https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4415

Mang’eni & another v Okumu alias Richard Okumu Wandera (Environment and Land Case E022 of 2023) [2026] KEELC 4415 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEELC 4415 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Case E022 of 2023 L Waithaka, J July 7, 2026 IN THE MATTER OF ASCERTAINMENT OF OWNERSHIP OF THE WHOLE OF L.R NO. SAMIA/BUJWANGA/373 AND L.R NO.SAMIA BUJWANGA/1741 CREATED FROM SUBDIVISION OF L.R NO. SAMIA/BUJWANGA/350 Between Jared Bwire Mang’eni 1st Applicant Fredrick Bwire Mang’eni 2nd Applicant and Richard Okumu alias Richard Okumu Wandera Respondent Judgment Background 1.The applicants took up the originating motion dated 7th June 2023 for determinations of the questions as to whether they have become entitled to the parcels of land known as L.R Nos. Samia/Bujwanga/373 ANd L.r No.samia Bujwanga/1741 on account of having in adverse possession thereof. In the alternative, the applicants seek a declaration that the respondent holds the parcels of land known as L.R NOS. Samia/Bujwanga/373 And L.r No.samia Bujwanga/1741 in trust for them. The applicants seek consequential orders following the two questions above, which are: -i.An order compelling the respondent to transfer the parcels of land known as L.R NOS. Samia/Bujwanga/373 And L.r No.samia Bujwanga/1741 to them and in default the Deputy Registrar of this Court be authorized to execute all necessary documents/instruments to effect such transfer on behalf of the respondent.ii.The Land Registrar to dispense with the legal requirement of producing and/or surrender of the respondent’s original title deeds to the aforementioned parcels in the event the respondent is uncooperative.iii.The respondent be condemned to pay costs of the suit. 2.The application is supported by the affidavit of 1st applicant, Jared Bwire Mang’eni, sworn on 7th June 2023 in which the deponent has inter alia deposed that the applicants are the children of Wilson Mange’ni Okumu who is a brother to the respondent, Richard Okumu Wandera; that the respondent is their uncle; that the parcels of land known as Samia/Bujwanga/350, 373 and 377 were during land adjudication, registered in the name of the respondent because their father was away in Mombasa; that the parcel of land known as Samia/Bujwanga/377 rightfully belongs to the respondent while 373 belonged to their father and that 350 was to be equally shared between their father and the respondent. 3.The 1st applicant further deponed that his father established his home in the parcel of land known as Samia/Bujwanga/373 where they have lived since 1994. 4.It is the applicants’ case that they are entitled to ½ share of the portion of land known as LR Samia/Bujwanga/350, which portion of land comprises the parcel of land known as LR Samia/Bujwanga/1741 measuring 0.59 hectares being a sub division of LR Samia/Bujwanga/350; and Samia/Bujwanga/373 on account of having been in open, peaceful, continuous, uninterrupted and exclusive possession thereof for a period exceeding 12 years. 5.The applicants further contend that the registration of the respondent as the proprietor of the parcels of land known Samia/Bujwanga/373 and Samia/Bujwanga/1741 is subject of a trust in their favour. 6.In reply and opposition to the application/suit, the respondent filed the affidavit (replying) which he swore on 12th October 2023 in which he denies the applicants claim to entitlement of the suit property and contends that the applicants forcefully entered the parcel of land known as Samia/Bujwanga/373 in 2020 and put up three houses thereon. Concerning parcel number Samia/Bujwanga/1741, he deponed that it is used by Josephine Masonga Oreki, the second wife of his elder brother, Wilson. 7.According to the respondent, the applicant’s claim for adverse possession cannot succeed because they have not been in possession of the suit property for over 12 years and because their stay in the suit property has not been peaceful. Hearing And Evidence Applicants/Plaintiffs case 8.When the suit came up for hearing, the 1st applicant/plaintiff who testified as PW1, relied on the affidavit he swore in support of the application/suit after it was adopted as his evidence in chief. 