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Walekhwa v Olunga & 2 others (Civil Appeal 73 of 2020) [2026] KECA 1424 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1424 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 73 of 2020 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA July 10, 2026 Between Judith Walekhwa Appellant and Ronald Olunga 1st Respondent Hillary Emmanuel Olunga 2nd Respondent James Obiero Olunga 3rd Respondent (Being an appeal against the judgment and decree of the Environment and Land Court at Bungoma (Olao, J.) dated 12th March 2020 in Case No. 12 of 2018) (O.S)) Judgment 1.Vide her Originating Summons dated 10th April 2018, Judith Walekhwa, the appellant herein, moved to Court as against the respondents, Ronald Olunga, Hilary Emmanuel Olunga and James Obiero Olunga seeking to be declared the owner of land parcels No Bungoma/Kamakoiwa/1314, 1315 and 1316 by adverse possession. All these parcels were said to be sub- divisions from land parcel number Bungoma/Kamakoiwa/536. She also sought a determination on whether the respondents had a right to recover the suit land in view of the provisions of the statute of Limitation of Actions; whether the respondents’ title to the suit land had been extinguished by operation of the law; an order restraining the respondents by themselves and/or agents, from interfering with her peaceful possession and occupation of the suit land; and directions to the Deputy Registrar of the Environment and Land Court (ELC) or the Executive Officer of the court, to execute the relevant transfer documents to facilitate transfer and registration of the suit land in her favour. 2.In response to the Originating Summons, the respondents opposed the claim, arguing that there was hostility between the parties in relation to the question of ownership of the suit land, including attempts to engage the family of the deceased in a bid to resolve boundary issues concerning land parcels subdivided from the original parcel, Bungoma/Kamakoiwa/536, but instead they were met with attacks and disputes meaning the conditions for adverse possession were not satisfied. 3.In his determination the learned judge (Olao, J.) found that the appellant had not met the threshold of a claim to the suit land in adverse possession, pointing out that not only was the occupation interrupted through a suit but it had also not been peaceful. The suit was thus dismissed. 4.Dissatisfied, the appellant preferred the present appeal faulting the learned judge for finding that the occupation was interrupted and thus not peaceful; disregarding the appellant’s submissions; and holding that the appellant failed to meet the threshold for adverse possession. 5.Being a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions. In Selle vs. Associated Motor Boat Co., [1968] EA 123, our mandate was expressed thus:“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 6.The brief facts preceding this appeal are that, the appellant, and her late husband Gabriel Walekhwa Olunga (Gabriel) had lived on the suit land from the year 1981, courtesy of a purchase made by the late Gabriel’s father Olunga Makoba, from the Settlement Trustee Fund in 1965; who settled Gabriel’s mother thereon. In the year 1983, Anzelimo Rapando Olunga (Anzelimo), registered himself as the proprietor of the suit land, and although he did not interfere with the appellant's occupation, he filed Kakamega HCCC No 82 of 1988 against the deceased which suit was dismissed on 30th March 1998 for want of prosecution. The appellant’s contention was that Anzelimo had fraudulently registered himself as the proprietor of the suit land; caused it to be sub- divided into various portions yet that notwithstanding, the appellant continued to occupy the suit land for more than 37 years. 7.Alfayo Khwatenge Kasaya, a village elder, PW2, testified that Gabriel’s father and his family had settled on land parcel No. Bungoma/Kamakoiwa/536 which neighbours his land No. Bungoma/Kamokoiwa/534; Anzelimo had never lived on the suit land; that in 1990, PW2 was summoned to an arbitration meeting in a case filed by Anzelimo against Gabriel and the appellant. Prior to that, a village elder, one Patroba Namasambu had summoned Anzelimo to a meeting in 1985 over claims that he had wanted to evict the deceased and the appellant. Anzelimo did not turn up; and the next they learnt was that he had filed a suit in court. 8.According to Raphael Mumia Olunga, PW3, Gabriel’s father died in 1972 having settled in Kiminini Settlement Scheme, then following his death, Anzelimo cultivated the suit land to facilitate Gabriel’s education through Secondary School, although for quite a while, Gabriel and his mother blocked him from cultivating the suit land. However, neither Anzelimo nor anybody else claiming under him has cultivated the suit land; and the appellant had been living on the land since 1981. 9.In opposing the claim and urging for its dismissal, the 1st respondent, on behalf of the other 2nd and 3rd respondents confirmed to the trial court, the existence of hostilities between the parties, leading to filing of the civil suit in the High Court; that he sought the audience of the family of Gabriel, to settle the boundary of the parcels sub - divided from the original parcel, but in return, only attacks were lodged against him. It was his evidence that Anzelimo had sued the late Gabriel and Ruth Olunga, seeking damages for trespass to the land parcel No. Bungoma/Kamkoiwa/536 and a Decree issued on 17th June 1992 showing that a consent order was issued to the effect that the Anzelimo would get 10 acres and the appellant and her unit would get 6 acres. Their witness Catherine Munyefu (DW 2) the Executive Officer Kakamega High Court produced the record in the High Court case as part of the respondent's exhibit. 