https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4387

Auma (Suing as the Legal Representative of the Estate of Thadayo Auma Abuogi – Deceased) v Oucho (Environment and Land Case E004 of 2023) [2026] KEELC 4387 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEELC 4387 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Case E004 of 2023 FO Nyagaka, J July 8, 2026 Between Josiah Anyango Auma (Suing as the Legal Representative of the Estate of Thadayo Auma Abuogi – Deceased) Applicant and Fathernicus Oucho Respondent Judgment 1.The Applicant approached this court vide an Originating Summons dated 2nd August 2023, amended on 3rd February 2026 seeking the following orders;1.This honourable court be pleased to declare that the Plaintiff and any other person claiming under him has acquired title Suna East/Wasweta 1/17091 measuring approximately 0.40 Ha by way of Adverse Possession.2.The Plaintiff be registered as the sole proprietor of the LR No. Suna East/Wasweta 1/170913.That an injunction be issued restraining the Defendants, whether by their servants, agents, employees or otherwise howsoever from fencing, sub dividing, building, alienating or otherwise dealing with the suit property.4.That an injunction be issued restraining the defendants, whether by their servants, agents, employees or otherwise howsoever from illegally or otherwise interfering with the Plaintiffs’ quite possession and enjoyment of the suit property.5.This honourable court be pleased to order the Respondents to bear costs.6.The honourable court be pleased to make any such orders deemed expedient in the circumstances. 2.The import of the Amendment was the substitution of the Plaintiff as he had passed away. 3.The Applicant pleaded that parcel no. LR. SUNA WASWETA 1/17091 was registered in the name of the respondent and provided a copy of the Certificate of Official search of same as TAA1. Additionally, that he purchased a portion of LR SUNA WASWETA 11954 measuring 0.4 Ha in 1976, from Alexander Wire vide as sale agreement but he died before transferring the land to the Applicant. He produced the sale agreement as TAA2. He urged that the 11954 was transferred to Peter Tambo Mugoya including his portion and the same was sub divided including 17091 which he occupied. He stated that he had been in physical occupation of the land from the year 1976 which occupation was uninterrupted and peaceful, attaching a bundle of photographs as TAA 3 as proof of the same. It was the Applicants’ case that although the Respondent acquired ownership in 2012, he had no valid title as the Applicant had obtained exclusive ownership vide Adverse Possession. Further, that the Respondent has never set foot on the suit land and is a complete stranger to the Applicant and the community. 9th July 2025. 4.The Applicant made an application dated 13th March 2025, the Applicant sought leave to serve the Applicant vide substituted service which was allowed and the Applicant then served the Respondent vide a newspaper and filed an affidavit of service dated 9th July 2025. 5.The matter then proceeded for hearing and Josiah Onyango Ouma testified as PW1. He adopted his witness statement as evidence in chief and produced his list of documents as evidence. In it, he stated that Alexander Wire (Deceased) was the original owner of the parent parcel LR NO. SUNA EAST WASWETA 1/17091 and in 1976, his father purchased a portion measuring approximately 0.40 Ha and the sale agreement was reduced into writing. He stated that Alexander Wire passed on before the transfer and that the whole family had been in occupation of the portion since the purchase to date. That he has been living on the said land since 1976 without any interruption and has acquired the same by way of adverse possession. Additionally, he stated that the Respondent had not filed any claim to evict him from the suit land. 6.He produced the bundle of sale agreements as P-Exhibit 1(a) and (c). He additionally produced the translation certificate of the sale agreements as P-Exhibits 5(a) and (b). He stated that he had photographs of the suit land as P-exhibit 3(a)-(i). He produced a copy of the green card as PExhibit 4 and the Limited Grant of Letters of Administration Ad Litem as P-Exhibit 6. He testified that he carried out a search and produced a copy of the same as P-exhibit 2. He prayed that the court allow the claim for adverse possession. Analysis and Determination 7.Upon consideration of the pleadings and the testimonies of the witnesses, the following issue arises for determination;Whether the Applicants have acquired possession of the suit land by way of adverse possession 8.The doctrine of adverse possession is embodied in Section 7 of the Limitation of Actions Act, which is in these terms:-“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.” 9.The Limitation of Actions Act makes further provision for adverse possession at Section 13 that:“(1)(1) 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 sections 9, 10, 11 and 12 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 afresh 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), the land in reversion is taken to be adverse possession of the land.” 10.In the locus classicus of Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR, the court said;-“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 license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. 11.It follows that in order for a claim of adverse possession to succeed there are certain conditions that must be fulfilled. The Court of Appeal in the case of Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR stated as follows:-“At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and section 38 of the Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land.Therefore the critical period for the determination whether possession was adverse is 12 years and the burden is on the person claiming to be entitled to the land by adverse possession to prove, not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land, that the adverse possessor has done acts on the land which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it. See Littledale v Liverpool College (1900)1 Ch.19, 21.” 12.From the evidence on record, it is evident that the Applicant has satisfied the conditions precedent for acquisition of title by way of adverse possession. It is evident that he purchased a portion of LR SUNA WASWETA 11954 in 1976 evidenced by the sale agreement that was tendered in court as evidence. He also produced evidence that the respondent had the property known as of LR SUNA WASWETA 17091 registered in his name in the year 2012. This was a portion of land which was a sub division of 11954. 13.The Applicant provided evidence that he has been in occupation of the land by way of photographs which show that he has also made developments on the property, which actions are inconsistent with the owner’s’ enjoyment of the soil. The Applicant went to the extent of serving the Respondent with Summons on this matter vide substituted service and the Appellant did not enter appearance. There is no proof that the registered owner of the land has contested the Applicants’ occupation of the suit land. 14.The upshot of the foregoing is that the Applicant has acquire the suit property by way of adverse possession. In the premises, I hereby enter judgment in favour of the applicant order as follows;1.A declaration is hereby made that the Plaintiff has acquired title SUNA EAST/WASWETA 1/17091 measuring approximately 0.40 Ha by way of Adverse Possession.2.The Land Registrar, Migori County is hereby directed to register the Applicant forthwith as the owner of the suit land.3.There is hereby issued an injunction restraining the Defendants, whether by himself, his servants, agents, employees or otherwise howsoever from entering, remaining on, fencing, sub dividing, cultivating, building on, alienating or otherwise dealing with the suit property.4.Each party shall bear its own costs. 15.It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM 8TH DAY OF JULY 2026.HON. DR. IUR NYAGAKAJUDGEIn the presence of,Kisia for the ApplicantNo appearance for the Respondent