the property was both factually and legally adverse and hostile to the legal and proprietary interest of the registered owners i.e.: the named 2nd to 6th Defendants. 14.It is submitted that the five (5) owners in common whether knowingly or out of ignorance acquiesced to Plaintiff's actual, effective and adverse possession of their legal estate in the land for 16 years ( 2007 to 2023) and permanently lost legal claim to the part of the suit land that Plaintiff had by adverse possession acquired from them. 15.It is submitted that the 2nd, 3rd, 4th, 5th and 6th Defendants being the registered proprietors of the land effective 22.6.1999 seem to have been aware of the plaintiff's accrued legal rights over the part of the land that she had developed because when they decided to sell their residual interest to 1st Defendant on 21st January 2023, they did not sell the whole acreage but only a portion of it measuring 0.06 Ha approximately and NOT 0.07 Ha which is the registered acreage of the suit land. 16.Relying on the case of Kuria Kiarie vs. Sammy Magera (2018) KECA (KLR) where the Court of Appeal quoted a summary of the doctrine of adverse possession by Hon. Makhandia J.A. in Mtana Lewa vs. Kahindi Ngala Mwagandi (2015) eKLR and Mate Gitabi vs. Jane Kaburu Muga alias Jane Kaburu Muga & 3 others (2017) eKLR on dispossession of the land from the owner nec vi nec clam nec precario it is submitted that any acquiescence at the purported agreement with Elizabeth was of no legal weight nor effect. That the plaintiff has todate remained on the land portion openly, peacefully without let or hindrance for a period of 18 years demonstrating active ownership thereof against any entitlement thereto by the five (5) registered owners or their personal representatives and not by their license nor permission at all and thereby dispossessing the true and legal owners of the land. 17.It is further urged that the Plaintiff’s acquired prescriptive right to the land inured and survived to her despite the sale of the unclaimed portion to the 1st defendant. That acquisition by prescription is one of the methods of acquisition of title to land (see section 7(d) of the Land Act) and all registered land shall be subject to the overriding interest acquired by prescription without such interest being noted in the register (see section 28(h) of the Land Registration Act). ANALYSIS AND DETERMINATION 18.I have considered the pleadings, the evidence led both oral and documentary and the submissions filed on behalf of the plaintiff. The main issue for determination is whether the plaintiff has proved her claim to the required standard of proof to warrant the grant of the orders sought. 19.This is a claim for adverse possession and a look at the law governing the same is pertinent for the guidance of the court. Adverse possession is grounded in sections 7, 13, and 38 of the Limitation of Actions Act, (Cap 22) as follows; - 20.The provisions of Section 7 read; -“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 is first accrued to some person through whom he claims, to that person”. 21.Section 13 provides that; -“(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 in this Act referred to as adverse possession) and, 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 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) of this Act, the land in reversion is taken to be adverse possession of the land.” 22.The provisions of Section 38 read; -“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.” 23.In the case of Ongwen & another v Keya & another (Environment & Land Case E027 of 2021) [2023] KEELC 279 (KLR) the court had this to say about the doctrine; - 29.This right to be adverse to land does not automatically accrue unless the person in whom this right has accrued takes action. Section 38 of the Act gives authority to the claimant to apply to Court for orders of adverse possession. See the findings of the Court in Malindi App No. 56 of 2014 Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR where it held; 30.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 licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. 24.The Court of Appeal in Kisumu Civ App. No. 110 of 2016 Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR opined that a person claiming adverse possession must establish the following;(a)On what date he came into possession.(b)What was the nature of his possession?(c)Whether the fact of his possession was known to the other party.(d)For how long his possession has continued and(e)That the possession was open and undisturbed for the requisite 12 years. 25.Arising from the provisions of the law and judicial precedents above I have decanted a number of requirements that must be met by a litigant claiming adverse possession.1.The land must be registered in the name of a third party. A known owner.2.There must be possession which possession ought to be adverse and to the exclusion of the owner3.The possession must be without permission of the owner for a continuous/uninterrupted period of 12 years4.The owner of the land fails or neglects to take action against the ‘intruder’ 26.Applying the above to the present case I will proceed to consider if the threshold set has been met by the Applicant since the burden of proof lies her – See section 107 of the Evidence Act Chapter 80 of the Laws of Kenya. 27.I’m also minded of the fact that the said burden is not lessened or relaxed even where the suit is undefended. 