10.Drawing from the case of Grace Wairimu Soroma v Chaka Ltd & Others 2017] eKLR, the learned judge emphasized in his judgment, that the Appellant needed to prove that her occupation was continuous, open and peaceful without the permission of the owner. The learned judge found that that the original land parcel was first registered in the names of Anzelimo on 18th April 1983 when time started running; and that his suit was filed on 11th April 2018 thirty five (35) years after the land had first been registered; While the appellant's occupation of the suit land since 1981 was not in doubt, the learned judge held that from the record it was clear the occupation was interrupted in 1988 when Anzelimo, as the proprietor of the original land parcel No. Bungoma/Kamakowa/536 filed Kakamega HCCC No 82 OF 1988 against the deceased and her mother Ruth Olunga. 11.The learned judge pointed out that by the time Anzelimo filed that suit, the appellant had only been in occupation of the suit land for seven (7) years well short of the statutory period of twelve (12) years; and that suit effectively brought to a stop the running of the limitation period. Further, that given that un - disputed fact, the appellant’s occupation of the land stemmed from being Gabriel’s widow, her claim to the suit land by way of adverse possession could not be sustained; and in any event HCCC No. 82 of 1988 had sought damages from the deceased Gabriel and his mother for interfering with his use of the parcel. 12.Did the trial Judge err:- in finding that the appellant’s occupation of the suit land was interrupted by events in and after 1988; in finding that the appellant’s occupation was not peaceful; in taking into account the facts and the applicable law, did the appellant prove the ingredients of adverse possession for the statutory period; and did the learned Judge properly evaluate the evidence and applied binding appellate authority. 13.Ultimately, for us to determine whether the appellant’s rights accrued we must interrogate the following questions:a.How did the appellant take possession of the suit property?b.When did she take possession and occupation of the suit property?c.What was the nature of the possession and occupation?d.How long has the appellant been in possession? 14.As aptly submitted by the appellant, the appeal challenges the learned Judge’s findings on the issues of interruption of possession, peaceful occupation, and the application of the law on adverse possession. The appellant contends that the learned Judge misapprehended both the facts and the law, thereby arriving at an erroneous conclusion in dismissing her claim for adverse possession. The appellant, therefore, urges us to allow the appeal, set aside the judgment and decree of the trial court, and in lieu thereof make a finding that the appellant has acquired title to the suit land by adverse possession in accordance with sections 7 and 38 of the Limitation of Actions Act. 15.With regard to the appellant’s assertion of uninterrupted occupation the learned Judge found that the filing of the civil suit in the High Court at Kakamega, constituted an interruption of possession. The appellant maintains that this conclusion is factually and legally unsustainable, contending that the mere filing of proceedings does not automatically stop the running of time for the purposes of adverse possession; that time ceases to run only when the owner takes effective steps by an effective legal assertion which is pursued (leading to an order or entry) or by a physical dispossession or admission by the adverse possessor. In support of this argument, reference is made to the case of Mwangi Githu v Livingstone Ndeete [198] KLR 776.a.If a squatter or possessor has been in continuous, open, and exclusive possession of land for a period of 12 years without the owner's consent, they can claim ownership of that land via adverse possession;b.the mere change of ownership of the land (e.g., if the registered owner sells the land to a new person) does not interrupt the squatter's period of adverse possession;c.a person in adverse possession can successfully claim title to only a specific portion or demarcated area of the registered owner's land. 16.Whilst appreciating that the 1988 suit was, dismissed for want of prosecution, the appellant argues that the learned Judge did not examine whether, in substance, Anzelimo pursued an effective and continuous assertion that physically or legally dispossessed the appellant for the statutory period. The appellant insists that the correct approach as established by the Court of Appeal in Githu v Ndeete (Supra) is to examine whether the registered owner pursued the claim to deprive the adverse possessor of possession in a manner that would interrupt prescription; and concludes that the record does not show such effective, sustained action. 