https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5094

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT HOMA BAY** **ELC CASE NO. E011 OF 2024 (O.S.)** **CHARLES OPONDO ONYANGO ……………………..…...…...APPLICANT** * **VERSUS –** **THOMAS OCHIENG ABUTO** **(Sued as the administrator of the estate** **Of the deceased Michael Abuto Ongeche)………...……RESPONDENT** **JUDGEMENT** **INTRODUCTION** 1. This suit was commenced by way of an Originating Summons dated 21st August 2024 in which the Plaintiff, **Charles Opondo Onyango**, seeks to be declared the owner of **Land Parcel No. LAMBWE EAST/2070** by virtue of adverse possession. The suit is brought against **Thomas Ochieng Abuto**, sued in his capacity as the administrator of the estate of the late **Michael Abuto Ongeche**, the registered proprietor of the suit property. 2. The Plaintiff seeks a declaration that he has acquired title to the suit property through adverse possession, an order directing the Land Registrar, Homa Bay, to rectify the register by registering him as the proprietor, an order compelling the Defendant to execute all transfer documents, and in default the Deputy Registrar to execute the same. He also seeks a permanent injunction restraining the Defendant from interfering with his occupation and use of the suit property together with costs of the suit. 3. The Defendant opposed the Originating Summons through a replying affidavit dated 9th October 2024, denying that the Plaintiff had occupied the suit property for the statutory period. He contends that the Plaintiff only entered the land after filing this suit, having mistakenly encroached on parcel number **LAMBWE EAST/2070** while claiming ownership of a different parcel, namely **LAMBWE EAST/151**, which was the subject of an earlier sale agreement between the parties. He therefore urges the Court to dismiss the Plaintiff's claim. **THE PLAINTIFF'S CASE** 1. The Plaintiff testified as **PW1** and adopted his supporting affidavit, witness statement and bundle of documents as his evidence in chief. He produced the Grant of Letters of Administration, the title deed and an official search for parcel number **LAMBWE EAST/2070**. 2. His case is that he entered the suit property in the year **2000** while the registered owner, the late **Michael Abuto Ongeche**, was still alive. He testified that he openly, peacefully and continuously cultivated the entire parcel without interruption for over twenty-six years. According to him, neither the deceased nor his family objected to his occupation during the deceased's lifetime or thereafter. 3. During cross-examination, the Plaintiff admitted that he did not reside on the suit property but cultivated it. He further admitted entering into a sale agreement with the Defendant in respect of **LAMBWE EAST/151**, but maintained that the agreement related to a different parcel of land and that his claim before the Court concerned parcel **LAMBWE EAST/2070**. He denied that his occupation commenced after filing the present suit and insisted that he had been in possession since February 2000. 4. The Plaintiff called **PW2, Moses Odongo**, who testified that he knew both parties and confirmed that the Plaintiff had been cultivating the suit property from the year 2000. He stated that the deceased permitted the Plaintiff to cultivate the land and that the Defendant's family later relocated to Kabondo, leaving the Plaintiff in occupation. Although he referred to an agreement allowing the Plaintiff to cultivate the land, he conceded that he neither signed nor produced such agreement. 5. **PW3, Francis Ogola**, also testified in support of the Plaintiff's case. He stated that he had known the Plaintiff cultivating the suit property continuously since the year 2000. He confirmed that the Defendant's family relocated from Lambwe to Kabondo and that the Plaintiff had remained in occupation of the entire parcel. He further distinguished parcel number **151** from parcel number **2070**, stating that they belonged to different owners. 6. The Plaintiff's case is therefore that his occupation of the suit property has been open, exclusive, peaceful, continuous and uninterrupted for a period exceeding twelve years and that he has consequently acquired ownership by adverse possession. **THE DEFENDANT'S CASE** 1. The Defendant testified as **DW1** and adopted his witness statement and bundle of documents as his evidence in chief. He produced the death certificate of the deceased, the official search, the Grant of Letters of Administration, the Chief's letter and the sale agreement relating to parcel number **LAMBWE EAST/151**. 2. His evidence was that the suit property remained registered in the name of his late father, **Michael Abuto Ongeche**, who died in 2002 without ever selling or transferring the land. He denied that the Plaintiff had occupied or cultivated parcel number **LAMBWE EAST/2070** for the alleged twenty-four years. 3. The Defendant maintained that the Plaintiff had entered into a sale agreement with him concerning **parcel number LAMBWE EAST/151**, not parcel number **2070**. According to him, the Plaintiff mistakenly occupied parcel number **2070** while claiming entitlement to parcel number **151**, the two parcels being separate and owned by different persons. He further testified that parcel number **2070** originated from parcel **151**, although he acknowledged that they presently exist as distinct parcels. 4. During cross-examination, the Defendant admitted that his father never complained about the Plaintiff's occupation during his lifetime and that he himself did not institute any legal proceedings to recover possession of the land. He also acknowledged that the Plaintiff entered the land before the sale agreement of 2006 but maintained that the Plaintiff's occupation arose from that agreement and amounted only to a lease. 