https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3290

Ogendi alias Casmiel Mbori Ogendi v Odhiambo (Sued on Her Behalf and as the Legal Administrator of the Estate of Johnson Odhiambo Ogolo - Deceased) (Environment and Land Case E002 of 2024) [2026] KEELC 3290 (KLR) (6 May 2026) (Judgment) Neutral citation: [2026] KEELC 3290 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Case E002 of 2024 FO Nyagaka, J May 6, 2026 Between Kasmiel Mbori Ogendi alias Casmiel Mbori Ogendi Plaintiff and Fredrick Onyango Odhiambo (Sued on Her Behalf and as the Legal Administrator of the Estate of Johnson Odhiambo Ogolo - Deceased) Defendant Judgment 1.By way of Originating Summons dated 1st February 2024, the Plaintiff seeks the following orders:1)Declaration that the Defendant's right to recover a portion of LR No. West Kasipul/Kodera Kamiyawa/410, (hereinafter referred to as the suit property) measuring 0.5Ha is barred under the Limitations of Actions Act cap 22 of Laws of Kenya, and his tite thereto Extinguished on the grounds that the Plaintiff herein has Openly, Peacefully and Continuously been in occupation and possession of the entire of the suit property for a penod exceeding 40 years and thus exceeding the Statutory timeline for recovery of immoveable property.2)There be an Order that the Plaintiff be registered as the Proprietor of the portion measuring 0.5Ha of LR No. West Kasipul/Kodera Kamiyawa/410, in place of the Defendant and/or the register thereof be rectified to reflect the Plaintiff as the lawful and legitimate owner thereof.3)There be an Order that the Plaintiff be registered as the Proprietor of a portion measuring 0.5Ha out of LR No. West Kasipul/Kodera Kamiyawa/410, in place of Johnson Odhiambo Ogolo now deceased and/or his Estate.4)The Honourable Court be pleased to grant an Order of Permanent Injunction restraining the Defendant/Respondent herein either by himself, agents, servants, employees and/or anyone claiming under the Defendant/Respondent, from trespassing onto, entering, re-entering upon, laying a claim to, Depositing assorted Construction Materials, Leasing, Building onto, Fencing, interfering with and/or in any other manner, whatsoever dealing with the suit Property or any Portions thereof, that is LR No. West Kasipul/ Kodera Kamiyawa/ 410, in any manner whatsoever and/or howsoever.5)The Deputy Registrar and/or the Executive Officer of the Honourable High Court, or such other authorized officer, be directed and/or ordered to execute the Transfer Instruments and all attendant documents, to facilitate the transfer and registration of a portion measuring 0.5Ha out of LR No. West Kasipul/Kodera Kamiyawa/ 410, in favor of the Plaintiff.6)The Honourable Court be pleased to order and/or direct the Land Registrar, Homabay to dispense with the surrender of the Original Title Deed over and in respect of LR No. West Kasipul/Kodera Kamiyawa/410 and forthwith register the Transfer instrument and issue Title Deed over and in respect of a portion measuring 0.5 Ha of LR No. West Kasipul/Kodera Kamiyawa/410, in favour of the Plaintiff.7)Costs of this Originating Summons be borne by the Defendant.8)Such further and/or other orders be made as the court may deem fit and expedient, in the circumstances of this case. 2.The Summons is based on the grounds on the face of it and supported by the averments in the Supporting Affidavit sworn by the Plaintiff. He deponed that after adjudication process, he participated in the demarcation process and took possession of not only West Kasipul/Kodera Kamiyawa/409 which was his property, but also a portion of West Kasipul/Kodera Kamiyawa/410 belonging to the Defendant. 3.He stated that in 2022, the Defendant and his family started construction over the disputed portion after which he filed a case in Oyugis SPMCC No. 32 of 2022 where the court ordered that he engages a surveyor. He deponed that the surveyor established that the disputed portion was part of the suit property and not West Kasipul/Kodera Kamiyawa/409. That he later withdrew the case and has been in quiet possession of the disputed portion with the Defendants knowledge. 4.He deponed that together with his family, he has, been in continuous exclusive and uninterrupted occupation and use of the parcel West Kasipul/Kodera Kamiyawa/410 for over 40 years. Further, that he has acquired the disputed portion suit land by way of adverse possession and urged the court to grant him the prayers sought in the summons. 5.The Respondent filed a Replying Affidavit dated 23rd April, 2024 in response to the Summons. He sated that he lives with his family on the suit property Further, that the construction materials were deposited back in 2018 and that the Plaintiff’s occupation of the suit parcel has not been peaceful as alleged. He stated that the allegation that the Plaintiff had been using the land was misleading since the trees on the suit parcel was built by the Defendants. 6.He averred that as a family they struck a deal with the Plaintiff that he stayed on the suit parcel and relinquish his rights in parcel number West Kasipul/Kodera/Kamiyawa/1386 to them. He added that the Plaintiff cannot thereafter claim adverse possession as his entry was consented to. He also stated that the surveyor’s report which the Plaintiff relied on was done by an unregistered surveyor. He urged the court to dismiss the Plaintiff’s claim with costs. The Plaintiff’s Case 7.Casmiel Mbori Ogendi who filed a Further List of witnesses dated 24th April 2024 which had the names of James Waringa Ogwa and Dismas Ochoro Mbori testified as PW1. He adopted his statement dated 1st July, 2024 as his evidence in chief. The Statement was that the defendant was the Legal Administrator of the estate of Johnson Odhiambo Ogolo (deceased), having been appointed as such and issued with a Grant of Letters of 8.Administration vide Oyugis SPMC Succesion Cause No. 6 1 0 of 2023. He added he (the claimant) was the registered owner of LR No. West Kasipul/Kodera Kamiyawa/409 having been registered as such and Title Deed issued unto me on the 12th January, 2015. Further, Johnson Odhiambo Ogolo was the registered Proprietor and/or owner of LR No. West Kasipul/Kodera Kamiyawa/410, (the suit property), which property shared a common boundary with his parcel. 9.During the Adjudication process in Kodera Kawaiya Adjudication Section (now registration section), the Residents participated in the demarcation process and took possession of their respective portions. 