28.PW1 produced Copy of the Green Card; grant of letters of administration; copy of a written memorandum and translation thereof; Sketch plan of the property marked "B”, Photographs and agreement for sale to the 1st Defendant 29.Firstly it is imperative that the land is registered land, registered in the name of a third party that is to say another registered owner other than the claimant. PW1 produced Copy of the Green Card for parcel South Ugenya/Ambira/ 1820. The green card shows that the parcel has been held by a number of registered proprietors from the time of her alleged occupation in the year 2007 namely Elizabeth Akinyi Adudo in 9/2/1996, Moses Oduor Handa, Eunice Mercy Anyango Handa & Joseph Otieno as at 22/6/99. This therefore confirms that the land belonged to another person other than the Plaintiff herein and it is registered land as envisaged in section 37 of the Act. 30.I will now analyse the possession. The burden was on the plaintiffs do demonstrate they have been in possession of the suit property for a continuous period of 12 years as required by statute. Additionally, that the said entry was not concessionary and it was open and peaceful without interference from the owners. 31.PW1 evidence is that she purchased the portion from Elizabeth in the year 2007 and took possession immediately making a period of 18 years occupation. She also produced photos in proof of possession which reveal structures erected therein. The sale agreement between the plaintiff and Elizabeth confirms the date of the agreement as 19/7/2007 bringing the occupation to a total of at least 18 years from July 2007 to the date this suit was filed in January 2025 therefore meeting the statutory requirement of 12 years. 32.Possession is also tied with the conditions as already noted. The question that arises is whether the same was without permission of the owner of the land. It is noteworthy that at the said time Elizabeth was not the registered proprietor of the suit property and therefore it is trite no interest over the land was conferred upon the plaintiff. Counsel for the plaintiff has submitted that this should be interpreted as absence of consent. I would agree to the extent that Elizabeth was not the registered owner of the land. 33.I think of utmost importance is whether the owner subsequently became aware about this occupation and did nothing about it in terms of removing PW1 from the portion of land she occupies. I have already noted that the land was on 22/6/99 registered to Moses Oduor Handa, Eunice Mercy Anyango Handa & Joseph Otieno. The individuals were made parties to these proceedings being the 2nd, 4th and 5th defendants respectively. The suit against the 2nd defendant was withdrawn. This leaves me with the 4th and 5th defendants. PW1 evidence is that she has been in occupation to date. The photos show structures on the portion meaning therefore the same was open to everyone to see. It was also adverse as PW1 put it to her exclusive use. 34.PW1 also told the court that she has lived therein peacefully without any complaint by these defendants except when the 1st defendant came into the picture as a purchaser. The said defendants did not respond to the suit neither did they lead any evidence to controvert PW1 evidence. 35.I think have no reason not to make a finding that the plaintiff has proved a claim for adverse possession of the portion claimed of the suit property as against the registered proprietors to the required standard of proof. 36.But I must add with regard to the 1st defendant that the sale agreement was produced by PW1 and it reveals that the same is dated 21st January 2023 by which time the period of 12 years had already accrued for purposes of adverse possession of the claimed portion. Consequently, the same would be of no consequence to the portion occupied by the plaintiff. Further the said sale agreement to the 1st defendant reveals at clause 1 (a)(ii) that the portion sold was 0.06 Ha or thereabouts against the entire land measuring 0.07Ha. I would therefore not hesitate to make an order in favor of the plaintiff for the portion she occupies since not the entire land was sold to the said defendant. The plaintiff’s portion can safely be hived off without a finding that the 1st defendant holds the same in trust for the plaintiff. 37.Is the plaintiff entitled to grant of the orders sought? PW1 claim is for a portion of the suit property which she has clearly identified vide a sketch map drawing she produced before court. The portion is marked ‘B’ with the requisite measurements given as against the entire land leaving out portion A. 38.Costs are discretionary and I will make an order that the plaintiff bears her own costs of this suit. 39.The upshot of the foregoing is that judgement is entered for the plaintiff against the 1st 4th 5th and 6th Defendants in the following terms; -1.A declaration that the Plaintiff has acquired by adverse possession a portion (as shown in the sketch map as ‘B’) of all that parcel of land known as Title No. South Ugenya/Ambira/1820 measuring 11 meters by 17.6 meters approximately already developed and occupied.2.A mandatory order of injunction do issue directing Calvine Owuor Onyango alias Calvin Owuor Onyiego the named 1st defendant to survey and transfer to CELINE ACHIENG ONYANGO all that portion of Title Number South Ugenya/Ambira/1820 measuring 11 meters by 17.6 meters (as shown in the sketch map as ‘B’) approximately and developed and occupied by the plaintiff within ninety (90) days of the order failing which Siaya County surveyor to undertake the subdivision and the Deputy Registrar to execute all such documents as may be necessary to effect the transfer.3.The cost of the above survey to be borne by the Plaintiff4.The plaintiff shall bear her own costs of this suit. DELIVERED AND DATED THIS 29TH DAY OF JUNE 2026HON. LADY JUSTICE A.E. DENAJUDGE29/06/2026JUDGEMENT DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM IN THE PRESENCE OF:Mr. Mungla for the PlaintiffN/A for defendantsCeline Anyango PlaintiffCourt Assistant - Dorothy Wanyanga