Venah v Ogony & 3 others (Environment and Land Case 19 of 2023) [2026] KEELC 3078 (KLR) (21 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC SUIT NO. 19 OF 2023 (O.S)** **ERASTUS OKWOMI VENAH………………………………………APPLICANT** **VERSUS** **MAURICE AGENGO OGONY…………………….………..1ST RESPONDENT** **MONICA ATIENO OLOO………………….……………….2ND RESPONDENT** **LEONIDA ACHIENG AWALA………….………………….3RD RESPONDENT** **THE HON. ATTORNEY GENERAL** **(Sued on behalf of the County Land Registrar and** **District Land Surveyor, Kisumu)………………………4TH RESPONDENT** **JUDGMENT** The Applicant instituted this suit by way of Originating Summons dated 15th May 2023. The Applicant claimed to have been in actual possession of a portion measuring approximately 2 acres (the disputed land) of all that land parcel known as Title No. Kisumu/Kadongo/2688 (the suit property) for a period in excess of 12 years. The Applicant sought the following orders: 1. A declaration that the Applicant had become entitled to the disputed land by adverse possession in terms of sections 17 and 28 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, having occupied the same openly for an uninterrupted period of over 12 years. 2. A declaration that the Applicant had acquired an absolute title to the disputed land by way of adverse possession. 3. A declaration that the Applicant was entitled to be registered as the absolute proprietor of the disputed land by the Land Registrar. 4. A declaration that the Applicant had an overriding interest in the disputed land. 5. A declaration that the 1st Respondent had lost his legal right to claim the disputed land by operation of Section 7 of the Limitation of Actions Act, Chapter 22 Laws of Kenya. 6. That the costs of the suit be borne by the Respondents. The Originating Summons was supported by the affidavit of the Applicant sworn on 15th May 2023. The Applicant averred that the suit property was registered in the name of the 1st Respondent and that he had been in actual possession of the disputed land, which is a portion of the suit property, since 1999, for more than 12 years. The Applicant averred that since he took possession of the disputed land, he had occupied and used it openly, unhindered, and continuously. The Applicant averred that for the entire period he had been in occupation of the disputed land, the Respondents had taken no steps to have him evicted from the suit property. The Applicant averred that he had never seen the Respondents on the suit property until sometime in 2022, when the 1st Respondent came to the suit property claiming to be the registered proprietor thereof and destroyed the Applicant’s crops and trees which were on the disputed land. The Applicant averred that he had extensively developed the disputed land and had planted trees, grass, and subsistence crops thereon. The 1st Respondent opposed the Application through a replying affidavit sworn on 18th May 2023. The 1st Respondent averred that he was the registered owner of the parcel of land known as Title No. Kisumu/Kadongo/2688 (“the suit property”), a portion of which was being claimed by the Applicant. The 1st Respondent averred that he acquired the suit property free from any encumbrances from the 2nd and 3rd Respondents. The 1st Respondent averred that the Applicant had never occupied, cultivated, or carried out any activity whatsoever on the suit property that could be construed as adverse to the ownership interests of the Respondents in the property. The 1st Respondent averred that it was not disputed that the Applicant was not staying on the suit property. The 1st Respondent denied that the Applicant had acquired any beneficial interest in the suit property as at the date of filing the Originating Summons. The 1st Respondent averred that the Applicant lived on a different parcel of land and had never planted trees or cultivated the portion of the suit property, which he claimed measured 2 acres. The 1st Respondent contended that the Applicant had not acquired any interest whatsoever in the disputed land, whether by adverse possession or otherwise. The 2nd and 3rd Respondents opposed the Application through a joint replying affidavit sworn on 18th May 2023. The 2nd and 3rd Respondents averred that they were the former registered owners of the suit property. The 2nd and 3rd Respondents averred that they acquired the suit property through inheritance following the conclusion of the Maseno Succession Cause No. E10 of 2020, before they sold and transferred it to the 1st Respondent. The 2nd and 3rd Respondents denied that the Applicant had planted trees and cultivated subsistence crops on the disputed portion of the suit property. The 2nd and 3rd Respondents averred that the trees and crops on the suit property were planted by their family members over the years. The 2nd and 3rd Respondents averred that they were brought up on the suit property and that no one had occupied the property or any portion thereof without their express permission. The 2nd and 3rd Respondents denied that the Applicant had occupied the disputed land at any time. The 2nd and 3rd Respondents averred that the Applicant was occupying and living on a different parcel of land in the neighbourhood of the suit property, which he purchased, which did not form part of the suit property. The 2nd and 3rd Respondents denied that the Applicant had acquired any portion of the suit property by adverse possession, as at the date of the Originating Summons. The 2nd and 3rd Respondents prayed that the suit be dismissed with costs. The Originating Summons was heard through oral evidence. The Applicant gave evidence and called three witnesses in support of his case. The