10.Upon the completion of the Adjudication and Demarcation Process, he entered took possession of not only LR No. West Kasipul/Kodera Kamiyawa/409, but also a portion of the suit Property measuring approximately 0.5Ha (the disputed portion), on the belief that it was part of his property. Due to his occupation and/or possession of the disputed portion of the suit property, the boundary between LR No. West Kasipul/Kodera Kamiyawa/409 and the suit property is not visible for reasons that he merged the disputed portion his parcel of land and deemed it to be part of LR No. West Kasipul/Kodera Kamiyawa/409. He assumed that the disputed portion belonged to me and was part of my property. 11.Then he commenced to and carried out various Developments and/or Improvements on the disputed portion of the suit Property and in particular, established a homestead as well as carrying out farming activities thereon, which homestead(s) is standing thereon, to date. Further, my parents and my first wife were buried on the disputed portion. He added that his family and him had been in occupation and possession of the disputed portion of the suit property for over 40 years. He was born in the year 1959 and was subsequently settled on LR No. West Kasipul/Kodera Kamiyawa/409 by his father which property was later registered in his name in 1980. 12.In the year 2022, the Defendant and his family started laying a claim over and in respect of the disputed portion herein. The defendant and his family, without any colour of right, descended unto the disputed portion of the suit property; damaged the fence, the toilet thereon and deposited building materials thereat with view of starting construction on the disputed portion. Owing to the said actions and/or he lodged a complaint with the area administration office, including the Deputy County Commissioner, Rachuonyo south sub-county and the chief, Kodera North Location. He also filed a suit vide Oyugis SPMCC ELC Case No. 32 of 2022 whereby he sued the Defendant and family for trespass. He also lodged an Application and sought for an order to have the Surveyor, Homabay County, to visit LR No. West Kasipul/Kodera Kamiyawa/409 and the suit property to determine the extent of encroachment, by the Defendant. Later the Court ordered and/or directed that the Surveyor, Homabay County do visit LR No. West Kasipul/Kodera Kamiyawa/409 and the suit property to determine the extent of encroachment. He engaged a surveyor, who proceeded who visited LR No. West Kasipul/Kodera Kamiyawa/409 and the suit property. He established and confirmed that the disputed portion was part of the suit property and not LR No. West Kasipul/Kodera Kamiyawa/409. He generated a Report, pertaining to and/or concerning the ground positions/delineations of the parcels of land in question, which Report confirmed and/or authenticated occupation, possession and use of the disputed portion by myself. 13.He later withdrew Oyugis SPMCC ELC Case No. 32 OF 2022. He added that the surveyor confirmed that he was in possession and/or occupation of the disputed portion measuring 0.5Ha out of the suit property whilst the defendant was in occupation of a portion of the suit property measuring 0.2 Ha. he added that the defendant’s activities commenced after the lapse of 12 years he had been in occupation and possession thereof undisturbed and/or interfered with, whatsoever: in actual sense for over 40 years. The occupation had been open, continuous, uninterrupted and known to all and sundry, the Defendant not excepted and at no time have he parted with possession and/or ceased to be in possession of the disputed portion of the suit property. 14.He added that that the deceased herein and by extension the Defendant had been Privy to, knowledgeable of and cognizant of the activities and cultivation of the suit Property by myself. For clarity, the houses build thereon are discernable and evident of the longevity of occupation. Further, that despite the entry and/or taking of the disputed portion of the suit Property, the deceased and the Defendant, did not take any steps and/or actions to defeat my interests over and in respect of the disputed portion of the suit property. The deceased passed away sometimes in the year 2015 and as at the time, he had never raised a concern and/or lodged any complaint concerning my occupation of the disputed portion. He added his occupation was nec vi, nec clam, nec precario. 15.Further, the Defendant's rights to and/ or interest over the said portion of the suit property, lapsed, terminated and/or extinguished, by effluxion of time. That he had acquired, accrued and/or accumulated rights and/or interests thereon capable of registration and pleaded to the court to crystalize the registration of his rights in respect of the portion of the suit property measuring 0.5Ha. That his occupation amounted to and/or constitutes overriding interest and warranted acknowledgement, vindication and registration by a declaration that he had acquired Adverse possessory rights and/or Interests over a portion of the suit Property measuring 0.5Ha and it be transferred and registered in his name. 16.It was his oral testimony he added he knew the suit land parcel no. Kasipul/Kodera/Kanyiyawa/410. He also produced his bundle of documents dated 1st February, 2024 and statements 1 to 7 and 9 to 13 (PEXhibits 1 to 13 admitted), supplementary bundle of documents dated 4th April, 2024 serial Nos. 1 to 3 (PExhibits 14, 15 and 16) which was adopted as his evidence in chief. 17.He referred to the report dated 16th June, 2022 (PMFI - 17) and abandoned document No. 8 in the list. He testified that he was in occupation of 0.05 ha of the suit land. 18.He testified that he did not agree that he stays on the large portion. He further testified that Benard Omondi Otieno was his nephew. He added that he did not agree to exchange land with the Defendant. 19.It was his testimony that interference on the suit started in the year 2022. He also testified that he was still in occupation of the suit land while the Defendant and family lived on the other portion of the suit land. 20.Upon cross examination, PW1 confirmed that he was in occupation of the suit land since 1959. He added that he was born on the suit property. 21.He stated that he had buried his 2nd wife on the suit land and that he had also built his matrimonial house on the land. He further stated that his father and mother passed on in the year 1958 and 1984 respectively. 