9.In cross examination, the 1st applicant/plaintiff stated as follows: -“we are claiming parcel number 373 because my father settled in parcel number 373 and we have always lived there.Parcel number 373 belonged to our grandfather but he died before I was born.The information we got was that the whole family used to live in parcel number 377 but my grandmother and my father moved to parcel number 373.At some point my father moved to parcel number 401 with his younger wife but left us behind in 373.My step mother does not utilize parcel number 1741. My brother and I use it….My father moved to parcel number 373 and left the respondent in parcel 377.My brother and his brother have never had a case in court.” 10.In re-examination, the 1st applicant/plaintiff stated as follows: -“I am not aware of any case in court between my father and his brother or us and the respondent. I am only aware of a time when there was a dispute and my grandmother called the chief for a sitting with my father and his brother.I am claiming parcel number 373 because this is where I reside.” 11.The applicants/plaintiffs also availed Clement Oduke Malo (PW2), a retired chief, who relied on his recorded statement, after it was adopted as his evidence in chief. 12.In cross examination, PW2 stated as follows: -“Land adjudication for the area ended in 1974. …the two parcels were registered in 1974. Parcel number 401 was also registered in 1974. All the above parcels were registered in the name of the Defendant because the plaintiff’s father was not around at that time.Parcel number 401 was registered in the name of Wilson because that time he had returned.It is true that the stepmother to the plaintiff is the one utilizing a portion of parcel number 1741…but she has not been issued with a title deed.” 13.In re-examination, PW2 stated as follows: -“Land Adjudication in Samia region took a long period of time but was completed in 1974. Wilson was not present when parcels 377 and 373 were being registered….Parcel number 1741 is utilized by the families of the plaintiff and the defendant. Part of land is utilized by the defendants and the other portion by the plaintiff’s and their step mother.” 14.Wycliff Bwire who testified as PW3, relied on his witness statement recorded and signed on 15th September 2025 after it was adopted as his evidence in chief. 15.In cross examination, PW3 stated as follows:“The plaintiffs are my neighbours.I know Patrick Juma, he is my neighbor.His land shares a boundary with parcel number 373 on one side and boundary with my land on the other side. The plaintiffs have never lived in Patrick’s land.Before the plaintiffs built their houses on parcel 373, their grandmother had built a house where they were all living.The plaintiffs also utilize a portion of parcel number 350 (1741).I am not aware that the plaintiff’s stepmother is the one utilizing a portion of 1741.” 16.Wilson Mang’eli Okumu, PW4, informed the court that the plaintiffs are his children; that the defendant is his younger brother and that he resides in parcel number 401 which was given to him by his uncle, Musungu Maina, with his younger wife. 17.PW4 further informed the court that the applicants/plaintiffs live in parcel No. 373 while the defendant lives in parcel number 377; that land parcel number 350 was subdivided into two parcels, 1741 and 1742; that his children, the plaintiffs, utilize parcel number 1741 while parcel number 1742, which belongs to the defendant remains unutilized. 18.In cross examination, PW4 stated as follows: -“The defendant is my younger brother who follows me. For many years I have tried to engage my brother to transfer parcel No. 373 to me but he has refused. I was born in parcel 373.Richard was also born in 373.In 2003 I moved from 373 to 401.In 2003, when I left the defendant was staying in 377 where he stays to date.Parcel 350 was to be subdivided into 2. The defendant has already subdivided 350 into 1741 and 1742. I have left 1741 to my children (the plaintiffs) who are now utilizing it.” 19.In re-examination PW4 stated as follows: -“Before land adjudication the family land was big.After adjudication the land was registered into 2 parcels, 377 and 373.The defendant continued staying in 377 and I in 373 where the plaintiffs were born.Parcel number 350 was subdivided into two portions 1741 and 1742.Parcel No.1741 belongs to me. It is being utilized by my sons (plaintiffs) and their families.” Respondent’s/Defendant’s case 20.The respondent/defendant, Richard Okumu Wandera, who testified as DW1, admitted or acknowledged that the suit properties are family land and that the applicants/ plaintiffs have been in use and occupation of the suit properties for a long period of time. In that regard, see the following excerpts of what he stated, on cross examination: -“…I live in parcel number 377. I was born in 377.The plaintiff’s live in parcel number 373. They were born in 373. There was a grass thatched house that had been erected in parcel number 373 where the plaintiffs had always lived before they built their own.They were living in this house before and after their father moved to parcel number 401.” 