5. The Defendant called **DW2, Bernard Onditi Uma**, the area Chief, who testified that he assumed office in 2022 and had no personal knowledge of events preceding his appointment. He confirmed that he had never mediated any dispute between the parties and had never received any complaint from the Defendant regarding the Plaintiff's occupation. He however stated that he became aware that the Plaintiff was cultivating parcel number **2070** after the dispute arose. 6. It was therefore the Defendant's case that the Plaintiff had failed to establish the ingredients of adverse possession and that the suit property remained part of the deceased's estate. **ISSUES FOR DETERMINATION** Having considered the pleadings, the evidence tendered by the parties and their respective submissions, the issues that arise for determination are: 1. Whether the Plaintiff has proved that he has been in open, peaceful, continuous, exclusive and uninterrupted possession of **Land Parcel No. LAMBWE EAST/2070** for a period of at least twelve years. 2. Whether the Plaintiff's occupation of the suit property was adverse to the title of the registered proprietor. 3. Whether the Plaintiff's occupation, if any, arose from or was affected by the sale agreement relating to **Land Parcel No. LAMBWE EAST/151**. 4. Whether the Plaintiff has acquired title to **Land Parcel No. LAMBWE EAST/2070** by way of adverse possession. 5. Who should bear the costs of the suit. **DETERMINATION** 1. The Plaintiff seeks to be declared the owner of **Land Parcel No. LAMBWE EAST/2070** by way of adverse possession. The law governing adverse possession is principally found in Sections 7, 13 and 38 of the Limitation of Actions Act. Under Section 107 of the Evidence Act, the burden lies upon the Plaintiff to prove, on a balance of probabilities, every fact necessary to establish his claim. Consequently, the Plaintiff bears the legal burden of proving all the ingredients of adverse possession before this Court can deprive a registered proprietor of his title 2. Section 38(1) of the ***Limitation of Actions Act***, states that: ***“Where a person claims to have become entitled by adverse possession to land 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.*** 1. This section, ought to be considered along with sections 7 and 13 of the same Act. Section 7 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, on other hand provides that: ***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 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.*** 1. This Court in ***Peter Kamau Njau v Emmanuel Charo Tinga*** [2016] eKLR set out the circumstances under which the title of a registered owner may be defeated by a claim of adverse possession as follows; ***“A registered owner of land, may not, by the provisions of section 7 of the Limitation of Actions Act bring an action to recover land after the end of twelve years from the date on which the right of action accrued to him. At the expiration of that period the owner’s title will be extinguished by operation of the law. Section 38 of the Act permits the person in peaceful possession, without the land owner’s permission, for a continuous and uninterrupted period of 12 years, but who has also done acts on the land which are inconsistent with the registered owner’s enjoyment of the soil for the purpose for which he intended to use it, to apply to be registered as its owner.”*** 1. In ***Ndolo v Kitutu & 8 others* (Civil Appeal 394 of 2018) [2022] KECA 1289 (KLR) (18 November 2022) (Judgment)**, the Court held that: ***“For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted use of the land. The physical fact of exclusive possession and the animus possidendi to hold as owner to the exclusion to the actual owner are important factors in a claim for adverse possession. The principles stated in the above holding are also encapsulated in the local legislation referred to elsewhere in this judgment. The direct import of these two provisions is, firstly, that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued, which is the date of dispossession. Secondly, after the expiration of the said twelve years the title of the registered owner shall be extinguished. Thirdly, the person in adverse possession is entitled to a title by possession.”*** 1. What constitutes 'adverse possession' was described in the case of ***Jandu v Kirpal & Another*** [1975] EA 225 in which the court, while relying on the case of ***Bejoy Chundra v Kally Posonno*** [1878] 4 Cal 327 at p 329, held that: ***“By adverse possession I understand to be meant possession by a person holding the land on his own behalf, [or on behalf] of some person other than the true owner, the true owner having immediate possession. If by this adverse possession the statute is set running, and it continues to run for twelve years, then the title of the owner is extinguished and the person in possession becomes the owner.”*** 1. To determine the nature of possession, this Court is guided by the decision in ***Samuel Kihamba v Mary Mbaisi* [2015] eKLR** where this Court held: ***“Strictly, for one to succeed in a claim for adverse possession, one must prove and demonstrate that he has occupied the land openly, that is, without force, without secrecy, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land.”*** 1. The case of ***Wambugu v Njuguna* (1983) KLR 171** laid down the following guiding principles as regards adverse possession: ***1 The general principle is that until the contrary is proved possession in law follows the right to possess.