22.He stated that they had occupied the suit parcel LR No. West Kasipul/Kodera, where they had also cultivated. He added that his parents were buried on the suit land. 23.PW1 denied that he was a trespasser or that he had ever filed an adverse possession claim over the suit land. He stated that he went to court when the Defendant destroyed his house and assaulted his nephew in relation to the suit land. 24.He admitted that he had not approached the court over the suit land. He also denied having raised any boundary dispute over the suit land. He confirmed that he has been cultivating on the suit land. He stated that there were attempts to resolve the dispute but not to exchange it. 25.On re-examination, he stated that he farmed on LR No. 409 growing maize, sweet potatoes and cassava. He further stated that he had never filed a suit over the suit land. 26.He stated that the case had been filed for him to vacate the suit land. He referred to PExhibit 13 at pages 74 to 78 which showed the maize planted together with other activities carried out thereon. 27.PW1 stated that the Defendants started interfering with his occupation of the suit land in 2022. He denied ever having received a court order that stopped him from reoccupation of the suit land. 28.Calvince Simon a Land Surveyor testified as PW2. It was his testimony that he has been a surveyor for 4 years. 29.He testified that PW1 had engaged him for survey work in respect of LR No. Kamiyawa 410. It was his testimony that he visited the land measuring approximately 0.05 ha, a portion which PW1 occupied. 30.He further testified that the whole land measured approximately 0.70 ha in area and was registered in the name of Johnson Odhiambo Ogolo (deceased). 31.He went on to testify that PW1 had built his homestead on part of the suit land while the other portion was occupied by Johnson Odhiambo. He produced his report dated 16th June, 2022 (marked as PMFI-17 at first). 32.He also testified that he had a letter from the Land Surveyor’s Board dated 15th November, 2023 to engage in survey work. It was his testimony that he was authorised to work under Boaz Owino a licenced surveyor and the owner of land system. 33.The report dated 10th June 2022 was produced as PEXhibit 17. He testified that the report (DMFI-1) was lodged on 2nd May, 2024 and that the instant suit was filed on 7th February, 2024. 34.PW2 testified that PEXhibit 14 did not correspond with PEXhibit 17 to confirm the portion of the suit land in occupation of the suit land. 35.On cross examination, he stated that he became a surveyor on 15th September, 2022. He confirmed that he did PEXhibit 17 on 16th June, 2022. He also confirmed that he had a letter dated 15th November, 2023 which authorized him to work as Assistant Surveyor. 36.He stated that he had been instructed by PW1 to ascertain a portion of land in terms of acreage. He added that PW4 lived on the portion for over 100 years. He, however, admitted that he could not tell whether the year period contained in PEXhibit 17 was correct or not. 37.He stated that he had found a perimeter wall, fence of barbed wires, homestead comprising of three houses and a kitchen with maize plantation around it. 38.He further stated that PW1 had LR No. 409 which share boundary with the suit land. He confirmed that he had not seen the Defendant’s home on the suit land. 39.He confirmed that he had started working with Land Systems Company as intern in year 2021 and later became an approved Assistant from year 2023. 40.PW2 admitted that he had prepared PEXhibit 17 in the year 2022 when he was not qualified to do so thus the report was null and void. 41.Upon re-examination, he stated that when he went to the suit land, PW1 was in occupation of the same. 42.Caleb Otieno Onyango a Surveyor with National Government, Homa-Bay testified as PW3. It was his testimony that he has been a surveyor for 14 years. He testified that he attends to land dispute and implement appeal to the Minister. 43.He testified that he had interacted with LR Nos. West Kasipul/Kodera/Kamiyawa/409 and 410 on 18th May, 2023 when he visited the sites as a result of the court’s order issued on 14th April, 2022 PExhibit 7. He testified that he was to determine the extent of encroachment. 44.He testified that he found the area chief, Joseph Omoto, the 1st, 2nd and 3rd Defendant, Francis Odhiambo who was the Defendants’ brother. He added that he had called the Plaintiff but failed to attend after which he then proceeded with the exercise. 45.He testified that his findings were that the two parcels of land had distinct boundary made of barbed wire fence. He added that the Plaintiff (PW1) was utilizing part of LR No. 410 approximately 0.22 hectares on the ground. 46.He added that the Defendants on the other hand were utilizing 0.8 hectares on the ground with respect to the said parcel of land registered in the name of Johson Odhiambo. 47.It was his testimony that regarding the position on the ground as per PEXhibit 14, LR No. 409 was acquired by PW1 where he owned part of LR No. 410. He testified that he had signed PEXhibit 14 which showed how the boundaries are placed on the ground. 48.He added that the portion occupied by PW1 marked as “B” in LR No. 410 was bigger as per the sketch map than that occupied by the Defendants. He testified that his report (PEXhibit 14) showed “A” (0.48ha) and “B” (0.22Ha) was occupied by PW1 and the Defendants respectively. 49.He testified that PW1 claimed portion “B” and utilized the same. He went on to testify that according to the sketch, portion “B” was bigger than portion “A” in PExhibit 14. He added that PW1 had erected three houses thereon. PW3 however confirmed that PW1 was absent on the suit land but confirmed that there was maize plantation thereon. 50.Upon cross examination, PW3 confirmed that the area chief called PW1 who did not turn up to the exercise. He further confirmed that he had prepared PExhibit 14 and that he did the measurements and sketch. He added that the sketch had not been drawn to scale as it had no measurements. 51.He stated that a map is usually drawn to scale unlike a sketch. He added that on 18th May, 2023, the area occupied by the Defendant was 0.4 ha while PW2 occupied 0.22 ha of the suit land, No. 410. He denied that PW1 occupied 0.5 ha. 52.Dismas Ochoro Mbori testified as PW4. He stated that he wrote his statement dated 24th April, 2024 which he adopted as his evidence in chief. But his statement was never filed, unlike the case for James Waringa who was named with him in the Further List. Thus, there was no evidence in chief by way of any written statement that 53.Nevertheless, upon cross examination, he stated that he lived on LR No. 403 in Kodera/Kamiyawa and that PW1 was his neighbor. He further stated that LR No. 410 was registered in the name of PW1’s father. 