https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4807

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC NO. 106 OF 2016 (OS)** **IN THE MATTER OF LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA** **AND** **IN THE MATTER OF L.R NO. BUNYALA/BUKOMA/306** **AND** **IN THE MATTER OF A CLAIM FOR ADVERSE POSSESSION** **BETWEEN** **JOSEPH WANDERA OBWORA……………………..........APPLICANT** **VERSUS** **OKOCHI OPONDO………………………..…………………RESPONDENT** **JUDGMENT** 1. By an Originating Summons dated 31st August 2016, the applicant instituted this suit seeking to be declared to have acquired 1 acre of land comprised in the parcel of land known as L.R No. Bunyala/Bukoma/306 (Suit property) currently registered in the name of the respondent by adverse possession. 2. In the affidavit sworn in support of the suit, the applicant depones that the portion of land he claims was given to his grandmother, the late Cecilia Sumba, by the respondent’s father; that his family has been in use and possession of the portion of the suit property he claims since 1962; that the suit property is his ancestral land and that his use of the portion of the land he claims has been quiet, peaceful and notorious. 3. When the suit came up for hearing, the plaintiff adopted the averments contained in his supporting affidavit as part of his evidence. The applicant informed the court that he had been living the suit property with his brother (now deceased) and that his mother, wife and brother are buried in the parcel of land he claims. 4. In cross examination, the plaintiff stated: - **“Between me and Agomba, Agomba is son to Cecilia Sumba. The land was given to Cecilia Sumba. The defendant came to the land in the year 2006 when he came and build on the land. The land is registered in the name of the defendant but the defendant was living elsewhere. When he called me to build his house, it was in accordance of our customs…I do not know the name of the mother to Cecilia Sumba. Your father is not the only son in their house. You did not file a report in this case to stop burial of my brother”.** 1. In further cross examination, the plaintiff stated as follows: - **“I am claiming our land. The claim is brought against the defendant.** **I am because I was born and brought up on the suit land, 306. I am claiming one acre out of the suit land. Even the defendant knows we are living on one acre. I have an agreement signed between me and the defendant where he gave me the portion I am living on. I do not have a report that confirms that is where I live…”** 1. In re-examination, the defendant stated he was living in their home on a different parcel of land not on parcel 306; that Cecilia Sumba is his paternal grandmother and an Aunt to the defendant’s father. He further stated that other than the disagreement they had for a day they had been living in peace. 2. The respondent filed a replying affidavit dated/sworn on 17th April, 2026 in which he acknowledges that the applicant’s family was given a portion of land comprised in the suit property but denies the applicant’s claim that the applicant’s family was given 1 acre. According to the respondent, the applicant’s family was given ½ acre by his father, Opondo Obinda. The respondent claims that the applicant extended the portion of land given to a portion meant for him and six other persons he accommodates in the suit property. 3. Terming the applicant’s claim invalid, the respondent depones that the applicant’s stay on the land has been permissive and on account of close family ties hence incapable of forming the basis of the applicant’s claim for adverse possession. 4. During hearing, the defendant relied on the averments contained in his replying affidavit dated 17th April, 2026 after it was adopted as his evidence in chief. He produced a certificate of official search in respect of the suit property as **Dexbt 1**, green card in respect of the suit property as **Dexbt 2** and the title deed for the suit property as **Dexbt 3**. 5. The defendant informed the court that while his father was alive, he gave a portion of land to Cecilia Sumba (½ an acre) who is the grandmother to the applicant. The defendant also informed the court that he is ready to give the applicant’s family ½ an acre which is available on the ground. 6. On cross examination, the defendant stated as follows: - **“…the land was registered in my father’s name on 20.5.1979. it was issued with a title deed on 20.5.2002. in paragraph 6 I have stated that Cecilia came and requested my father for land in 1974. My father gave her ½ acre. After I obtained my title deed in 2002, I did not chase away the family of Cecilia because they had settled on the land, ½ acre, my father had given them. They are only entitled to ½ an acre not one acre. I am not willing to give them an extra ½ acre.** **No survey has been done. Long ago when the boundaries were established measurements was done by the elders using footsteps.”