https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3857

Mwita v Marwa (Land Originating Summons E003 of 2025) [2026] KEELC 3857 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEELC 3857 (KLR) Republic of Kenya In the Environment and Land Court at Migori Land Originating Summons E003 of 2025 FO Nyagaka, J June 16, 2026 IN THE MATTER OF LIMITATIONS OF ACTIONS ACT AND IN THE MATTER OF TITLE NO.: NYABASI/BOMERANI/195 AND IN THE MATTER OF CLAIM FOR ADVERSE POSSESSION Between Makorere Mwita Applicant and Sangayia Marwa Respondent Judgment 1.The Applicant/Plaintiff filed the instant Originating Summons dated 14th January 2025 on 22nd January 2025. He brought it under Sections 7 and 38 of the Limitation of Actions Act, Order 37 Rule 7 of the Civil Procedure Rules 2010 and (what he termed as) all enabling provisions of the law. He claimed that he had acquired title number Nyabasi/Bomerani/195 by way of adverse possession. He prayed for the following reliefs:1.A declaration be and is hereby made that the Applicant has been in open, continuous, uninterrupted possession and occupation of all the parcel of land known as title number Nyabasi/Bomerani/195 for over 12 years.2.A declaration that the respondent’s title to the suit had been extinguished by virtue of the doctrine of adverse possession.3.A declaration that the title of the suit land is being held by the respondent in trust for the applicant.4.The applicant be registered as the sole proprietor of the said parcel of land, namely, title number Nyabasi/ Bomerani/195 in place of the respondent Sangayia Marwa.5.The Respondent be and is hereby ordered to execute all relevant instruments to facilitate the transfer of all that parcel of land known as Nyabasi/Bomerani/195 into the names of the applicant and in default the Deputy Registrar to execute the same in place of the respondent.6.A permanent injunction be and is hereby issued restraining the respondent herein, his agents, servants and/ or anyone claiming under him from entering, trespassing, charging, transferring and/ or in any way dealing with the suit land.7.Costs of this cause be paid by the respondent. 2.The Summons was based on a number of grounds, being that the applicant and his family had been in notorious, uninterrupted possession of the suit land since 1974, to date, which possession was continuous for over 12 years. The respondent’s title to the suit land had been extinguished in the year 1974 when the respondent failed to complete the sale transaction they entered into with the applicant over the property by failing to procure the Land Control Board consent within the requisite six months. The applicant paid the respondent who received 5 cows as full and final consideration for the purchase of the suit property. The sale agreement became invalid and unenforceable by operation of the law in 1974. The applicant had been in uninterrupted possession of the suit land having been dispossessed the respondent of the same in 1974. 3.His occupation thence, that is since 1974, had been open and non-permissive to the respondent when he paid the full purchase price. The applicant had the intention to possess the land to the exclusion of the respondent since 1974 when consideration thereof was paid in full. The occupation was not forceful. The applicant had the intention to possess the land to the exclusion of the respondent and had built homes for his four wives, planted coffee and mango farms and buried his kin, including one of his sons, on the land. 4.The Originating summons was supported the Affidavit sworn by the applicant on 14th of January 2025. He reiterated the contents of grounds in support of the summons but in deposition form hence this court need not rehash the same. However, he added to the depositions annextures which were MM 1, being a letter of confirmation from his area chief about his occupation, MM 2 pictures of homes, farms and a graveside showing the occupation, and MM 3 a copy of the certificate of official search over the suit land, dated 6th January 2025. He prayed that the summons granted as prayed. 5.The Applicant/Plaintiff testified orally that his claim against the defendant was for his registration of the suit land that he (plaintiff) had occupied and had been using to rare cattle all the while since he bought it from him. In support of the testimony he produced a copy of his identity card as PExh 1, and a letter dated 3rd January 2025, from the Area Chief as PExh 2, Eight photographs PExh 3(a) to (h) and a certificate of official search, dated 6th January 2025 as PExh 4. 6.He added that he had lived on the land to date and wished to have it registered in his name so that he would distribute it to his family members. Further that his neighbors knew he had been living on the suit land ever since 1974 when he moved onto it. That nobody had ever claimed the land from him. He added that after filing the suit he searched for the owner to serve him but could not find him whether in Kwiho or Kwitembe. Further, he had bought the land from the owner Sangayia Marwa in 1974. The witnesses to sale agreement were John Gitangita, Nyamohanga and Nyamangonchi Kubwabe. He also produced a certificate in accordance to Section 106B of the Evidence Act to show that the photos he produced were taken by him in accordance with the law. This closed the plaintiff’s and defense cases. He prayed for judgment as pleaded in the originating summons. Issue, Analysis And Determination 7.This court carefully considered the pleadings, the evidence tendered by the Applicant and the Law. I am of the view that the issues that commend themselves for determination are two: one, whether the plaintiff has proved his case on a balance of probabilities hence merits the grant of the reliefs sought; and two, who to bear the costs of the Originating Summons. 