54.He added that LR No. 409 bordered LR No. 410 which was registered in the name of Nicholas Ogendi. He also stated that he knew the boundaries of neighbouring parcels of land. 55.PW4 confirmed that he never visited the County Commissioner’s office regarding the dispute. He also confirmed that the Defendant lived next to LR No. 410 used by PW1. PW4 admitted that PW1 used LR No. 410 alone. He also admitted that he did not know its size. He confirmed that there was boundary dispute between LR Nos. 409 and 410. 56.He stated that PW1’s first wife used to live on LR No. 410 and that PW1 was born and bred on LR No. 410. He added that his father used to live on LR No. 409 and that one Johnson Odhiambo found him thereon. He added that PW1 lived on LR No. 410. He also stated that PW1 and Lawrence Odhiambo fought over the boundary of the suit land and LR No. 410. 57.He stated that Lawrence Odhiambo had trespassed into LR No. 410 and they disputed over it. He added that they tried to resolve their dispute without success. 58.On re-examination, he stated that the dispute between PW1 and Lawrence Odhiambo over the suit and LR No. 410 was reported to the police but that he could not confirm its outcome. 59.James Waringa testified as PW5 where the court adopted his statement as his evidence in chief. The Statement was that He stated that he was born sometimes in the year 1950. He was a neighbor to the Plaintiff. He had known him since he was young. He also knew the Plaintiff’s Father. He knew the disputed portion of LR NO. WEST KASIPUL/KODERA KAMIYA/410. He knew it belonged to Mzee Ogendi, the father to the Plaintiff. The said father had “3 houses”, that is, OGENDI, OBALA and ONYANGO. The Plaintiff was born on the portion of the suit property and he later established his home on a portion thereof. The Plaintiff had always occupied the said portion all these years he knew him and all the Plaintiff’s deceased relatives had been buried on the said piece of land. Further, the Plaintiff's sons had also been in occupation of the disputed portion of the suit property. 60.He added that on the contrary, he knew Johnson Odhiambo Ogolo, now Deceased, when he was staying on the lower side of Kodera past the River or drainage. He later on settled his family on the remaining portion of the suit property. PW4 could not remember one Johnson Odhiambo Ogolo having any dispute with the Plaintiff concerning the disputed portion during his life time. However, late in the year 2023, the son of the deceased fenced and deposited building materials on the disputed portion of the suit property. The sons of the deceased also surveyed the suit property in the year 2023 and claimed the disputed portion belonged to their deceased father. He prayed that the suit by the Plaintiff be allowed. 61.Upon cross examination, he stated that he lived approximately half (½) km away from the home of PW1. He added that PW4’s home was 300metre away from the home of PW1. 62.He confirmed that his home was near to that of PW1 unlike that of PW4. He further confirmed that PW1 and his family live on LR No. 410 and that the Defendant and PW1 live close to each other in different homesteads. He also confirmed that the Defendant lived on his father’s land. 63.PW5 stated that both the Defendant and PW1 claim the suit land. He also stated that he never went to the District Officer/Assistant County Commissioners office over their dispute. He added that he did not belong to PW1’s family. 64.He went on to state that PW1 had a 1st wife who lived on the suit land in the same house where PW1 lives. He added that PW1’s father also used to live on the suit land and that PW1 and the Defendant are from one great grandfather or ancestor. 65.He admitted that he did not know the boundary between the suit land and LR No. 409. PW5 stated that PW1 lived on the suit land even before his parents passed on. He stated that PW1 had constructed his house on the suit land. 66.That marked the close of the Plaintiff’s case. Defence Case 67.Fredrick Onyango Odhiambo testified as DW1 where he produced his replying affidavit sown on 23rd April, 2024 which was adopted as his evidence in chief. In it he deposed that the applicant’s case was pure lies and machinations. He had sued the Defendant’s mother in Citation No. 60 of 2022. That the plaintiff was on a fishing expedition, and he filed several suits and withdrew them. That the deponent and his entire family lived on the land. The applicant shall have a place to move to after eviction takes place. The property was vacant. The applicant no longer occupied the o.22 ha. It was untrue that the applicant resided on the land, rather that it was until 2007 or 2008 when the first wife or the applicant died and he remarried and rebuilt for his second wife on the suit property. The applicant promised to give the Respondent parcel No. 1386 and it happened so until there was a dispute that resulted in a court case on it. The respondent took possession of the said parcel and the Respondent allowed him to reside on the suit land hence cannot claim adverse possession on the suit land. That in Citation Cause no. 60 of 2022 the court held that the applicant wanted to use all machinations to get the suit land. The citation was based on adverse possession. When he failed to prove it the court dismissed his claim there. That the survey report relied on by the applicant was unprofessional. The county surveyor did a report wherein he found that he disputed area was 0.22 Ha. 68.He also relied on his list of documents annexed to the replying affidavit marked as F001 to F0011 save for F003 annexed to the replying affidavit. Documents were produced and marked as DEXhibit 1 to 11 respectively. 69.Upon cross examination, he stated that they previously used to live within their grandfather’s homestead. He stated that he did not know the parcel of land within Kodera Kamiyawa area. He testified that PW4 does not stay on the suit land. He added that he stayed about 2-3 kms away. 70.He added that PW5 lived in another direction approximately 2kms away. He stated that the Plaintiffs occupation of the suit land was not peaceful. He denied having ever sued the Plaintiff for eviction from the suit land. 71.He stated that the Plaintiff filed a suit in Oyugis Law courts being No. 32 of 2022. He added that the surveyor prepared a report (PEXhibit 14) which showed that they were in his land through trespass. 