Applicant, Erastus Okwomi Venah (PW1), adopted his witness statement dated 11th December 2023 as his evidence in chief and produced several documents as exhibits. The Applicant stated that he was interested in a portion of the suit property measuring 2 acres (the disputed land). He stated that his homestead was on a land parcel with Title No. Kisumu/Kadongo/1931 (Plot No. 1931), which he acquired through purchase. He stated that Plot No. 1931 was adjacent to the suit property. He stated that he was claiming a portion of the suit property. He stated that when he settled on Plot No. 1931 with his family, the entire suit property was bushy. The Applicant stated that upon settling on Plot No. 1931, they began clearing and using the portion of the suit property he was claiming. He stated that they started clearing the disputed land in 1994. He stated that they were clearing the bush and cultivating the land. He stated that most of these activities were carried out by his parents because he was not staying at home at the time. He stated that he started taking an active part in the cultivation of the suit property upon the death of his mother and father in 1999 and 2000, respectively. He stated that they had planted trees and were also planting grass for cattle and food crops on the disputed land. He stated that after the death of his parents, he came back home and continued with the cultivation of the disputed land. He stated that the person who sold them Plot No. 1931 told them that the suit property belonged to Oloo Moi, who had disappeared. He told the court that no one claimed the portion of the suit property he was using. He stated that the Respondents were aware of his activities on the suit property. In cross-examination by the advocate for the 1st, 2nd and 3rd Respondents, the Applicant stated that he was told the suit property belonged to Oloo Moi, who had disappeared and had not been seen for a long time. He stated that his homestead was on Plot No. 1931, on which he had planted trees. He stated that he had also planted trees on the portion of the suit property in dispute. The Applicant stated that the trees he planted on the suit property were planted from 2005, while the trees in his homestead were planted from 2001. He stated that, apart from the trees the Respondents had cut, they had also destroyed cassava plantations, potatoes, and peas. He stated that the trees were ready for harvesting. He reiterated that he was occupying a portion of the suit property measuring 2 acres. He stated that he started using the disputed land in 1999 and had been actively using it since 2001. He stated that he did not purchase the portion of the suit property he claimed. In re-examination, the Applicant stated, among others, that the trees on the disputed land were planted from 2004 onwards, and that he had been cutting the trees and planting others. Linet Okwomi, who gave evidence as PW2, was the Applicant’s wife. She adopted her witness statement dated 11th December 2023 as her evidence in chief. She urged the court to grant the Applicant the disputed portion of the suit property, which he had been using for 24 years. In cross-examination by the 1st, 2nd and 3rd Respondents’ advocate, PW2 stated that the Applicant was a businessman in Kisumu, and that they were initially staying in Kisumu until 2010 when they moved back home after the death of the Applicant’s parents. She stated that they started planting trees in their homestead in 2005. She stated that the disputed land was being used by the Applicant’s parents, who started cultivating it in 1994. She stated that they took over the cultivation of the property from where the Applicant’s parents left it. She stated that the Applicant’s parents planted food crops and Napier grass on the disputed land. She stated that they also planted trees. She stated that some trees were planted by the Applicant’s father, while others were planted by them. She stated that the Applicant began planting trees on the disputed land in 2005 and was still doing so at the time of her evidence. PW2 stated that there was no dispute over the land until some people began cutting trees on it. She told the court that the suit property was owned by Oloo Moi, whom she did not know. She told the court that, apart from them, the suit property was also occupied by Maurice Agengo, James Aringo, Akinyi Otuoma and Hezekiah Odhiambo. The Applicant’s second witness was Phaustina Shinangoli Shikono (PW3). PW3 adopted her witness statement dated 11th December 2023 as her evidence in chief. She stated that she assisted the Applicant in planting trees on the disputed land, and that the 1st Respondent started claiming the suit property in 2023. In cross-examination by the 1st, 2nd and 3rd Respondents’ advocate, PW3 stated that she was born in 1993 and began living with the Applicant’s family in 2008, while they were living in Kisumu town, Kibuye area. She stated that when the family moved back home from Kisumu town, she moved with them. She stated that she assisted them in cultivating and planting trees on the disputed land. The Applicant’s last witness was Eliud John Okuomi (PW4). PW4 was the Applicant’s son. He told the court that he was a photographer, an animator, and a self-taught graphic designer. He stated that he took some photographs on the suit property on behalf of the Applicant. He produced the photographs in evidence as P.EXH 3 (a), (b), (c), (d), (e) and (f). He explained to the court the relevance of each photograph. He told the court that he used a drone to take the photographs. In cross-examination by the advocate for the 1st, 2nd and 3rd Respondents, PW4 stated that the portion