21.DWI further stated in cross examination: -“We have never quarreled with the plaintiffs and I have never taken them to court. I am not the one who placed them in parcel number 373 or allowed them to live there.I was in Mombasa for a long time. I came back in 1980 and built a grass thatched house and utilized parcel 373. I moved out in 1990 and I have never returned.Parcel number 350 is registered in my name. It was subdivided into 1741 and 1742. The land has a sisal boundary between the two parcels.I sold parcel number No. 1742. Parcel number 1741 is cultivated by the plaintiffs. I have never reported them to the chief or filed a case against them.The plaintiff’s father reported me to the chief to register parcel number 1741 in his name in 1990. Our relatives (our father’s younger brother) decided that parcel number 401 be given to the plaintiff’s father. Our grandmother and father are buried in parcel number 377.All the parcels 401, 373 and 377 are family land.” 22.In re-examination, the defendant, stated:“The plaintiffs were living in a grass thatched house when I came from Mombasa in 1980. The 1st plaintiff was about 5 years old. They were living with their mother. They built the semi- permanent houses in 2020. 23.At close of hearing parties filed submissions, which I have read and considered. Analysis and determination 24.From the pleadings filed in this case, the evidence and the submissions and authorities relied on, the following questions arise;i.Whether the plaintiffs/applicants can sustain a claim for adverse possession of the parcels of land known as L.R No. Samia/Bujwanga/373 and 1741, in the circumstances of this case;ii.Whether registration of the defendant as the proprietor of the parcels of land known as LR NOs. Samia/Bujwanga/373 and 1741 is subject to a trust in favour of the plaintiffs/applicants;iii.What order should the court make? 25.On whether the plaintiffs/applicants can sustain a claim for adverse possession of the parcels of land known as L.R No. Samia/Bujwanga/373 and 1741, in the circumstances of this case, the applicants have submitted/addressed the Court as follows:“…It is not in doubt that the two parcels L.R No. Samia/Bujwanga/373 and 1741, the subject matters are registered in the names of the defendant…This was admitted by the defendant and equally exhibited by the copy of the register, plaintiffs’ exhibits 1, 2 and 3.It is also settled from the pleadings and evidence on record that the plaintiffs reside/occupies the whole of land parcel L.R No. Samia/Bujwanga/373 and utilize/farm on L.R No.Samia/Bujwanga/1741. The plaintiff, PW1 and his witnesses, PW2, PW3 and PW4 corroborated this evidence…. In the instance case, the plaintiffs were born on the land…and they have been on the land since their birth to date…. If the plaintiffs were on 373 by virtue of being children of Wilson, then the defendant ought to have gotten them move in 1990. He did not get the plaintiffs out of land parcel No. 373 or stop them from using 1741.The plaintiffs to prove claim based on adverse possession have to establish the following:a.The date of possession;b.The nature of possession;c.Whether the possession is known to the registered owner;d.The possession was open, undisturbed for the requisite 12 years.The plaintiffs were born on parcel number 373 in 1975. In 1980 the defendant found them on the land and in 1990 their Father-Wilson left them on the land. Whichever date of the three; 1975, or 1980 or 1990 to 2023 when the case was filed is over 12 years. …The possession has been open and undisturbed since 1975, 1980 or 1990…In view of the foregoing, the defendant in respect of parcels number 373 and 1741 extinguished by dint of section 17 of cap 22, …the Limitation of Actions Act…” 26.Concerning this issue, the respondent has submitted/addressed the court as follows:“…The dispute before court is NOT that of adverse possession but dispute of ownership of land between two brothers and their children.The occupation of L. R No.Samia/Bujwanga/373 by the applicants was not by way of adverse possession but by way of entitlement….It is our submission that whatever cause of action the applicants might have against the respondent, their paternal uncle over the parcel of land, the same could not definitely lie by way of adverse possession…There has been disagreement in court over who is in