72.DW1 added that the Plaintiff later withdrew the suit and later filed a citation for his mother to take grant of letters of administration but it was dismissed. He also stated that there was an appeal filed at Homabay. 73.He went on to state that he took a grant and became administrator of his father’s estate thus the appeal was withdrawn. He stated that PEXhibit 14 confirmed that LR No. 409 was owned by PW1. DW1 also stated that his family and that of PW1 own the suit land as per PEXhibit 14. 74.DW1 stated that area A as drawn in PEXhibit 14 appeared smaller than area B. He added that area A was 0.48 hectares, B is 0.22 hectares while C is 0.50 hectares in area. 75.He stated that PW1 was only in occupation of 0.06 hectares in area. He further stated that this suit was filed on 7th February, 2024 while Dexhibit 3-F004 was made on 2nd May, 2024. He confirmed that PW1 was not present on the ground when DExhibit 3 was generated. 76.DW1 stated that they could only use DExhibit 3 and not PEXhibit 14. He also stated that PW1 only had a home on the suit land but never cultivated on the suit land. He confirmed that there were two houses on the suit land. 77.He stated that his son demolished a 3rd house. He added that he never found PW1 with his family living on the suit land. He confirmed that he knew his first wife. He admitted that he had no minutes regarding a house. He also confirmed that PW1 never lived on the suit land in peace. 78.DW1 admitted that he had no court order relating to the suit land. He stated that there was an assault case arising out of the land dispute but that the suit land was not mentioned in the criminal case. 79.Upon re-examination, he stated that there were three houses but later remained two since PW1’s son demolished the 3rd house as he did not want the current land dispute. 80.He stated that PEXhibit 14 showed dimensions as per the key which interpreted the sketch. He added that it focused on the suit land. He went on to state that his late father was the owner of the suit land. 81.DW1 stated that they expected PW1 to give them a homestead in front of theirs. He added that the entry of PW1 into the suit land was by consent. 82.Lawrence Odhiambo testified as DW2. It was his testimony that the suit parcel was West Kasipul/Kodera/Kamiyawa/410. He further testified that the Plaintiff had first claimed that they (family of Johnson) had encroached to his parcel No. 409. It was his testimony that they owned parcel No. 410. 83.He produced his witness statement which the court adopted his evidence in chief. He testified that after the Plaintiff complained that they had encroached, the court at Oyugis Magistrate court gave an order that a surveyor visits the land. 84.He went on to testify that the surveyor found out that it was the Plaintiff who had encroached onto parcel No. 410. DW2 testified that the beacons were placed in the presence of the Plaintiff and his family. He added that he went and ploughed the land since he believed that the surveyor who came on the ground was fake and did not know what he was doing. 85.He testified that there was a ruling in Oyugis case No. 32 of 2022. He went on to testify that the Plaintiff again filed a different case No. 60 of 2023 which he later withdrew. He added that he then appealed in Homabay High court in case No. E052 of 2024. 86.He testified that when the latter case was still going on. He again withdrew that one and then filed the present suit. He also testified that there was an attempted mediation in church but that the priest confirmed that the Plaintiff was stubborn. 87.He testified that there was a fight that had ensued when the Plaintiff destroyed the beacons and replaced them. He also testified that the pastor attempted to reach the Plaintiff but they did not find him resulting in failure of the mediation. 88.It was his testimony that they only knew that the Oyugis case No. 32 of 2022 had been concluded a day to the surveyor coming to the ground. 89.He testified that in the citation case No. 32 of 2022 he was told that he had no legal authority to claim to their land yet he had his two pieces of land in his name. 90.DW2 testified that the Plaintiff was his step uncle while the Defendant was his elder brother. He testified that he had brought materials to construct a house on the parcel of land. 91.He testified that the Plaintiff blocked and quarrelled him stating that he did not respect the court’s ruling. He added that he went and cut the fence that had been placed by the surveyor 92.On cross examination, DW2 confirmed that in Oyugis case No. 32 of 2022, the Plaintiff had sued the family of Johnson Odhiambo. He was referred to Pexhibit 5- the suit in Oyugis No. 32 of 2022 where he stated that he sought for orders that he be declared the sole owner of parcel No. 409. 93.He stated that their family were owners 410 and that they had encroached into parcel No. 409. He stated that he knew the issue was on encroachment 94.He admitted that when the surveyor went to the ground, he found that PW1 was the one who had encroached onto their parcel no. 410 hence his case could not proceed. He referred to PExhibit 14 being the surveyors report dated 31st May, 2023 where he confirmed the report which made a sketch of parcel No. 409 and 410. 95.He stated that it pointed out where both families were residing. He added that the report had both a shaded and unshaded part. He stated that areas marked A on the map showed the land occupied by 410. He further stated that it showed the area of the owner of parcel No.409 being the Plaintiff who had encroached and had put up three houses on the land on the part marked B. 96.He went on to state that the Plaintiff withdrew case no 32 of 2022. He referred to citation no 60 of 2022 where the Plaintiff wanted to be joined in the title of his father. DW2 stated that he did not know if the Applicant wanted to cite his mother to take out letters of administration. 