of the suit property used by the Applicant was adjacent to his homestead, and there was a barbed wire fence separating the homestead and the area where the trees were planted. He stated that the Applicant had planted cassava, maize and Napier grass on the disputed land. The 1st Defendant, Maurice Agengo Ogony, gave evidence as DW1. He adopted his replying affidavit dated 18th May 2025 in response to the Originating Summons, and witness statement dated 23rd January 2024 as his evidence in chief. He produced the 1st, 2nd and 3rd Respondents’ bundle of documents dated 24th January 2024 as D.EXH.1 save for documents Nos. 10 and 15 in the list of documents which were marked as D.MFI. 2 and D.MFI. 3. He told the court that sometime while he was residing adjacent to the Applicant’s home, the Applicant informed him that he had acquired the suit property. He stated that the Applicant gave him a copy of a title deed and a certificate of search to confirm the claim that he was owing the whole land. In cross-examination by the Applicant’s advocate, the 1st Respondent stated that he was the owner of the suit property, and that he acquired the same in 2022. He stated that the suit property was about 5 acres. He stated that he had been cultivating the suit property before he purchased it. He stated that his homestead was about 100 meters from the suit property. He stated that he was leasing the land from the owners before purchasing it. He stated that the portion of the suit property that the Applicant claimed had not been cultivated by anyone for many years. He stated that the disputed land was adjacent to the Applicant’s home. The 1st Respondent stated that the Applicant gave him a fake title deed together with a search in proof of his claim that he was the owner of the suit property. He stated that the Applicant’s fake title was cancelled by the Land Registrar. He stated that the Applicant had never used the suit property. The Respondents’ second witness was Joel Juma Oliew (DW2). DW2 stated that he was the Assistant Chief for Upper Kadongo sub-location. He stated that the suit property was situated within his jurisdiction. He told the court that he received a complaint from the 1st Respondent that some people had entered the suit property and sold a portion of it. He stated that he summoned the concerned parties, Owiti Nyagambi and Otieno Okeyo, to his office and ordered them to stop any development on the suit property until the issue raised by the 1st Respondent was settled. He produced the letter dated 15th September 2012 as D.EXH. 3. In cross-examination by the Applicant’s advocate, DW2 stated that the persons against whom the complaint was made by the 1st Respondent had sold a portion of the suit property to Owiti Nyagambi. He stated that the portion sold was adjacent to the Applicant's homestead. He stated that he was aware that the Applicant was occupying part of the suit property. In re-examination, DW2 stated that he was not aware that the Applicant’s home was on another parcel of land. He stated that he had assumed that the parcel of land occupied by the Applicant and the suit property was one large parcel of land. The Respondents’ next witness was Felix Peter Okinyi (DW3). DW3 was an employee of the judiciary working at Maseno Law Courts as a Senior Court Assistant. He produced the court file for Maseno SPM Succession Cause No. 26 of 2017 as D.EXH. 14. The Respondents’ next witness was James Aringo Wamunga (DW4). DW4 adopted his witness statement dated 24th January 2024 as his evidence in chief. He stated that the Applicant was his maternal uncle. He stated that the Applicant lived adjacent to the suit property. He told the court that he introduced the Applicant to the person who sold him the land where he resided next to the suit property. He stated that he was one of the persons using the suit property. He stated that he had used the land since the 1990s. He told the court that it was not true that the Applicant had planted trees on the suit property. He told the court that the trees planted by the Applicant were on his land. He stated that the trees on the suit property were planted by other people. In cross-examination by the Applicant’s advocate, DW4 stated that he was not aware that the graves of the Applicant’s parents were partly on the suit property. DW4 stated that the Applicant’s parents were not using the suit property. DW4 stated that he had been leasing a portion of the suit property measuring 1 acre. He stated that the whole land measures 5 acres. He told the court that other people had also leased portions of the land. He gave the names of the people leasing the land as James Aringo, Maurice Agengo and Joseph Omondi Otuoma. DW4 told the court that the Applicant came up with a title deed for the suit property in 2020. He stated that the Applicant had never planted trees on the disputed land. He stated that the trees on the suit property were planted by the landowner in 2013. He told the court that the trees on the Applicant’s land were mature while those on the suit property were young. The Respondents’ next witness was Hezekia Odhiambo Wamunga (DW5). DW5 adopted his witness statement dated 24th January 2024 as his evidence in chief. DW5 stated that the Applicant was his maternal uncle and a neighbour where he was looking after a farm. He stated that he lived on the suit property. He stated that he had lived on the suit property since 2010. He told the court that the Applicant had not planted any trees on the suit property. He told the court that he had planted the trees on the suit property. He stated that the Applicant had never used the suit property. In cross-examination