17.The appellant submits that a closer review of the pleadings in Kakamega HCCC No. 82 of 1988 confirms that, beyond its eventual dismissal for want of prosecution in 1998, the suit itself did not constitute an effective legal interruption of the appellant’s possession; that although Anzelimo described himself as the registered owner, he expressly acknowledged that the appellant’s late husband, Gabriel, and his mother, Ruth Olunga, were in occupation of the suit land. 18.The appellant pokes holes at the contents of the pleadings, arguing that the cause of action pleaded was not one for recovery of possession, declaration of ownership, or eviction, but rather a claim for general damages arising from alleged acts of the defendants in that case - namely, the demolition of a maize store, destruction of a fence, and cutting down of gum trees; and that the prayers sought were limited to damages, costs, and interest. It is thus submitted that even if the suit had been prosecuted to conclusion, it could not have operated as an effective legal assertion of ownership, capable of stopping time from running for the purposes of adverse possession, since it neither sought nor resulted in any order depriving the appellant’s family of possession of the suit property. 19.Further, that even assuming, without conceding, that the filing of Kakamega civil suit momentarily interrupted the running of time for purposes of adverse possession, the dismissal of that suit on 30th March 1998 had the legal effect of removing any such interruption; that upon dismissal, there was no subsisting judicial process or order capable of restraining or dislodging the appellant’s possession. In law, the running of time resumed immediately thereafter. 20.We are urged to consider that from 1998 to the date of filing the appellant’s claim in 2018, a further period of more than twenty (20) years elapsed; that during that time, the appellant and her family continued in open, peaceful, exclusive, and adverse possession of the suit land, without any act of re- entry, eviction, or disturbance by the respondents. Thus, even under the most favourable interpretation to the respondents, the statutory twelve-year period prescribed under sections 7 and 38 of the Limitation of Actions Act was fully satisfied. 21.The appellant thus argues that the trial court ought to have found that the appellant had, by 2018, acquired title to the suit land by adverse possession, whether reckoned continuously from 1981 or, alternatively, from 1998 following the dismissal of the 1988 court proceedings. The learned Judge’s failure to appreciate this legal consequence constitutes a clear error of law warranting this Court’s intervention. 22.In relation to the issue whether the learned Judge erred in finding that the occupation was not peaceful, it is submitted that the evidence clearly established that the appellant and her family occupied, cultivated, and developed the suit land openly and continuously from 1981. In this regard, reference was made to the testimonies of PW2 and PW3 which are described as corroborating this long-standing residence, described as visible, settled occupation by the appellant’s household; and that the elders’ arbitration records merely reflect attempts at resolving the dispute. 23.The respondents opposed the appeal. The respondents referred to section 38 (1) of the Limitation of Actions Act which allows a person who is in occupation of land for the requisite statutory period of twelve years to apply to the court to be registered as proprietor thereof; and cites the case of Mtana Lewa vs Kahindi Ngala Mwangandi Court of Appeal Civil Appeal No. 56 of 2014 (2015) eKLR which described the doctrine of adverse possession thus:“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period The essential pre requisite being that the possession of the adverse possessor is neither by force or stealth or 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 " 24.In essence, a party seeking to successfully claim adverse possession ought to demonstrate that he/she has used and been in possession and occupation of the suit land in an uninterrupted, open, and peaceful possession, with the owner's knowledge. There also need of proof of dispossessing the registered owner of the suit land for the continuous period of twelve (12) years. 25.The respondents acknowledge that whereas the appellant may have been in occupation of the suit land since the year 1981 when she allegedly married the deceased, Gabriel, the step brother to the then registered owner, Anzelimo Olungua, they maintain that the record clearly demonstrates that the said occupation was interrupted in the year 1988 when the said registered proprietor to the suit land then known as Bungoma/Kamakoiwa/536, asserted his authority and title to the suit land by filing a case in court; that the occupation was not peaceful and by the time the suit was filed, the appellant had only been in occupation of the suit land for a period of seven (7) years which was well short of the statutory period of twelve (12) years and that the said suit effectively brought an end to the running of the limitation period. That given this set of circumstances, the appellant's claim to the suit land by way of adverse possession could not and cannot be sustained because she was on the suit land by virtue of her marriage to the deceased Gabriel against whom the suit had been filed; that suit inevitably affected the appellant as the spouse of the deceased defendant. 