97.He stated that following the dismissal of the citation case with costs, he appealed to the Homabay High Court as appeal No. 52/2023. He added that his brother Fredrick took out the grant to his father’s estate on 8th November, 2023. He confirmed that during the pendency of the appeal in the High court, the Plaintiff then withdrew the appeal. He added that hewithdrew it after the grant was issued to his brother. DW2 also stated that the Plaintiff entered their land in 2010 98.DW2 stated that PW5’s home and parcel number 410 was about half kilometre or 500 metres, less than a kilometre. He added that Dismas Ochoros home from parcel no. 410 was about 1km from the parcel. He confirmed that the two parcels did not come in from their village but a different one. They are form a different village an clan. I know them. 99.He confirmed that the Plaintiff was in occupation of their father’s land. He however denied that the Plaintiff had been in occupation for over 20 years. 100.He also stated that he was not aware that Benard my brothers witness stated the land was fallow all along. He confirmed that the Plaintiff’s son had been was born on parcel no 409 that was on parcel No. 408. He added that it could be parcel no. 408. DW2 stated that Bernard Omondi father was called Mathews Otieno and that it the Plaintiff lived on his land before moving to their land in 2013. 101.He confirmed that some elders tried to call meetings and admitted that they had not called the clan elder to court. 102.DW2 stated that he was not present in the meeting where the Plaintiff agreed with his brother to exchange some parcel. He admitted that he was present when the brother told him to vacate but he refused. 103.He added that it was in 2013 when he realised, he was on parcel 410 and not 409. He confirmed that this was about 10 to 11 years. He stated that he has been on the land thinking he was on 409 yet he was on 410. DW2 further stated that at the time he was born, the Plaintiff was not on 410. 104.Upon re-examination, he stated that the Oyugis 32 of 2022, surveyors report was made so that it is known who had encroached. He added that as at 2022, the Plaintiff claimed parcel no 410 as his land. 105.He stated that after the surveyor’s report, he withdrew that case when he knew the land was his. He added that the Plaintiff got to know that parcel No. 410 did not belong to him then filed a claim for part of parcel No. 410. 106.He confirmed that the two men that testified in court do not know the boundary between 410 and 409. He also confirmed that when the survey was being done, the two witnesses were not on the ground. He stated that the two men have never been engaged in the determination between parcels 409 and 410. 107.DW2 stated that the sketch on the surveyor report was totally different from the correct position on the ground. He confirmed that their family occupied the larger part than the sketch showed. 108.He confirmed to the court that the boundary was known before the surveyor came. 109.That marked the close of the Defence case. Plaintiff Submissions 110.Counsel for the Plaintiff gave a background of the case and identified two issues for determination. The first issue was when does time start running and to whom does time run against? He relied on Section 7 of the Limitation of Actions Act and the case of Mbugua Njuguna V Elijah Mburu Wanyoike & Another [2004] eKLR. 111.It was his submission that time runs against the registered owner of the property who has a right to recover it but fails to do so within the statutory period. He submitted that in the current matter, time started running against the Deceased (Johnson Odhiambo Ogolo) when the suit property was registered in his name in 1980, while the Plaintiff was already in occupation. 112.The second issue was whether the Plaintiff has proved their case on balance of probabilities? Counsel submitted that in order to succeed in a claim for adverse possession, a Plaintiff must demonstrate they have occupied the land openly, peacefully, and continuously for a period exceeding 12 years without the owner's permission. 113.He relied on the case of James Muniu Mucheru V National Bank of Kenya Limited [2019] eKLR and Section 107 of the Evidence Act. It was his testimony that possession must be inconsistent with the enjoyment of the land by the true owner. He added that physical acts such as cultivating crops, planting trees, and constructing permanent homes serve as evidence of possession. 114.He also added that time only ceases to run when the owner takes legal proceedings for recovery or makes an effective entry into the land. 115.Counsel submitted that Plaintiff provided evidence of having being born on the land, buried family members there, and maintained continuous occupation for over 40 years. He argued that this was supported by a Surveyor’s Report (P EXH 14), which confirmed the Plaintiff had constructed houses and was farming on the disputed 0.5 Ha portion. 116.He went on and submitted that the Defendant’s attempts to assert rights through local administration or by fencing the property in 2022 were argued to be ineffective because the 12-year statutory period had already lapsed. Defendants Submissions 117.Counsel for the Defendant also filed his submissions dated 13th January, 2026 where he identified two issues for determination. The first issue was whether the Plaintiff established his case on a balance of probability. While submitting in the negative, he argued that the Plaintiff failed to meet both the general burden of proof and the specific requirements for a claim of adverse possession. 118.He relied on the Court of Appeal case of Anne Wambui Ndiritu V Joseph Kiprono Ropkoi & Another 1 EA 334t and Section 107 of the Evidence Act. 119.He further cited the case of Kimani Ruchine V Swift Rutherford & Co. Ltd (1980) KLR and submitted that the Defendant pointed out that the Plaintiff admitted his peaceful coexistence on the land was interrupted in 2022 when the Defendant took possession by depositing building materials. 120.It was counsel’s submission that under the Limitation of Actions Act, time ceased to run once this re-entry occurred. 121.He also submitted that during cross-examination, the Plaintiff admitted that he never enjoyed peaceful occupation and his witnesses also confirmed his occupation experienced violence which contradicts the requirement that possession be peaceful. 122.It was his submission that the parties were relatives where the Defendant is a nephew to the Plaintiff. He argued that the Plaintiff's entry was permissive based on family ties and informal agreements to exchange land. He cited the case of Haro Yonda Juaje V Sadaka Dzengo Mbauro & another KEHC 6665 (KLR) and Majimbo V Jesang KEELC 4441 (KLR). 