by the Applicant’s advocate, DW5 stated that he started working on the suit property in 2010, and did not know the status of the land before that time. He stated that he was not related to the 1st Respondent, but he was a village mate. He stated that only a portion of the suit property was leased out. He told the court that he planted trees on the suit property in 2013 at the instruction of the 2nd and 3rd Respondents. He stated that he planted trees on the boundary between the suit property and the Applicant’s home/land. He stated that he was engaged to guard the property because there was a dispute over it. He stated that he had been given a place to live on the suit property. In examination by the court, DW5 stated that he attended the funeral of the Applicant’s father, and that he was buried in the Applicant’s home and not on the suit property. He stated that he had no personal differences with the Applicant. He stated that DW4 was his brother. The Defendants’ last witness was the 3rd Respondent, Leonida Achieng Awala (DW6). DW6 adopted his witness statement dated 26th January 2024 as her evidence in chief. She stated that the suit property was ancestral land that originally belonged to her grandfather. She told the court that the Applicant’s land bordered the suit property. She stated that the Applicant bought the land where his home was situated from Atieno Oguna, who was her (DW6) deceased mother. She stated that the Applicant had not yet obtained a title for the land he was occupying. She stated that she was a beneficiary of the estate of Atieno Oguna. She stated that Oloo Moi, who was registered as the owner of the suit property, was her cousin. She stated that her father was the eldest in the family, followed by Oloo Moi's father. DW6 stated that Oloo Moi was the owner of the suit property prior to its sale to the 1st Respondent. She stated that they did succession and sold the suit property to the 1st Respondent. She denied that the Applicant had planted trees on the suit property. She stated that there were trees on the suit property that she had planted. In cross-examination by the Applicant’s advocate, DW6 stated that she got married in 1980. She stated that her father was Silvanus Odede. She stated that her father had brothers: Moi Otiende and Oguna Otiende. She told the court that Oloo Moi was the son of Moi Otiende. She stated that Oloo Moi disappeared before she was born. She stated that she used to lease the suit property to the 1st Respondent. She stated that the suit property shared a boundary with the Applicant’s home. She stated that she was not aware that the Applicant had occupied a portion of the suit property for over 12 years. She stated that the Applicant created a fake title for the suit property. She stated that she planted trees on the suit property in 2013. She stated that the suit property had been leased out for several years. In re-examination, DW6 stated that before she sold the suit property, she had leased the land to four people. She stated that the entire land was leased. After the close of evidence, the parties made written closing submissions. The 4th Respondent neither tendered evidence nor filed closing submissions as directed by the court. **The Applicant’s submissions** The Applicant filed submissions dated 6th May 2025. The Applicant framed the following issues for determination: 1. Whether the Applicant had acquired title to a portion of the suit property measuring approximately 2.0 acres by adverse possession. 2. Whether the 2nd and 3rd Respondents should transfer the said portion of the suit property measuring approximately 2.0 acres to the Applicant. 3. Who is liable for the costs of the suit? The Applicant cited the cases of Kimani Ruchine & Another *v.* Swift Rutherford Co. Ltd & Another [1977] KLR, Wambugu *v*. Njuguna [1983] KLR 173 and Gabriel Mbui *v*. Mukindia Maranya [1983] eKLR and submitted that he had satisfied all the ingredients of adverse possession. The Applicant submitted that he had proved his case against the Respondents on a balance of probabilities, and was entitled to the orders sought together with the costs of this suit. The Applicant raised an objection to the replying affidavit by the 2nd and 3rd Respondents. I find no merit in the objection, as it was raised for the first time in the submissions. The issue was never raised at the trial. In any event, I find no law that bars parties from jointly swearing an affidavit. **The 1st, 2nd and 3rd Respondents’ submissions** The 1st, 2nd and 3rd Respondents (the Respondents) filed submissions dated 16th May 2025. The Respondents framed the following issues for determination: 1. Whether the Applicant planted the trees on the disputed portion of the suit property, and what was the age of those trees? 2. Whether the Applicant had proved, on a balance of probabilities, that the disputed portion of the suit property covered by the said trees measured approximately 2 acres, as alleged in the pleadings. 3. When does the time begin to run in favour of an adverse possessor against a registered proprietor or their successors in title, in a case where the registered proprietor has been declared dead under Section 118A of the Evidence Act; and upon such determination, whether the Applicant’s claim satisfies the statutory period of twelve (12) years? 4. Whether the Applicant had proved, on a balance of probabilities, that he was in open, peaceful, and uninterrupted possession of the disputed portion of the suit property, with the knowledge of the registered proprietor. 5. Whether the Applicant’s claim had disclosed any reasonable cause of action against the 2nd and 3rd Respondents to justify their inclusion in these proceedings as parties rather than as witnesses. 