occupation of L.R No. Samia/Bujwanga/1741, a subdivision of L.R No. Samia Bujwanga/350…It is our submission that for the purpose of this case, it does not matter who cultivates land parcel 1741. Any claim over L.R No.Samia/Bujwanga/1741 cannot be resolved by way of adverse possession. The evidence presented to the court by the applicants being that the land in issue was family land which was to be divided between the Respondent and the father of the Applicants PW4. No documentary evidence was presented to show the assignment or transfer of interest to the applicants…” 27.The respondent urges the court to dismiss the applicants’ claim to entitlements of the suit properties on account of having been in adverse possession thereof with costs to him. 28.I have read and considered the pleadings, evidence, submissions and the applicable law, as espoused in decided cases, concerning a claim for adverse possession concerning family land. In particular, I have taken into account the decision in the case of Chudasama v Chudasama; Shah (Suing in her own right and also as the Legal Representative of the Estate of Harilal Mulji Chudasama) (Interested Party) [2024] KEELC 574 (KLR)[2024] where it was held;-“For a claim of land by adverse possession to succeed, the applicant must prove that he has been in open, continuous and uninterrupted occupation of the land for a period of 12 years or more. In the case of Daniel Kimani Ruchine & Others v Swift, Rutherford Co Ltd & another 1977] eKLR Kneller J. stated as follows;“The Plaintiffs have to prove that they have used this land which they claim as of right,nec vi, nec clam, nec pricario (no force, no secrecy, no evasion) …The possession must be continuous. It must not be broken for any temporary purposes or by any endeavours to interrupt it or by any recurrent consideration.” 105.These principles were explained at length by the Court of Appeal in Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another [2015] eKLR in the following terms: -“From all these provisions, what amounts to adverse possession? First, the parcel of land must be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, lastly, he must have been in that occupation for a period in excess of twelve years having dispossessed the owner or there having been discontinuance of possession by the owner. This concept of adverse possession has been the subject of many discourses and decisions of this Court. Suffice to mention but two, Kasuve v Mwaani Investments Limited & 4 others [2004] 1KLR 184 and Wanje v saikwa (2) (supra). In the first decision, the court was emphatic that in order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of twelve years either after dispossessing the owner or by discontinuance of possession by the owner on his own volition. In the Wanje case, the Court went further and took the view that in order to acquire by statute of limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it and that what constitutes dispossession of a proprietor are acts done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use. Further, the court opined that a person who occupies another’s persons land with that person’s consent, cannot be said to be in adverse possession as in reality he has not dispossessed the owner of the land and the possession is not illegal. What these authorities are emphasizing is that for one to stake a claim on a parcel of land on the basis of adverse possession, he must show that he entered the parcel of land more or less as a trespasser as opposed to by consent of the owner. In other words, his entry must be adverse to the title of the owner of the land.” 106.Parties in the instant suit are in agreement with regards to how the suit property was acquired, the nature of the title, the developments thereon and the period for which the Plaintiffs has been in occupation. It is also acknowledged that the said occupation was for a long time without any interference. 107.The only issue that arises for determination is whether the Plaintiff has established that he has acquired the 1st Defendant’s 1/3 undivided share in the suit property by adverse possession and whether he is entitled to the reliefs sought. 108.From the facts, evidence and testimony of the parties, the suit property was initially registered in the names of the Plaintiff, the 1st Defendant and their deceased father as tenants in common in equal undivided shares. On 29th September, 2003 the deceased’s share of the suit property was transferred to the Plaintiff. The Plaintiff now owns 2/3 share of the entire suit property. 