123.Counsel for the Defendant contends that the Plaintiff failed to prove that the registered owner Johnson Odhiambo Ogolo (deceased) knew of the adverse occupation. He relied on the case of Titus Kigoro Munyi VPeter Mburu Kimani [2015] eKLR. 124.He further submitted that the Plaintiff claimed 0.5 Ha, and when the court-ordered survey in May 2023 found he only occupied 0.22 Ha. He added that by the time of the hearing, the Plaintiff was only in possession of 0.06 Ha. It was counsel’s submission that the the adverse possession claim for 0.5 Ha was premature and incompetent. 125.On the final issue of costs, he relied on Section 27 of the Civil Procedure Act and submitted that the same should be awarded to them. 126.He also filed a supplementary submission dated 6th February, 2026 where he submitted that the photographs produced by the Plaintiff to demonstrate developments on the land are legally inadmissible since they lack the mandatory certification required for electronic records. He relied on Section 106B of the Evidence Act and the Court of Appeal case of County Assembly of Kisumu & 2 Others V Kisumu County Assembly Service Board & 6 Others [2015] eKLR. 127.It was his submission that the Plaintiff’s occupation was not peaceful, a necessary element for adverse possession, by virtue of the criminal proceedings and charge sheets as evidence of violent occupation. He relied on the cases of Wambugu V Njuguna KLR 172 and Mbira V Gachuhi 1 E.A. 137. He further submitted that the Plaintiff admitted in his supporting affidavit that the Defendants took possession of the land in 2022, removed his fence and deposited building materials 128.It was his submission that the said admission was fatal to the claim as it proved that possession was not exclusive and that the running of time for adverse possession was interrupted. He cited the case of Daniel Toroitich Arap Moi V Mwangi Stephen Muriithi [2014] eKLR. 129.He also submitted that the kinship ties between the parties further negate the requirements for adverse possession. In conclusion, he urged the court to dismiss the Plaintiff’s claim with costs. Analysis and Determination 130.This Court has carefully considered the submissions, the parties’ pleadings, the law and the evidence. It is of the view that the issues that arise for determination are:a.Whether the plaintiff proved her claim for adverse possession of the portion of land in issue.b.What order to issue and who to bear the costs of the suit. 131.On the first issue, it is trite law that he who alleges must prove. Section 107 of the Evidence Act provides;1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 132.Further, Section 109 of the Evidence Act provides as follows;“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 133.It was upon the applicant to prove his case to the required standard. 134.The doctrine of adverse possession is founded under Sections 7, 13, 37 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Defendant was aware of such. Section 7 of the Act provides as follows:“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. Section 13 “(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…” 135.It was the Plaintiff’s case that he had been living with his family in the suit parcel West Kasipul/Kodera/Kamiyawa/410 peacefully and uninterrupted for over 42 years. The Plaintiff claimed that he had been in occupation of a portion of the Defendant’s parcel being 0.5ha with the Defendant’s knowledge. It was not in dispute that West Kasipul/Kodera/Kamiyawa/409 was owned by the Plaintiff bordering the suit land that belonged to the Defendant. 136.It was PW1’s testimony that in the year 2022 the Defendant interfered with the suit parcel where the Plaintiff had allegedly cultivated and claimed that it belonged to him and his family. The Plaintiff called the Land surveyor (PW2) who confirmed that he had surveyed the portion of the suit parcel in dispute and gave a report on the same. However, upon cross examination, he admitted that he was not qualified as a land surveyor at the time he did the survey. He admitted that the report was therefore null and void. 137.He also called the national land surveyor (PW3) from the County who testified that the portion to which the Plaintiff claimed to have occupied was not 0.5 Ha but 0.22 Ha instead. He also confirmed that the boundary between the two parcels were separated by barbed wire fence. PW4 and PW5 on the other hand gave evidence in support of the Plaintiff’s case but they could not confirm the exact boundary between the Plaintiff and Defendant or the outcome of the dispute. 138.The Defendant on the other hand contends that the Plaintiff’s occupation was never peaceful as alleged as the same was interrupted in 2022 when the Defendant took occupation on the subject parcel. He added that the Plaintiff was only permitted occupation since they were relatives and that kinship ties negate a claim for adverse possession. 139.In the Court of Appeal case of Kisumu Civ App. No. 110 of 2016 Richard Wefwafwa Songoi V Ben Munyifwa Songoi [2020] eKLR the court held that a person claiming adverse possession must establish the following:(a)On what date he came into possession.(b)What was the nature of his possession?(c)Whether the fact of his possession was known to theother party.(d)For how long his possession has continued and(e)That the possession was open and undisturbed for the requisite 12 years 140.In addition, the case of Abdulkhall Mohamed Abdulkhalik Mazurui & 2 others V Josiah Kafuta J. Mtila & another [2021] KECA 653 (KLR) held that:“The burden of proving adverse possession lay with the 1st respondent who made the claim. That burden was to be discharged by him demonstrating, on a balance of probabilities, that his possession was adverse; open, peaceful, without consent of the 1st and 2nd appellants and for an uninterrupted period of 12 years, expressed in Latin as nec vi, nec clam, nec precario Or, as Lord Hoffmann put it in R v Oxfordshire County Council ex p. Sunningwell Parish Council [2000] 1AC 335 at 350, 'not by force, nor stealth, nor the licence of the owner'. 