26.The respondents were categorical that Anzelimo was evidently the first registered proprietor of the suit land, and who after his demise, had succession processed in respect of his estate which comprised the suit land parcel then known as Bungoma/Kamakoiwa/536. Additionally, that in an attempt to claim the entire land parcel, the 1st respondent in the aforesaid suit filed an application seeking to inherit the estate of the late Olunga Makuba which application was dismissed vide the ruling dated 16th February 1989. That the civil suit before the High Court was subsequently determined after an arbitration by the District Officer and elders whom the court placed at liberty to mediate on the dispute between Anzelimo and the defendant therein, and the decision was adopted by the court as judgment, thereby effectively binding the parties to the suit. Again, that judgment affected the appellant since she could not separate herself from the fact that her occupation of the suit land and that of Gabriel were intertwined because if she was not the spouse to Gabriel, then she would have no capacity to be on the suit land whatsoever. 27.It is the respondents’ contention that a claim for adverse possession lies against the title registered in the names of a living proprietor, in the instant case, and after his death, his wife, Agnes undertook succession proceedings successfully with a certificate of confirmation of grant being issued in her name. That again and after the demise of Agnes Naswa Olunga, the respondents herein successfully conducted succession proceedings to her estate comprised of the three suit land parcels. Again, the appellant was nowhere to be seen nor did she raise any objection to distribution of the estate. 28.The respondents maintain that the appellant ought to have instituted a claim for adverse possession prior to the death of Anzelimo Rapando and Agnes Olunga, as the certificate of confirmation of grant in respect to the estate of Anzelimo Rapando Olunga was issued prior to the demise of Agnes Naswa Olunga (his wife); that the appellant’s occupation of the suit premises for over 37 years was definitely during the lifetimes of both Anzelimo Rapando Olunga and Agnes Naswa Olunga; and the prescriptive rights of adverse possession were never sought by the appellant during the lifetimes of both registered proprietors. 29.In support of this position reference is made to the case of Muriithi Jeremiah vs. Nelson Mwangi Kinguru (Being sued as legal representative of estate of the late Esther Wanjiru Kinumbi) where Olao J. held as follows:“If indeed he had been on the suit land from the time of his birth and even planted coffee thereon in 1952 before the emergency (as per his evidence in chief), he ought to have filed these proceedings long ago and indeed during the life times of the previous registered proprietors...That he did not do so is clear indication that he was aware that such a claim either in adverse possession or otherwise would be resisted as unfounded..."On account oof the foregoing, it is submitted that the proper timelines when the appellant ought to have lodged a claim for adverse possession, should have been either before the deaths of the previous registered proprietors or during the succession proceedings to their estates; yet the originating summons were filed almost eleven (11) years after conclusion of succession proceedings. We were urged to find that by the time the claim was filed in the year 2018, the titles to the land parcels in contention had already passed to the respondents herein as exemplified by certificate of confirmation of grant with respect to Agnes Naswa's estate. 30.As a corollary, the respondents contend that the appellant's claim could not, and still cannot hold due to the fact that Anzelimo suit against the appellant's husband was determined by the parties' consent; that a consent once entered by the parties is binding directly against such parties and their representatives and or agents. 31.Further, that since the initial registered proprietor had moved to assert his interest over the suit land vide the civil suit, then time could not be computed at all as from 1988 to 2017. In support of this argument, reference is made to the case of Gichuhi vs. Ndungu (Environment & Land Case 18 of 2021) [2022] KEELC 13417 (KLR) (6 October 2022) (Judgment) where the court rendered itself thus:“That brings me to the next issue for discussion which is whether the running of time was interrupted. It is trite that time is interrupted in adverse possession in circumstances where the title owner files suit to assert title; the title owner retakes the physical possession of the land; the adverse possessor relinquishes possession." 32.As regards peaceful occupation and use, the respondents argue that that the appellant failed to prove the same, as the evidence showed that on 18th January 1986, the land dispute between the deceased and Anzelimo Olunga had been arbitrated over by the Assistant Chief of Milimu Sub-location. With respect to the question of knowledge or consent of the registered proprietor, it is argued that DW1 was categorical that he did not know the appellant up until the demise of the deceased, when he heard of the appellant for the first time. In addition, that his late father (Anzelimo Olunga) and Gabriel had differences regarding the disputed land; and this evidence not only demonstrated the existence of hostilities and disruption in occupation, but also cast aspersions on the appellant's contention regarding the timelines on occupation of the suit land. 33.The respondents maintain that time in a claim for adverse possession is only supposed to run when the claimant's interest in the suit property has been ascertained, that in the instant case, the appellant's interest did not constitute the statutory 12 year period. In addition, that computation of time for adverse possession can only start when there is evidence of actual or constructive knowledge by the registered proprietor that a third party, (the appellant herein) is in possession of the suit property. That in any event, mere occupation alone, does not prove