109.The remaining 1/3 share of the suit property still belongs to the 1st Defendant, which share the Plaintiff through this suit claims to have acquired by adverse possession. The court has been called upon to determine whether a co-tenant in land held under tenancy in common can acquire the share of another co-tenant through adverse possession. 110.Okong’o J in Saiqua Sultana Hassan Haroon & 2 Others v Abdul Malik [2016] eKLR had occasion to deal with the issue of adverse possession between co-tenants as follows:“It is clear from the foregoing that until the tenancy in common is severed by the subdivision of land so that each tenant in common can have his share of the land, each tenant in common owns the “whole” land. Until the subdivision is done, the portion of land that belongs to each tenant in the entire parcel which is jointly owned is unidentiable. It follows that, when the deceased occupied the suit property, he occupied the whole of it by virtue of his interest therein as a tenant in common. It cannot be said that he was occupying his share in the said property and that of the defendant. The plaintiffs are the daughters of the deceased. Between 1976 and the year 2003 when the plaintiffs are said to have been occupying the suit property with the deceased, they must have been occupying the premises with the permission of the deceased. The deceased’s and the defendant’s interest in the suit property were common and undivided. The plaintiff’s occupation of the suit property could not therefore be said to have been adverse to the interests of the defendant and the deceased.” 111.In Ruga Gituku v Charles Gachau Wachira & 10 Others [2017] eKLR, the court held as follows:“The plaintiff is a co-tenant of the defendants. In the case of Ahmed Abudulkarim & Another vs Member for Lands and Mines & another (1958) EA436 at 441 the East African Court of Appeal held that it is well settled that as between tenants in common, there must be some overt act amounting to ouster before possession of a co-tenant becomes hostile. The word “Ouster” is defined in Black’s law Dictionary 9th edition as the wrongful dispossession or exclusion of someone (esp a co-tenant) from property.” 112.In law, co-owners do not lose a commonly-held property interest merely because they do not use it. All co-owners have the right to possess the entire property and by such possession, they do not commit a trespass against other co-owners. It is only when a tenant in common actually excludes another co-tenant from the property or denies them access and/or entry into the property does the statute of limitations for adverse possession begin…. 115.The presumption that possession by a co-owner is possession by all co-owners negates the contention that the Plaintiff was living on the suit property as a licensee of the 1st Defendant. Being a co-owner, he had a right to occupation of any part or share of the suit property because the respective shares of the co-tenants are not identifiable, and the co-tenants have a right to the entire property subject of the co-tenancy… 116.From the facts of this case, the parties herein all moved into the suit property to live together. It had been purchased for use as a family home. When the 1st Defendant moved out, it was not because of any hostilities. He moved out because he purchased his own property to cater for the needs of his growing young family. He did not need to lay claim to the property seeing as it was still being used to house the entire family, including his father and other siblings, as it was meant to do. 117.There was no evidence to show that he could not return to the house after moving out. Indeed, as a family member and a co-owner of the house, he had a natural right to return to their family home. 118.It is common ground that a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in (accordance with) provisions of an agreement of sale or lease or otherwise. Further, as the High Court correctly held in Jandu vs Kirpal [1975] EA 225, possession does not become adverse before the end of the period for which permission to occupy has been granted. 119.To the extent that the Plaintiff was in occupation of the entire suit property with the permission of the 1st Defendant, until 2016 when the two fell out, it is the finding of this court that the Plaintiff has not proved the claim of adverse possession. The said claim fails…” 29.In applying the principles espoused in the above cited case to the circumstances of this case, I agree with the respondent’s submissions that the applicants’ cannot sustain their claim for adverse possession of the suit properties as their possession and use of the suit property is on account of presumed consent arising from the fact that the suit properties are family land, which they were entitled to use and occupy as of right on account of their beneficial interest therein. 