** 1. In re-examination, the defendant stated as follows: - **“Cecilia was a grandmother of the applicant. She left her home because it had flooded. When she was given land by my father she settled on the ½ acre with her 2 children and I have never removed them from the ½ an acre. There are other 7 relatives who have settled on the land who were also given portions of land by my father. If the applicant is to be given more than ½ acre, his family is entitled to, the other 7 relatives and their families will not have land”.** 1. At close of hearing the parties filed submissions which I have read and considered. 2. In his submissions dated19th May 2026, the applicant has submitted and/or addressed the court as follows: - **“...In his replying affidavit sworn on the 17th April 2026 paragraph 14 the Respondent states that the Applicant was on the land by virtue of the permission granted by his father. At paragraph 15 that the Applicant remains a tenant at will who should be kicked out.** **It is our submission that the respondent should not be allowed to blow both hot and cold at the same time. in the said affidavit he claims that permission was given. In cross examination in court he admits that he did not give the applicant permission to stay on the suit land.** **It should be noted that it was the respondent’s father who gave the applicant’s grandmother permission to shelter on the suit land from floods in 1962. This was even before the land was registered in the name of the respondent’s father. Pexbt 2-Green Card for Bunyala/Bukoma/306. The grandmother and her sons died. The father of the respondent died. Who gave the applicant permission to stay on the land. No proof of permission was tendered….** **The doctrine of adverse possession has been laid down in Kenya by the Court of Appeal in the case of Mtana Lewa vs. Kahindi Ngala Mwagandi Civil Appeal No. 56 of 2014 (2015) e KLR thus:-** ***“Adverse possession is essentially a situation where a person takes possession of land and asserts right 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 it 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. The doctrine in Kenya is embodied in section 7 of the Limitation of Actions Act…”*** **We submit that the applicant has met the requirements to be granted his prayers in the originating summons issued herein with costs.”** 1. On his part, the respondent in his submissions dated 22nd May 2026, has submitted as follows: -. **“…the originating process and claim for adverse possession should be dismissed due to the following reasons;** **The applicant is the grandson to the respondent’s step-aunt who was welcomed by the respondent’s father as a close family member for a temporary stay in order to save her from the calamity of floods at her marital home at the place called Obaro and which place falls within Oseko area of Bunyala sub County.** **Such lawful and permissive entry of a close family in the name of Cecilia Sumba on the ancestral block of land in the year1962 before the suit lands registration remains to be permissive occupation and the same character of occupation was accommodated by the respondent’s father Opondo Obinda and the respondent himself. This respondent did not wish to eject the applicant and his uncle’s family members. The respondent in line with what his father had done in welcoming the applicant’s grandmother has offered to grant the applicant the portion of ½ acre so that the respondent can be able to also accommodate the 6 other families that were welcomed due to floods.** **The basic character of the applicant’s occupation is permissive and it flows from the previous permissive settlement of his grandmother as a close family member of Opondo Obinda. Occupation by close family relatives cannot change the character of such permissive possession by converting it to constitute adverse possession. the applicant’s witness statement reads thus;** ***“6. In the year 1962, the floods came and displaced them.*** ***7. the late Opondo Obinda who was a brother to my grandmother the late Cecilia Sumba gave her 1.0 Acre out of L.R No.Bunyala/Bukoma/306 to stay there with her family.*** ***8. My grandparents and my parents settled on the said portion, I was born there in the year 1976 and my grandparents were also buried there.*** ***9. My occupation in the said land has been quiet, peaceful and notorious and the whole world knows that this parcel of land belongs to my family.*** ***10. My family has been in actual possession of the said land for fifty years now while I have been in actual possession of the suit land for forty years since I was born.*** ***11. I have built my home and I stay with my family in the said land. I also do small scale farming.”*** **The applicant’s statement above plus our prior representations prove that the applicant’s possession and that of his predecessors, father and grandmother were all under licence and permission of Opondo Obinda and the respondent acting on the respect of his departed father failed to disturb his father’s permission to his step-sister’s family to settle on part of the suit land. It does not amount to adverse possession. Consequently, the suit should fail.** **The applicant’s contention that he is claiming by adverse possession for having been born and raised on the suit land negates his claim. The applicant was not born to a purchaser parent on the suit land. He was born to the respondent’s step-aunt. His claim is therefore outside the realm of adverse possession.”