6. Who should bear the costs of this suit? The Respondents submitted that it was not in dispute that the disputed portion of the suit property was under a tree plantation. The Respondents submitted that the Applicant claimed to have planted the said trees beginning in 2005, suggesting that the oldest among them was approximately 18 years old by the time the suit was instituted in Court. The Respondents submitted that the Applicant claimed to have settled his parents on an adjacent parcel of land in 1991, and that his parents cultivated the disputed land until their demise in 2000. The Respondents submitted that the Applicant testified that he began active cultivation and tree planting on the disputed land only after his parents' demise. The Respondents submitted that the Applicant was not in actual possession of the disputed land prior to 2000, when, if at all, it was occupied by his parents. The Respondents submitted that the Applicant claimed that the disputed portion of the suit property measured approximately 2 acres. The Respondents submitted that the Applicant failed to produce any evidence, in the form of a survey report or otherwise, to substantiate this assertion. The Respondents submitted that in a claim for a portion of land by adverse possession, the extent of the land claimed must be clearly identified and proved to the requisite standard. In support of this submission, the Respondents relied on Peter Okoth *v.* Ambrose Ochido Andajo & Benedict Odhiambo Oketch [2021] eKLR. The Respondents submitted further that Section 7 of the Limitation of Actions Act provides that no action may be brought to recover land after the expiration of twelve (12) years from the date on which the right of action accrued. The Respondents submitted that it was not disputed that the registered proprietor of the suit property Oloo Moi was presumed dead pursuant to a court order made on 30th June 2020, following his prolonged disappearance. The Respondents submitted that the 2nd and 3rd Respondents, who were the cousins of Oloo Moi became the registered proprietors of the suit property on 20th December 2021 and transferred the property shortly thereafter to the 1st Respondent, who became the new registered proprietor thereof on 31st March 2022. The Respondents submitted that although the 2nd and 3rd Respondents became registered as proprietors of the suit property through succession, they could not properly be deemed "successors in title" for the purposes of adverse possession until the fact of the original proprietor’s death was judicially established by the court order. The Respondents submitted that the original registered proprietor of the suit property, Oloo Moi, was formally declared dead by the court on 30th June 2020. The Respondents submitted that any claim for adverse possession against his estate or successors through transmission could only begin to accrue from that date. The Respondents submitted that the Applicant’s claim fell short of the statutory threshold of twelve (12) years prescribed under Section 7 of the Limitation of Actions Act. The Respondents submitted that a person claiming land by adverse possession must demonstrate that his/her occupation was open, continuous, peaceful, and uninterrupted for the entire statutory period of twelve (12) years. The Respondents submitted that such possession must be either with the knowledge of the registered proprietor or exercised in a manner that ought reasonably to have come to their knowledge. The Respondents submitted that the mere occupation or use of land, without satisfying these essential elements, is insufficient to ground a valid claim for adverse possession. In support of this submission, the Respondents relied on Wines & Spirits Kenya Limited & another *v*. George Mwachiru Mwango [2018] eKLR. The Respondents submitted that it was not disputed that Oloo Moi, the original registered owner of the suit property, left his home in the 1930s and was never seen or heard from again. The Respondents submitted that his eventual declaration as deceased by the court underscored the fact that even his own family had no means of contacting him. The Respondents submitted that Oloo Moi, the original registered proprietor of the suit property, could not have had either actual or constructive knowledge of any alleged adverse use of his land by the Applicant. The Respondents submitted that this absence of knowledge or reasonable opportunity to know on the part of Oloo Moi of the Applicant’s alleged occupation of the suit property was fatal to the Applicant’s claim. The Respondents submitted that the Applicant’s claim of continuous, peaceful, and uninterrupted possession of the disputed land was wholly untenable in light of the foregoing. The Respondents submitted that the joinder of the 2nd and 3rd Respondents to this suit was improper and unwarranted, as no reasonable cause of action had been disclosed against them. The Respondents submitted that, at the date of the institution of the Applicant’s claim on 15th May 2023, neither the 2nd nor the 3rd Respondent was the registered proprietor of the suit property, the property having been transferred and registered in the name of the 1st Respondent on 31st March 2022. The Respondents submitted that since the 2nd and 3rd Respondents were not registered as the owners of the suit property when the adverse possession claim was instituted, the claim could not properly lie against them. Regarding costs, the Respondents submitted that costs follow the event. The Respondents submitted that the Applicant had failed to prove his case on a balance of probabilities, thereby entitling the 1st Respondent to costs. **Analysis and Determination** I have considered the pleadings, the evidence tendered, and the submissions filed by the advocates for the parties. The suit before the court being an adverse possession claim; the only issues that arise for determination in my view are: whether the Applicant has established the elements of adverse possession in relation to the portion of the suit property that he is claiming, whether the Applicant is entitled to the reliefs sought in his Originating Summons, and who should bear the costs of the suit. The parties have cited several cases on adverse possession, some of which I will refer to in this judgment. In Gabriel Mbui *v.