adverse possession 34.In support of the afore going proposition, reference was made to the case of Richard Wefwafwa Songoi vs. Ben Munyifwa Songoi [2020] KECA 942 (KLR), where this Court differently constituted held:“ 34.In the instant matter, the appellant contends that the respondent has never been in possession of the suit property. In a claim for adverse possession, the non-use of the property by the owner even for a long period of time will not affect his title. The position will only be altered when another person takes possession of the property and asserts a right over it." 35.The respondents also urged us to consider the case of Alfred Welimo vs. Mulaa Sumba Barasa, CA No 186 of 2011, where this Court expressed itself thus:“It is trite that adverse possession is not established merely because the owner has abandoned possession of his land and ceased to use it; for as Robert Megarry aptly observed in his Megarry's manual of the Law of Property, 5th ed. page 490, the owner may have little present use for the land and that land may be used by others, without the users demonstrating a possession inconsistent with the title of the owner. So the mere fact that the appellant abandoned possession of the suit property and went to live at Ndalu scheme by and of itself does not establish adverse possession. The abandonment of possession must be coupled with the respondent taking possession of the land with animus possidendi (the intention to possess) and asserting thereon rights that are inconsistent with those of the appellant as the owner of the land " 36.We have duly considered the record of appeal, as well as the arguments advanced by both parties. In our view the issues for determination are: whether the appellant's claim for adverse possession over land parcel numbers Bungoma/Kamakoiwa/1314, Bungoma/Kamakoiwa/1315 and Bungoma/Kamakoiwa/1316 was merited. 37.What constitutes “adverse possession”? In response to this question, we draw from the definition of the same in the case of Jandu vs. Kirpal & Another [1975] EA 225 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.”The Supreme Court of India in AIR 2008 SC 346 Annakili vs. A. Vedanayagam & Ors, gave the essential elements of adverse possession which were considered in light of the Limitation Act Of Actions India with provisions similar to the Uganda Limitation Act(Cap 80). It was held that:“Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now settled principle of law that mere possession of land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the prescribed period under the Limitation Act. Mere long possession for a period of more than 12 years without anything more do not ripen into a title.” 38.This was equally the holding in Alfred Welimo vs. Mulaa Sumba Barasa, CA No. 186 of 2011, where this Court expressed itself thus:“It is trite that adverse possession is not established merely because the owner has abandoned possession of his land and ceased to use it; for as Robert Megarry aptly observed in his Megarry’s manual of the Law of Property, 5th ed. Page 490, the owner may have little present use for the land and that land may be used by others, without the users demonstrating a possession inconsistent with the title of the owner. So, the mere fact that the appellant abandoned possession of the suit property and went to live at Ndalu Scheme by and of itself does not establish adverse possession. The abandonment of possession must be coupled with the respondent taking possession of the land with animus possidendi (the intention to possess) and asserting thereon rights that are inconsistent with those of the appellant as the owner of the land…”See also Adverse possession as was defined in Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR. 39.Section 7 of the Limitation of Actions Act places a bar on actions to recover land after 12 years from the date on which the right accrued in the following 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.Additionally, section 13 of the same Act, provides that adverse possession is the exception to this limitation: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 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.2.Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.3.For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3) of this Act, the land in reversion is taken to be adverse possession of the land. 40.Finally, Section 38 of the Act, which has also been cited by the respondent provides that:Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land. 41.Ultimately, 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. 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; after the expiry of the said twelve years the title of the registered owner shall be extinguished; and the person in adverse possession is entitled to a title by possession. 42.In the instant case, the appellant did not dispute that the parcel in question was registered in the names of the 3rd respondent. How did she get to be in occupation? This happened when she joined her late husband Gabriel and they lived together. Initially it appears that she questioned the legality of their title, saying the parcel had been bought by her father-in-law from the Settlement Trustee. She however seemed to recognize that the land was nonetheless registered in the name of the 3rd respondent; and therefore, pegged her claim to her continued occupation. The respondents did not dispute the fact that the appellant was in possession of their respective parcels of land but they questioned her continued stay and use; and they also insisted that her occupation had been far from peaceful, given that ownership disputes had sprinkled the landscape, ending up in a suit filed in court, and even arbitration by elders. 