** 1. In support of his submissions, the respondent has made reliance on the decision in the case of **Samuel Kihamba vs Mary Mbaisi (2015) e KLR** where the Court of Appeal inter alia stated/held: - **“…It is therefore inevitable to state that the Court must take extreme caution in the determination of the consent given by an owner of land to a relative and be able to determine when such consent was withdrawn. This determination is a matter of fact and we are persuaded by the analyses of the Judge in the case of Mwambonje (supra) that the burden of proof is on the claimant. The person invoking the doctrine of adverse possession must prove that his occupation was adverse to the owner of the suit land. He must prove that the occupation was without the consent of the owner of the suit land. Further, even if he had entered the land with consent of owner, he may also have to prove that the consent was later withdrawn but he, nonetheless, continued to occupy the land in excess of 12 years after withdrawal of the consent. See Susan Mumbi Waititu & 2 others v Mukuru Ndata & 4 others (2008) e KLR…”** 1. The respondent urges the court to dismiss the applicant’s suit with costs to him. 2. From the pleadings, evidence and submissions, I find the sole issue for the court’s determination is whether the plaintiff/applicant has made up a case for being granted the orders/reliefs sought in his suit. 3. The instant case being a claim to entitlement of a portion of land based on the doctrine of adverse possession, and the applicant’s entry into the suit property having been on account of the permission or license granted to his grandmother, Cecilia Sumba, by the respondent’s father; to succeed in his claim for adverse possession in respect of the suit property or a portion thereof, the applicant is required to demonstrate that the consent pursuant to which he entered into the suit property or his predecessor in entitlement to the suit property was terminated by the owner and that he continued living in the suit property or an identifiable portion thereof for a period exceeding 12 years. In that regard the case of **Samuel Kihamba vs Mary Mbaisi** *(supra).* 4. In the case before the Court, it is not in dispute that the applicant’s use and occupation of a portion of the suit property is on account of permission or licence given to his grandmother, Cecilia Sumba by the previous owner of the suit property, who was a relative of the said Cecilia Sumba, and by extension the applicant herein. 5. In his evidence, the applicant has clearly stated that he was born in the portion of the suit property and that his family has been living in the suit property on account of the fact that they were given a portion thereof by the original owner. 6. In his pleadings and evidence, the respondent admits/acknowledges that the applicant’s family was given a portion of the suit property by his father; that the applicant and his family have been living in a portion of the suit property pursuant to that permission and that he did not take any steps to remove them from the suit property. 7. From the pleadings filed in this suit and the evidence adduced in respect thereof, it is clear that the entry of the applicant’s family into the suit property was with the permission of the previous owner thereof. It is noteworthy that the applicant in his pleadings and evidence has neither claimed nor led evidence capable of showing that the permission pursuant to which his family, including himself, entered into the suit property was terminated. That being the case, the applicant’s claim for adverse possession cannot be sustained. 8. From the pleadings and evidence adduced in this case, it is common ground that the applicant and his family are entitled to a portion of the suit property. According to the applicant, they are entitled to 1 acre while according to the respondent, their entitlement is ½ an acre. Concerning that claim or limb of the applicant’s case, neither the applicant nor the respondent adduced evidence capable of helping the court determine what the applicant’s entitlement to the suit property is. Other stating that his family his entitled to 1 acre out of the suit property, the applicant did not avail any survey report or any other documentary evidence capable of assisting the court determine the size of the portion of the suit property his family occupies. Without any evidence capable of determining the actual size of land that was given to the applicant’s family or the land the applicant and/or his family is occupying without the permission of the owner, this court is unable to enter judgment in favour of the applicant in the manner sought. 9. The upshot of the foregoing is that the applicant has failed to prove his pleaded case on a balance of probabilities. Consequently, I dismiss it with costs to the respondent. 10. Orders accordingly. **Judgement dated, signed and delivered at Nyahururu this 16th day of July, 2026 through Microsoft teams.** **L. N. WAITHAKA** **JUDGE** **In the presence of :-** Mr. Ashioya h/b for JV Juma for the Plaintiff/ Applicant N/A for the Defendant/Respondent Court Assistant: Bedan