141.It is not in contention that the dispute is in relation to encroachment by the Plaintiff onto part of the Defendant’s parcel. The parcels of land herein, being parcel No. 409 and 410 were marked by general boundaries which survey delineations were approximations hence until the boundaries could be established and fixed, the applicant could not claim to have known exactly which extent of his land he occupied or the neighbour’s that occupied. Thus, until the boundaries were established and known and then the applicant began to reside openly, continuously and without stealth and permission of the Defendant on his specific parcel for over twelve years, the applicant cannot claim to have resided on the defendant’s portion of land adversely. He has not adduced congent evidence to that effect. 142.It is my opinion that from the evidence adduced and testimonies, it was clear that the boundaries could not be ascertained up to the time PW1 engaged the surveyors. That was during the pendency of the citation No. 60 of 2022. Also, from the evidence of PW1 and PW5 it was clear that all along before the surveyors went to the ground to confirm who had trespassed onto the other’s property the parties were residing on the land as believing that each occupied their respective parcels. In fact, PW1 clearly stated in his written statement that he adopted that there was no fence separating the two adjacent parcels and after adjudication he assumed the portion he was on was his. This clearly sows that neither he nor the defendants knew that the disputed portion lay on whose side as to found the important ingredient of adverse possession that the owner of the land against whom the claim is sought should know and let the claimant to be on his parcel of land without his permission. The facts herein point out to an occupation where the plaintiff and even his father or others claiming through him were permitted to get onto to the land hence cannot claim adverse possession. Even the evidence of DW! shows that at one time the claimant was given permission to be on the land in exchange of the defendant being on parcel no. 1386 which exchange failed when a dispute arose on the said parcel. 143.From the evidence of PW3, he confirmed that the boundary between the two parcels was a barbed wire fence. As to when that was erected, no evidence was led to show it. It is my view that the boundary having not been fixed or established by the surveyor could not be said to have been a fixed one as to yield a definite claim of occupation for a period longer than the law permits for recovery of land by an owner. In any event PW1 stated that after adjudication he assumed that the portion belonged to him. It was upon him to show when the boundary was erected. He did not. 144.Lastly, his claim was for 0.55 Ha of land he occupied of the Defendant. This claim he brought PW2 to support by producing P. Exhibit 17, a report dated 10/06/2022. But PW2 admitted that he was not qualified as a surveyor at the time he did the measurements and report. Furthermore, his evidence was discounted by the surveyor in charge of the County, who testified as PW3. He stated that the area in dispute was 0.22 Ha. he produced his report as PExh. 14. This sharp difference in the portion claimed and that proved to be in issue clearly shows that the Plaintiff’s claim failed completely on that aspect as to firm the ingredient of specificity in adverse possession. Furthermore, it goes to show or confirm that the occupation by the claimant of the disputed portion was an encroachment rather than adverse possession and the said party should do the right thing: restrict himself to his portion on parcel No. 409. 145.It is this court’s view that an inference from the evidence above confirms that the boundaries were not fixed in the first place thus necessitating the engagement of the services of a surveyor. 146.In the case of Lewa V Mwagandi [2015] KECA 532 (KLR) the court held as follows:“The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 147.It is also this court’s view that the Plaintiff failed to provide a precise description or survey of the portion they occupied. While PW1 claimed adverse possession on 0.5 hectares, the evidence of PW3 and PW4, corroborated by the report, suggested that PW1’s homestead occupied 0.22 hectares. 148.Ironically, even though PW2 conducted a ground survey confirming that the Plaintiff and his family occupied 0.5ha of the Defendant’s portion, he also admitted that he was not qualified to conduct the same and that his report was null and void. It is sad that the Applicant proceeded to move the court for a claim over a portion of the Respondent’s land without ascertaining the proper size thereof. This fundamentally destroyed the Applicant’s case. 149.It is my opinion that in the circumstance, the Plaintiff failed to meet the legal and evidentiary threshold for the grant of the relief of adverse possession. It is also my view that the Plaintiff’s remedy, if any, lay in an action for encroachment against the Defendant and not in a claim for adverse possession. 150.It is clear that the Applicant proved the existence of some of the elements of adverse possession, to wit, that he had been occupying the portion he claimed for a period longer than the twelve years that the law provides for recovery of land by an owner who is not in possession, and that the occupation was uninterrupted and without the consent of the Respondent. This brings into question whether, under Sections 7 and 13 of the Limitation of Actions Act the Defendant can recover the portion the applicant occupies. In my humble view, he cannot since that action is time barred. The parties have to ponder over this conundrum. 151.This Court doubts if the Defendant could evict the Claimant from the disputed parcel of land had it been that he had proved the ingredients of adverse possession except one, which is, failing to shown the exact size and location since his title thereto could have been extinguished. But it is not the case herein, which was a clear one of encroachment by the applicant on a part of the land which neither he nor the defendants had ascertained was part of which parcel of land between West Kasipul/kodera Kamiyawa/409, and 410 as to found knowledge and lack of permission to occupy it, hence when boundaries were established or shown, each party was supposed to live on their respective portions from the date of that clarification. Thus, the 12 year period has not expired since. 152.The upshot is that, this court finds that the Plaintiffs’ claim for adverse possession is unmerited and is therefore dismissed with costs to the Respondent. 153.Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 6TH DAY OF MAY 2026.HON. Dr. iur NYAGAKA.JUDGEIn the presence of,Langat R. K Advocate for the ApplicantOmuthe Advocate for the Respondent