* Mukindia Maranya (supra), cited by the Applicant, the court stated that a person claiming land by adverse possession must establish on a balance of probabilities the following elements: 1. **The person claiming land by adverse possession must make physical entry and be in actual possession or occupancy of the land for the statutory period.** 2. **The entry and occupation must be with, or maintained under, some claim or colour of right or title made in good faith by the stranger seeking to invoke the doctrine of adverse possession as against everyone else.** 3. **The occupation of the land by the intruder who pleads adverse possession must be non-permissive use, i.e. without permission from the true owner of the land occupied.** 4. **The non-permissive actual possession hostile to the current owner must be unequivocally exclusive, and with the evinced unmistakable *animus possidendi*, that is to say occupation with clear intention of excluding the owner as well as other people.** 5. **Acts of user by the person invoking the statute of limitation to found his title are not enough to take the soil out of the owner or his predecessors in title and to vest it in the encroacher or squatter, unless the acts be done which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it.** 6. **The possession by the person seeking to prove title by adverse possession must be visible, open and notorious, giving reasonable notice to the owner and the community of the exercise of dominion over the land.** 7. **The possession must be continuous uninterrupted, unbroken for the necessary statutory period.** 8. **The rightful owner or paper title holder against whom adverse possession is raised must have an effective right to make entry and to recover possession of the land throughout the whole of, and during, the statutory period.** 9. **The rightful owner must know that he is ousted. He must be aware that he had been dispossessed, or he must have parted and intended to part with possession.** 10. **The land, or portion of the land adversely possessed must be a definitely identified, defined or at least an identifiable portion, with a clear boundary or identification. The absence of a plot or title number need not present any difficulty, nor should it be a bar to establishing a claim of adverse possession.** In Kimani Ruchine & Another *v*. Swift, Rutherford Co. Ltd. & another (supra), also cited by the Applicant, Kneller J. stated as follows at page 16: **“The Plaintiffs have to prove that they have used this land which they claim as of right, necvi, nec clam, necplecario (no force, no secrecy, no evasion) …The possession must be continuous. It must not be broken for any temporary purposes or by any endeavours to interrupt it or by any recurrent consideration.”** In Githu *v*. Ndeete [1984] KLR 776 it was held that: 1. **“Time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his rights or when his right is admitted by adverse possessor. Assertion occurs when the owner takes legal proceedings or makes an effective entry into land. Giving notice to quit cannot be effective assertion of right for the purpose of stopping g the running of time under the Limitation of Actions Act.** 2. **A title by adverse possession can be acquired under the Limitation of Actions Act to a part of the parcel of land which the owner holds title.”** In Mombasa Teachers Co-operative Savings & Credit Society Limited *v*. Robert Muhambi Katana & 15 others [2018] eKLR, the Court of Appeal stated as follows: “**19. In computing the requisite statutory time, the date on which a party entered possession without consent of the title holder is of significance. It is from that date that the requisite time frame begins to run. In this case, the respondents claim was that they had entered into possession of the suit property and their rights thereon had crystalized prior to the purchase of the suit property by the appellant. It is without doubt that mere change of ownership of the land which is occupied by another under adverse possession does not interrupt time from running in that other person’s favour. See Titus Mutuku Kasuve vs. Mwaani Investments Limited & 4 Others (supra).** **20. We cannot help but note that the evidence tendered in support of the respondents’ case was by five respondents. These respondents only gave evidence in relation to the dates they each entered into possession of the suit property. There was no evidence to show that such possession was without the consent of the former registered owner. The photographs of the structures erected on the suit property could equally not establish the absence of consent from the previous registered owner. In addition, we, unlike the learned Judge, find that no further evidence was given with respect to when the other respondents took possession. Without such evidence there was nothing to support the respondents’ contention that they had been in adverse possession of the suit property prior to the appellant’s title.