30.There being no evidence adduced by the applicants capable of showing that their occupation of the suit property was adverse to the interest of the respondent and other family members entitled to the suit properties, time for purposes of adverse possession could not and did not start running in their favour. For the foregoing reason(s), I find and hold the plaintiffs’/applicants’ claim to entitlement of the suit properties based on adverse possession to be unmaintainable and dismiss it. 31.On whether registration of the defendant as the proprietor of the parcels of land known as LR NOs. Samia/Bujwanga/373 and 1741 is subject to a trust in favour of the plaintiffs/applicants, whereas, ideally a claim for adverse possession cannot co-exist alongside a claim for trust, in the instant case, beside the claim for adverse possession, the applicant urged a case based on customary trust. Concerning that claim, the applicants have submitted/addressed the Court as follows:“…Alternative to adverse possession, the plaintiffs claim trust.The plaintiffs are children of Wilson Mang’eni Okumu, who is the brother of the defendant, Richard Okumu Wandera.It is on record that Wilson Mangeni Okumu lived on parcel 377 and 373. He left the plaintiffs on L.R No.373. The plaintiffs continued to live on 373 and cultivate 1741.The defendant on cross examination stated;“All the parcels Nos. 401, 373 and 377 are family landThe defendant simply put was saying this is ancestral land to which the plaintiffs are entitled.By the principles of customary trust, the plaintiffs are entitled to parcels number 401, 373 and 377. Since the defendant occupies/uses 377, it follows the plaintiffs would be entitled to 373 and 1741 which is half of what was 401 (appears to be an error, should have read 350) as the defendant took the other half-1742 and sold.In conclusion we submit the plaintiffs have proved their case on a balance of probabilities.” 32.On costs the applicants urge the court to grant them the costs of the suit. 33.The respondent, did not address the issue of trust despite the same having been raised in the applicants’ pleadings, evidence and submissions. 34.Although, ideally a claim for adverse possession cannot be urged alongside a claim to entitlement of land based on trust, in the circumstances of this case, the evidence adduced clearly points to existence of a trust relation-ship between the plaintiffs/applicants’ and the respondent and where the respondent, for no good reason has refused to fulfil his obligation as a trustee by facilitating transfer of the suit properties to the plaintiffs/applicants who have by evidence, demonstrated that they are the actual beneficiaries of the suit properties to wit, the parcels of land known as L.R No. Samia Bujwanga 373 and Samia Bujwanga/1741, I return a positive verdict on this question. 35.The upshot of the foregoing is that the plaintiffs/applicants’ case partially succeeds in that I find their case for a declaration that the respondent holds the parcels of land known as L.R NOS. Samia/Bujwanga/373 AND L.R NO.Samia Bujwanga/1741 in trust for them to be merited and make the following orders in favour their:-i.A declaration be and is hereby issued that the defendant/respondent holds the parcels of land known as L.R Nos. Samia/Bujwanga/373 AND L.R NO.Samia Bujwanga/1741 in trust for plaintiffs/applicants;ii.An order be and is hereby issued compelling the respondent to transfer the parcels of land known as L.R NOS. Samia/Bujwanga/373 And L.r No.samia Bujwanga/1741 to them and in default the Deputy Registrar of this Court be authorized to execute all necessary documents/instruments to effect such transfer on behalf of the respondent.iii.The Land Registrar be and is hereby ordered to dispense with the legal requirement for production and/or surrender of the respondent’s original title deeds to the aforementioned parcels in the event the respondent is uncooperative.iv.I award the plaintiffs/applicants the costs of the suit to be borne by the respondent. 36.Orders accordingly. JUDGEMENT DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 7TH DAY OF JULY, 2026 THROUGH MICROSOFT TEAMS.L. N. WAITHAKAJUDGEIn the presence of: -Mr. Jumba holding brief for Mr Fwaya for the ApplicantMr Odera holding brief for Mr Juma for the RespondentCourt Assistant: Ajwang