*** * 1. ***In order to acquire by the statute of limitation title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.*** ***The limitation of Actions Act, in adverse possession contemplates two concepts, disposition and discontinuance of possession. The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite number of years.*** 1. ***Where the claimant is in exclusive possession of the land with leave and licence of the appellant in pursuance to a valid sale or agreement, the possession becomes adverse and time begin to run at the time the licence is determined. Prior to the determination of the licence, the occupation is not adverse but with permission. The occupation can only be either with permission or adverse; the two concepts cannot co-exist.*** 2. ***The rule on permissive possession is that possession does not become adverse before the end of the period during which the possessor is permitted to occupy the land.*** 3. ***Adverse possession means that a person is in possession in whose favour time can run.*** 4. ***Where the claimant is a purchaser under a contract of sale of land, it would be unfair to allow time to rum in favour of the purchaser pending completion when it is clear that he was only allowed to continue to stay because of the pending purchase because had it not been for the pending purchase the vendors would have evicted him. The possession can only become adverse once the contract is repudiated.*** 5. ***Where a claimant pleads the right to land under an agreement and in the alternative seeks an order based on subsequent adverse possession, the rule is the claimant’s possession as deemed to have become adverse to that of the owner after the payment of the last installment of the purchase price. The claimant will succeed under adverse possession upon occupation of at least 12 years after such payment.*** 6. From the above decisions, the ingredients of adverse possession are: ownership of the land by the person against the claim is made; open, continuous and exclusive possession of the land by the claimant for at least 12 years; assertion of right by the dispossessor which must be inconsistent with the rights of the owner. All these ingredients must be proved and where the claimant fails to prove any one of them, the claim to land, based on adverse possession, must fail. 7. The claimant must also prove open, continuous and exclusive possession of the land for at least 12 years. In this regard, it was held in ***Mbira v Gachuhi* (2002) I EALR 137** that: ***“……. a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period must prove non- permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutory prescribed period without interruption….”*** 1. It was therefore explained in ***Mtana Lewa v Kahindi Ngala Mwamgandi*** (2005) eKLR 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 or stealth or 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.”*** 1. The claimant must prove that he was in possession openly and that his possession was not through stealth or force. Possession arising from an order of the Court, therefore, does not amount to adverse possession since, in those circumstances, the owner of the land is prevented from asserting his rights. The possession, however, must be continuous and a break in the chain of possession, such as where the owner asserts his rights midway, creates a break in the running of time such that even if he loses possession the period prior to his regaining possession is not counted for the purposes of adverse possession. As held by the Court in ***Richard Wefwafwa Songoi v Ben Munyifwa Songoi* [2020] eKLR**: **“*For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted user of the land. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are important factors in a claim for adverse possession.*”** 1. Exclusivity of possession must also be proved by the claimant and therefore where the land in question under joint use by the claimant and other people, unless the claim is by all those in possession, the claimant cannot, on his own, unless he can identify a portion of the land exclusively occupied by himself, claim adverse possession of such land. It is also important that where the whole land is not occupied by the claimant, the claimant must identify what portion or part of the land is claimed by way of adverse possession. Regarding the need to identify the portions occupied, this Court in ***Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another* [2015] eKLR** stated that: **“*The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession.”*** 1. ***Court of appeal in M’Riria & 5 others v Muthomi (Civil Appeal 253 of 2019) [2025] KECA 951 (KLR) (4 April 2025)*** “The assertion of right by the dispossessor must be inconsistent with the rights of the owner. It does not suffice to simply aver that the claimant was in possession for more than 12 years. The claimant must adduce evidence of the steps or action taken with a view to asserting rights, which must be shown to be adverse to or inconsistent with the title of the valid owner. In other words, there must be an adverse incident in the possession, and that incident must be shown to be present right from the time the claimant takes possession of the land”. 1. In the present case, the Plaintiff testified that he entered the suit property in the year 2000 while the registered proprietor, the late Michael Abuto Ongeche, was still alive and thereafter cultivated the entire parcel continuously until the filing of this suit. His evidence was corroborated by PW2 and PW3, who both testified that the Plaintiff had cultivated the suit land from around the year 2000 and that the Defendant's family had relocated to Kabondo, leaving the Plaintiff in occupation. 