** **21. Even if we were to accept that the five respondents who testified had established that they had been in an open and uninterrupted occupation of the suit property in excess of 12 years after the appellant acquired title still their claim fell short. There is a further problem because none of them tendered any evidence with regard to identifiable portion(s) of the suit property which they each occupied which was essential to their claim. More so, taking into account that there were allegations that apart from the respondents over 200 people were also in occupation of the suit property. In Wilson Kazungu Katana & 101 Others vs. Salim Abdalla Bakshwein & Another [2015] eKLR this Court observed: -** **“The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession. This was so stated by this Court in the case of Githu vs. Ndele [1984] KLR 776. The appellants did not discharge the burden of proving and specifically identifying or even describing the portions, sizes and locations of those in their respective possession from the larger suit premises that they sought to have decreed to them.”** In the same case, the court stated as follows: **“18. Likewise, it is settled that a person seeking to acquire title to land by of adverse possession must prove non permissive or non-consensual, actual open, notorious, exclusive and adverse use/occupation of the land in question for an uninterrupted period of 12 years as espoused in the Latin maxim, *nec vi nec clam nec precario*. See *Jandu vs. Kirplal & Another (1975) EA 225*. In other words, a party relying on the doctrine bears the burden of demonstrating that the title holder has lost his/her right to the land either by being dispossessed of it or having discontinued his possession of it for the aforementioned statutory period. See this Court’s decision in *Wambugu vs. Njuguna [1983] KLR 173*. Did the respondents discharge this burden?”** It is on the foregoing principles that the Applicant’s claim falls for consideration. The Applicant claimed that he had been in actual possession of a portion of the suit property measuring 2 acres since the year 1999, a period of over 20 years at the time he brought this suit in 2023. The Applicant claimed that his possession of the said portion of the suit property and use thereof had been open, unhindered and continuous. The 1st Respondent, on the other hand, claimed to be the registered owner of the suit property. The 1st Respondent claimed that he bought the suit property from the 2nd and 3rd Respondents. The 1st Respondent contended that the Applicant lived on a different parcel of land and had never planted trees or cultivated the alleged portion of the suit property measuring 2 acres. The 2nd and 3rd Respondents contended that they were the former registered owners of the suit property, having inherited the same from the original owner, Oloo Moi, in Maseno Succession Cause No. E10 of 2020. The 2nd and 3rd Respondents contended that the Applicant had never planted trees, cultivated or occupied any portion of the suit property. The Applicant, in his testimony, told the court that he lived on the parcel of land known as Kisumu/Kadongo/1931(Plot No. 1931), which was adjacent to the suit property. The Applicant’s case was that he occupied the disputed portion of the suit property by cultivating subsistence crops and planting trees thereon. The Applicant told the court that his parents used to plant trees and cultivate the disputed portion of the suit property, and that, upon their deaths, he began using the land in 2000. The Applicant told the court that he started planting trees and cultivating the suit property in 2005. It is common ground that the suit property, which measured 2 hectares (approximately 5 acres), was registered in the name of Oloo Moi as the first registered owner. It is common ground that Oloo Moi disappeared in the 1930s and has not been seen since then. The Applicant told the court that he was aware of this fact. The suit property was registered in the name of Oloo Moi during the land adjudication, in the hope that he would return home to Kisumu Kadongo, but that never happened. Following an application made by Monica Atieno Aloo, the 2nd Respondent herein in Maseno Succession Cause No. 26 of 2017, the court ordered on 30th June 2020 that Oloo Moi be presumed dead, and a death certificate be issued to the 2nd Respondent. The 2nd Respondent subsequently applied for a Grant of Letters of Administration intestate in respect of the estate of Oloo Moi in the Senior Principal Magistrate’s Court at Maseno, Succession Cause No. E10 of 2020, and was issued with a Grant in respect of the estate of the deceased. The 2nd and 3rd Respondents were subsequently registered as the owners of the suit property as tenants in common in equal shares following the confirmation of the said Grant of Letters of Administration on 18th August 2021. The 2nd and 3rd Respondent thereafter sold and transferred the suit property to the 1st Respondent on 31st March 2022. It is not clear to the court where the Applicant obtained the information that the 1st Respondent was registered as the owner of the suit property in 2023. That claim in the Applicant’s submission is not supported by the evidence on record. I find the Applicant’s case not proved to the required standard. First, the Applicant did not tell the court how his parents, who were residing on Plot No. 1931 adjacent to the suit property, came to enter the suit property, if at all. The court was also not told whether they entered the disputed portion of the suit property, if at all, thinking that it was