8.The law on adverse possession stems of the provisions of the Limitation of Actions Act. It is the statute that lays down the corollary of the failure of an owner of land to claim it from one who occupies it without his permission for a long time. Section 38(1) of the Act, Chapter 22 of the Laws of Kenya, as read with Sections 7, 13 and 17 of the Act supply the relevant text of the concept. Thus, a claim for adverse possession succeeds only when a party claiming the land proves the elements the law gives. 9.Section 7 of the Act is couched on 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.” 10.The Act makes a further provision for adverse possession, at Section 13, as follows:“(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.” 11.Under Section 38 of the Limitation of Actions Act, a party claiming land by adverse possession may approach the court for a declaration that the property devolved to him in accordance with the doctrine. Section 38(1) of the Act states as follows;“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, 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 a proprietor of the land.” 12.These provisions have been interpreted by and applied in a number of court decisions. The first one this Court is guided by is the locus classicus of Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR, wherein 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. 13.Therefore, for a claim of adverse possession to succeed certain conditions 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. 14.This court thus needs to know whether the plaintiff has tendered evidence to prove the nec vi, nec clam, nec precario principle. In Abdulkhall Mohamed Abdulkhalik Mazurui & 2 others v Josiah Kafuta J. Mtila & another [2021] KECA 653 (KLR) the Court of Appeal held,“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. vs. Oxfordshire County Council ex p. Sunningwell Parish Council [2000] 1AC 335 at 350, 'not by force, nor stealth, nor the licence of the owner'. See also Kimani Ruchine vs. Swift Rutherford & Co. Ltd [1980] KLR on this point.” 15.Applying the above principles and law to the facts in the instant case, the Applicant’s pleadings and evidence were that he bought the suit land from the Respondent, Sangayia Marwa, in 1974. The witnesses to the sale agreement were John Gitangita, Nyamohanga and Nyamangonchi Kubwabe. He paid for it five cows and the Respondent put him into possession. He occupied and has been using the parcel of land to rare cattle, planted mangoes, other trees and coffee plants. His neighbors knew he had been living on the suit land ever since 1974. Furthermore, he has settled his family on the land since then and now wishes to have the land registered in his name that he may distribute it to his family. In support of the testimony he produced a copy of his identity card as PExh 1, and a letter dated 3rd January 2025, from the Area Chief as PExh 2, Eight photographs PExh 3(a) to (h) and a certificate of official search, dated 6th January 2025 as PExh 4. He also produced a certificate in accordance to Section 106B of the Evidence Act to show that the photos he produced in evidence were taken by him in accordance with the law. 16.From the evidence adduced, this Court is of the view that the applicant has been residing on the parcel of land in issue openly, continuously, not in stealth and without permission of the owner, having entered the land in 1974 upon purchasing it from the owner, Sangayia Marwa, and the agreement having not been processed in accordance with the law as to materialize accordingly. His occupation is characterized by the planting of coffee and mango plants besides other crops and the raring of cattle on it while building for and settling his four wives on it and burying his kin thereon. 17.I therefore find that the applicant has proved his case on a balance of probabilities that he is entitled to the reliefs sought. I enter judgment for the Applicant against the Respondent as follows:a.A declaration is hereby issued that the Applicant has been in open, continuous, uninterrupted possession and occupation of all the parcel of land known as title number Nyabasi/Bomerani/195 for a period of over 12 years.b.A declaration is hereby issued that the Respondent’s title to the suit land, namely, Nyabasi/Bomerani/195 has been extinguished by virtue of effluxion of time and adverse possession.c.A declaration is hereby issued that the title of the suit land is being held by the Respondent in trust for the applicant.d.There is hereby issued an order that applicant be registered forthwith as the sole proprietor of the said parcel of land, namely, title number Nyabasi/ Bomerani/195 in place of the Respondent, Sangayia Marwa.e.The Respondent is hereby ordered to execute all relevant instruments to facilitate the transfer all that parcel of land known as Nyabasi/Bomerani/195 into the name of the applicant in he next 30 days, in default the Deputy Registrar to execute the same in place of the Respondent.f.A permanent injunction is hereby issued restraining the Respondent, his agents, servants and/ or anyone claiming under him from entering, trespassing onto, charging, transferring and/ or in any way dealing with the suit land.g.As this Originating Summons was undefended, there shall be no order as to costs. 18.It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 16TH DAY OF JUNE 2026.HON. DR. IUR NYAGAKA,JUDGEIn the presence of,Ms. Onyangore for the ApplicantNo appearance for the Respondent