2. However, the evidence presented by the Plaintiff is not without material inconsistencies. While the Plaintiff pleaded and testified that he entered the land without the permission of the registered proprietor, PW2 expressly stated during cross-examination that the deceased **gave the Plaintiff the land to cultivate** and that there existed an agreement between the Plaintiff and the deceased permitting such cultivation. If indeed the Plaintiff entered the land with the consent of the deceased, his occupation would have been permissive and could not amount to adverse possession. 3. The law is settled that possession enjoyed with the consent or permission of the registered owner cannot constitute adverse possession. In **Wambugu v Njuguna [1983] KLR 171**, the Court held that occupation can only be either permissive or adverse; the two concepts cannot coexist. Time does not begin to run while occupation remains permissive. Likewise, in **Samuel Kihamba v Mary Mbaisi [2015] eKLR**, the Court held that possession must be without licence or permission. PW2's testimony therefore fundamentally contradicts the Plaintiff's pleadings that his occupation was adverse from inception. 4. The Plaintiff also admitted that he entered into a written sale agreement with the Defendant concerning **Land Parcel No. LAMBWE EAST/151**. Although he maintained that the present claim relates to parcel number 2070, the Defendant's evidence was that parcel number 2070 originated from parcel number 151 and that the Plaintiff mistakenly occupied parcel number 2070 while pursuing his interest in parcel number 151. The sale agreement was produced as Defence Exhibit 5. 5. Where occupation originates from a sale transaction, the law is equally settled that possession remains permissive until the contractual relationship comes to an end. In **Wambugu v Njuguna (supra)**, the Court held that where possession arises from a sale agreement, time begins to run only after the licence or contractual relationship is terminated or the contract becomes incapable of completion. Consequently, even if the Plaintiff's occupation is connected with the sale transaction, he was required to demonstrate when, if at all, his occupation ceased being permissive and became adverse. No such evidence was placed before this Court. 6. Equally significant is the question whether the Plaintiff demonstrated acts inconsistent with the Defendant's ownership. Apart from cultivating the land, no evidence was produced showing that the Plaintiff asserted exclusive ownership against the registered proprietor. There was no evidence that he constructed permanent structures, established a homestead, excluded the owner from the land or otherwise exercised acts demonstrating ownership. Indeed, the Plaintiff admitted during cross-examination that he never resided on the suit property but merely cultivated it. 7. Further, the Defendant testified that his father cultivated the land during his lifetime and that the land had merely been left fallow for certain periods. He also stated that he reported the Plaintiff's activities to the area chief. Although the Chief confirmed that no formal complaint was received in his office, his testimony equally established that he only became aware of the Plaintiff's cultivation after assuming office in 2022 and therefore could not independently verify occupation dating back to the year 2000. 8. The Court must also consider the nature of the Plaintiff's evidence in light of Section 107 of the Evidence Act. The burden rested entirely upon the Plaintiff to prove each element of adverse possession. While there is evidence suggesting that the Plaintiff cultivated the suit property, cultivation alone does not automatically establish adverse possession. As emphasized by the Court of Appeal in **M'Riria & 5 Others v Muthomi (supra)**, mere occupation for twelve years is insufficient. The claimant must prove acts amounting to an assertion of ownership inconsistent with the title of the registered proprietor from the commencement of possession. 9. In the present case, the Plaintiff failed to discharge that burden. His own evidence is contradicted by that of PW2 regarding whether his entry onto the land was with permission. The evidence relating to the sale agreement concerning parcel number 151 further creates uncertainty as to the true basis upon which the Plaintiff entered and remained on the land. These contradictions cast doubt on whether the Plaintiff's occupation was adverse from inception, as required by law. 10. Accordingly, this Court is not satisfied that the Plaintiff has proved, on a balance of probabilities, that his occupation of **Land Parcel No. LAMBWE EAST/2070** was non-permissive, adverse, exclusive and uninterrupted for the statutory period of twelve years. The Plaintiff has therefore failed to establish the essential ingredients of adverse possession as required under Sections 7, 13 and 38 of the Limitation of Actions Act and as explained in the authorities cited above. 11. The Plaintiff's claim for adverse possession consequently fails. 12. The Court has considered whether there exist any special circumstances to warrant a departure from the general principle that costs follow the event. None have been demonstrated. Accordingly, there is no basis for denying the successful party the costs of the suit. The Plaintiff shall therefore bear the costs of this suit. 13. File closed. Judgment dated and delivered via teams’ platform at Homa Bay this 29th day of July 2026. In the presence of; * 1. Adeya for Nyakwamba for the Appellant- Present 2. Mimba for the Respondent -Present 3. Court Assistant; Bosibori. JUSTICE J.W WANYONYI-JUDGE 29/7/2026