part of Plot No. 1931 or with the knowledge that it belonged to Oloo Moi, and with the intention of dispossessing Oloo Moi of the same. The same applies to the Applicant who claimed to have taken over the disputed portion of the suit property from his parents. Secondly, there was no evidence of cultivation by the Applicant on the disputed portion of the suit property. The evidence produced in court showed a tree plantation which was claimed by both the Applicant and the 2nd and 3rd Respondents. There was no evidence that the trees were planted by the Applicant rather than the 2nd and 3rd Respondents. I found the evidence presented against the Applicant’s claim that he and his parents planted the trees on the disputed portion of the suit property to be compelling. Some of the witnesses who gave evidence against the Applicant on this aspect of his case were his relatives. There was no reason why the said witnesses could have lied to the court. Their evidence was not shaken on cross-examination. Thirdly, there was no evidence showing the exact measurement of the portion of the suit property claimed by the Applicant. There was no basis for the Applicant's claim to be occupying a portion of the suit property measuring 2 acres. The court was just shown photographs with markings indicating an area alleged to be occupied by the Applicant within a tree plantation. The markings had no measurements, approximate or otherwise. The photographs produced in evidence by the Applicant show that the Applicant’s homestead is next to the suit property. There was no clear evidence as to where the Applicant’s Plot No. 1931 ended and where the portion of the suit property claimed by the Applicant started and ended. Finally, I agree with the Respondents’ contention that, if the Applicant was in possession of the disputed portion of the suit property, it was without the knowledge of the original registered owner, Oloo Moi. The Applicant told the court that when he settled on Plot No. 1931, which is adjacent to the suit property, he was informed that the owner of the suit property, Oloo Moi, had disappeared. There was therefore no way in which Oloo Moi could have known of the Applicant’s occupation of the said portion of the suit property. Section 80(2) of the Law of Succession Act, Chapter 160 Laws of Kenya provides as follows: **“A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of the grant.”** I am of the view that, in the circumstances of this case, it was not until Oloo Moi was presumed dead and a Grant of Letters of Administration intestate in respect of his estate was issued to the 2nd and 3rd Respondents in 2021 that time could start running for the purposes of adverse possession of the suit property that was owned by him. Oloo Moi had no way of knowing about the Applicant’s occupation of the disputed portion of the suit property, as he had disappeared in the 1930s, even before the suit property was registered in his name. It was not until he was presumed dead and a legal representative of his estate appointed that it could be said that there was someone who could have knowledge of the encroachment, and against whom time could run. In Wines & Spirits Kenya Limited & another *v*. George Mwachiru Mwango [2018] KECA 293 (KLR) cited by the 1st, 2nd and 3rd Respondents, the Court of Appeal stated as follows on the running of time for the purposes of adverse possession: **“[19] This brings us to the second issue as to when computation of time for purposes of adverse possession started. The respondent stated that though he had been living on the land all his life, he only came to know of the 2nd appellant in 2012 when the 2nd appellant came to fence the land. It is evident from that admission that the appellant only learnt of the invasion to his property in 2012. The law is clear on when time starts running for purposes of adverse possession. The possession or occupation must be with the knowledge of the registered owner (See Kimani Ruchine & Another vs. Swift Rutherford & Co. Ltd (1980)*supra*. Time cannot therefore start running until the registered owner becomes aware that there is a trespasser occupying his/her property and does nothing to assert his rights on the property for at least 12 years. That being so, time in this case only started running in 2012. Immediately thereafter, the appellants had the respondent evicted from the suit premises. Even as at the time they filed their claim before the High Court, they had already been evicted. It was evident therefore that the respondent was not in actual possession for over 12 years as alleged.”** On the issue of costs, Section 27 of the Civil Procedure Act, Chapter 21 Laws of Kenya provides that costs of and incidental to a suit is at the discretion of the court. The Applicant has failed to prove his claim against the Respondents and is therefore not entitled to the costs of this suit. **Conclusion** In conclusion, I find no merit in the Applicant’s suit against the Respondents. The Originating Summons dated 15th May 2023 is dismissed with costs to the 1st, 2nd and 3rd Respondents. The Deputy Registrar shall return the original court file for Maseno Senior Principal Magistrate’s Court Succession Cause No. 26 of 2017, which was produced as an exhibit in this matter to that court. **Written and signed at Nairobi by**  **S. OKONG’O** **JUDGE** **Delivered, dated and countersigned at Kisumu this 21st day of May 2026** **E.ASATI** **JUDGE** Judgment delivered virtually through Microsoft Teams Platform in the presence of: No appearance for the Applicant Odhiambo D. for the 1st ,2nd and 3rd Respondents No appearance for the 4th Respondent Atika - Court Assistant