43.When did time begin to run for the appellant? The initial occupation was in 1981, but was interrupted by the Court case which was filed in 1988, that was just 7 years of occupation. That suit was eventually dismissed in 1998 for want of prosecution. In our considered view, the nature of the prayers in the pleadings would not be the determinant, rather, the fact that the respondents were aggrieved by the occupation and went to court in a bid to legally assert their rights, constituted an interruption, a disruption of the peaceful occupation. We are in agreement with the learned judge that as at 1988, twelve years had not lapsed and there had been some disruption. 44.After 1998, the appellant did not move out of the suit land, and continued in open undisrupted occupation and in the year 2018, she got a light bulb moment leading to her filing suit in very specific terms, to determine whether her occupation had been open, peaceful and continuous for a period of 12 years, in simple terms, a claim to ownership through adverse possession. She also wanted the court to determine whether the respondent’s claim to the suit land had been extinguished by operation of the Statute of limitation of Actions. However, the learned judge was of the view that she could not have vicariously acquired adverse possession, as the enabling factor leading to her presence on the land was her marriage to the late Gabriel. That although she had not filed the suit land in her capacity as the administrator of her late husband’s estate, she could not extricate her entry from the fact of her marriage and that if she was not his spouse, she would have no capacity to remain on the suit land; and that when Anzelimo had filed suit, it was against her late husband and his late mother. 45.Whereas it is easy to understand why the suit in the High Court was filed against the late Gabriel, there appears to be no rationale as to why the respondents did not find it necessary to ask the appellant to vacate the suit land after her husband’s demise. What happens when the original adverse possessor dies? Ideally when the person who was actively squatting and claiming the land dies before the statutory 12-year period is complete, their claim does not automatically vanish. However, there would be need for substitution so that the right to possess the land may pass to the deceased squatter's heirs or legal representatives. The widow, widower, or beneficiaries can substitute themselves in an ongoing lawsuit to add their late spouse's years of occupation onto their own, by obtaining Letters of Administration to enable them legally act on behalf of the estate and continue pursuing the claim under the Law of Succession Act. 46.Indeed, when she filed the suit, it was pegged to the fact that entry was due to the marriage, but after her husband’s demise she remained in open occupation, and use. It was no longer her husband occupying the suit land; and as correctly observed, she came to court in her individual capacity. As a matter of fact, the late Gabriel did not file a defence so as to enable this court determine whether he would have defended the suit on the basis of adverse possession, or purchase by his late father. After 1998, the appellant and her family continued in open, peaceful, exclusive, and in adverse possession of the suit land, without any act of re-entry, eviction, or disturbance by the respondents, clocking a fresh period of twenty (20) years. 47.Just apart from the period of twelve years, we consider the fact that the appellant openly demonstrated a hostile intention to take over, remain in occupation and use the suit land. The appellant anumus possidendi was open and manifested at the inception of the occupation by acts such as the cultivation of land accompanied by growing of crops, militates against any other rationale interpretation. Surely, even under the most favourable interpretation to the respondents, the statutory twelve-year period prescribed under sections 7 and 38 of the Limitation of Actions Act had long lapsed and was fully satisfied. It is our considered view that the conclusion reached by the learned Judge was thus against the weight of the evidence, must accordingly be set aside. 48.Ultimately, we find that the appeal is merited, we thus allow it, set aside the judgment and decree of the Environment and Land Court dated 12th March, 2020 and in lieu thereof declare that the:a.The appellant has been in occupation of the suit property for a period exceeding 12 years.b.The respondent’s right to recover the suit property is barred by operation of the Limitation of Actions Act and their title to the property is extinguished by law.c.The appellant shall be registered as the proprietor of the suit property in place of the registered owner, by operation of the doctrine of adverse possession.d.The Deputy Registrar of the Court shall execute all the transfer instruments and attendant documents necessary to facilitate the transfer and registration of the suit property in favour of the appellant, in the event that the respondents decline or are unwilling to execute such instruments. Each party shall bear its own costs. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA.......................................JUDGE OF APPEALH. A. OMONDI.......................................JUDGE OF APPEALL. KIMARU.......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR