https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4461

Okumu v Okumu (Environment and Land Case E007 of 2023 & Civil Case 90 of 2019 (Consolidated)) [2026] KEELC 4461 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELC 4461 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Case E007 of 2023 & Civil Case 90 of 2019 (Consolidated) BN Olao, J July 16, 2026 Between Martha Atieno Okumu Plaintiff and George Okoth Okumu Defendant As consolidated with Civil Case 90 of 2019 Between George Okoth Okumu Plaintiff and Martha Atieno Okumu Defendant Judgment 1.This judgment was due for delivery on 13th November 2025. However, following my transfer to Iten Court from Busia Court and which was effective 15th January 2026, this Court had to prioritize the determination of part heard cases and also deliver other rulings and judgments. That has caused the delay in delivery of this judgment. The same is regretted. 2.Busia ELC Case No E007 of2023 (os) Martha Atieno Okumu -v- George Okoth Okumu And Busia Chief Magistarates Court Civil Case No 90 Of 2019, George Okoth Okumu -v- Martha Atieno Okumuwere, with the consent of the parties, consolidated for purposes of hearing on 14th November 2024. 3.In BusiaELC Case NoE007 of 2023 (OS) Martha Atieno Okumu was the applicant. By her Originating Summons, she claimed against George Okoth Okumu that she had acquired a portion of the land parcel NO Bukhayo/Mundika/5656 through adverse possession. 4.In Busia Chief Magistarates Court Civil Case NO 90 of 2019, George Okoth Okumu filed a plaint seeking to evict Martha Atieno Okumu from the said land. 5.Following the consolidation, the Originating Summons in Busia ELC Case NoE007 of 2023 (O.S) became the plaint while the plaint in BusiaELC Case No90 of 2019 became the defence and counter-claim. 6.By an Originating Summons dated 13th March 2023 and filed on 14th March 2023, Martha Atieno Okumu (the Plaintiff), sought a determination of the following questions against George Okoth Okumu (the Defendant) with respect of a portion of land measuring 0.048 hectares out of the land parcel NO Bukhayo/Mundika/5656 (the suit land):a.Whether the Plaintiff has been in open and notorious possession of a portion measuring 0.048 hectares out of the land parcel NO Bukhayo/Mundika/5656 for a period exceeding 12 years.b.Whether the Defendant’s title to a portion measuring 0.048 hectares out of the land parcel NO Bukhayo/Mundika/5656 became extinguished upon expiry of 12 years from the time the Plaintiff went into possession of the said land.c.Whether the Plaintiff has now acquired title to the said portion measuring 0.048 hectares out of land parcel NO Bukhayo/Mundika/5656 by virtue of adverse possession.d.Whether the registration of the Defendant as owner of a portion measuring 0.048 hectares out of the land parcel NO Bukhayo/Mundika/5656 should be canceled and the Plaintiff be registered as owner of the said portion of land.e.Who should pay costs of this case? 7.Arising out of the above determinations, the Plaintiff seeks the following orders:1.That the Defendant’s rights over a portion measuring 0.048 hectares out of the land parcel NO Bukhayo/Mundika/5656 got extinguished by adverse possession upon expiry of 12 years from the date the Plaintiff came into possession.2.That the Defendant be perpetually barred from taking and or using a portion measuring 0.048 hectares out of the land parcel NO Bukhayo/Mundika/5656.3.That the Plaintiff be registered as the proprietor of a portion measuring 0.048 hectares out of the land parcel NO Bukhayo/Mundika/5656.4.That the Defendant do execute all the relevant documents to facilitate the sub-division and transfer of a portion measuring 0.048 hectares out of the land parcel NO Bukhayo/Mundika/5656 into the name of the Plaintiff and that in default the Deputy Registrar do execute the same in place of the Defendant.5.That the Defendant do pay the costs of this case. 8.In support of her claim, the Plaintiff filed a supporting affidavit dated 13th March 2023 and that of her witness Chrispine Odhiambo Keta dated 7th June 2023. 9.In her supporting affidavit, the Plaintiff has averred inter alia that the suit land is registered in the name of the Defendant. That on 23rd May 2006, she purchased from one Magdalene Okumu a portion measuring 0.048 hectares out of the suit land at an agreed consideration of Kshs.120,000. She paid Kshs.20,000 on 26th February 2010 which was the balance. The portion was demarcated, and she took possession from 23rd May 2006 to date. Her occupation has been open, peaceful, continuous and without interruption. She has two houses and has planted bananas and trees. 10.Annexed to the Originating Summons are the following documents:1.Copy of the register for the land parcel NO Bukhayo/Mundika/5656.2.Copy of the sale agreement dated 23rd May 2006.3.Copy of acknowledgment slip dated 26th February 2010. 11.The Plaintiff also filed a statement of her witness Chrispine Odhiambo Keta (PW2) dated 7th June 2023. He is the Plaintiff’s nephew and since the Plaintiff was not blessed with a child, he has been living with her like her son. 12.He confirmed that the Plaintiff purchased a portion measuring 0.048 hectares from Magdalene Okumu at a consideration of Kshs.120,000 on 23rd May 2006. That Kshs.120,000 was paid when the sale agreement was executed on 23rd May 2006 while the balance was paid later and duly acknowledged. The portion was demarcated, and the Plaintiff took possession and built two houses, a pit latrine and also grows bananas and trees. Her occupation of the said portion has been open, peaceful and continuous. 13.In response to that Originating Summons, the Defendant filed a replying affidavit dated 14th June 2023 in which he averred, inter alia, that he is the registered proprietor of the suit land. That the said land was registered in the name of his late mother, Magdalene Okumu on 16th May 1996 but was registered in his name on 10th July 2013 after the Plaintiff had removed the caution thereon. 14.That the Plaintiff forcefully moved onto the suit land without his mother’s consent and her occupation has been resisted. That there have been a series of disputes between his late mother and him on one side and the Plaintiff on the other hand. He totally denied the contents of the sale agreement purportedly made on 23rd May 2006 adding that even if it is taken on its face value, the last installment was paid on 26th October 2016 and therefore it has not matured into adverse possession. That the Plaintiff has on several occasions placed restrictions on the register disputing the Defendant’s ownership thereof. 15.He added that there have been two suits between the Plaintiffs and the Defendant and his late mother being Busia CMC N0 491 of 2013 for over 12 years. Therefore, the Plaintiff occupation of the suit land has not been peaceful, un-interrupted “with consent of the registered proprietor” (sic). I believe that must be a typographical error. 16.The Defendant filed a list of documents dated 27th June 2023 containing the following:1.Copy of register for the land parcel NO Bukhayo/Mundika/5656.2.Pleadings in Busia Magistrate's Court, case NO 491 of 2013.3.Copy of order issued on 23rd October 2014 in Busia Magistrate's Court CASE NO 491 of 2013.4.Copy of decree issued in Busia Magistrate's Court CASE NO 491 of 2013.5.Originating Summons filed in Busia ELC Case No 6 of 2019 (OS). 17.In Busia Magistrate's Court, Civil Case No. 90 of 2019, the Defendant was the Plaintiff. His case was that he is the registered proprietor of the suit land on which the Plaintiff, who was the Defendant, had forcefully entered in 2013 and put up a permanent structure. He therefore sought the eviction of the Plaintiff from the suit land and that she be evicted by the Officer Commanding Police Station (OCS) Busia. 18.The Plaintiff filed a defence in which she pleaded that on 23rd May 2006, she had purchased from Magdalene Ouma a portion of the land parcel NO Bukhayo/Mundika/3430 at consideration of Kshs.120,000 (the reference to Bukhayo Mundika/3430 must be an error). That she had paid Kshs.100,000 on the date of the sale agreement and the portion purchased was demarcated on the ground, fenced and developed with the knowledge of the Defendant. That the Defendant had filed Busia ELC NO 6 of 2019 (OS) claiming to have acquired the suit land by adverse possession and so the plaint was an abuse of the process of the Court. The Plaintiff therefore sought the dismissal of that suit with costs. 19.The case was heard and finalized on 19th March 2025. The Plaintiff testified and called her witness, Chrispine Odhiambo Keta (PW2). They both adopted as their evidence the content of their affidavit and statement. 20.The Defendant was the only witness who testified in support of his case. He too adopted as his evidence the contents of his replying affidavit. Both of them produced as their documentary evidence the documents filed herein and which I have already referred to above. 21.Submissions were thereafter filed both by Mr. Otanga instructed by the firm of Bogonko Otanga & Company Advocates for the Plaintiff and by Mr. Jumbainstructed by the firm of Balongo & Company Advocates for the Defendant. 22.I have considered the evidence by the parties and the submissions by the counsel. 23.The Plaintiff’s claim is that she has acquired a portion of the suit land measuring 0.048 hectares by way of adverse possession, having purchased it from Magdalene Ouma OKUMU the Defendant’s mother on 23rd May 2006 at a consideration of Kshs.120,000 of which she paid Kshs.100,000 on the date of signing the agreement and the balance of Kshs.20,000 on 26th February 2010. That she has been in occupation and possession of the said portion openly, peacefully and uninterrupted. The Defendant’s case is that in fact the Plaintiff forcefully entered the suit land and should be evicted therefrom. 24.Three issues call for my determination in this case. These are:1.Has the Plaintiff forcefully entered the suit land from which she should be evicted?2.Or has she acquired the said portion of land by way of adverse possession?3.Who shall meet the costs of the suit? 25.It is common knowledge that the Defendant has since 10th July 2013 been the registered proprietor of the suit land. His mother, Magdalene Okumu was the first registered proprietor on 16th May 1996. On 1st October 2013 a few months after the Defendant obtained registration of the suit land in his name, the Plaintiff registered a restriction on the title claiming that she had purchased a portion thereof on 2nd August 2006. 26.As the registered proprietor of the suit land, the Defendant’s title is protected both under the Constitution and the Land Registration Act. Article 40(1) of the Constitution provides that:“Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property -(a)of any description; and(b)in any part of Kenya.”Section 24(a) of the Land Registration Act provides that:“Subject to this Act -a.the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;”Sections 25 and 26 of the same Act also protect the rights of a registered proprietor of land. And such rights include the right to eject trespassers from the land. It is that right which the Defendant seeks against the Plaintiff in his counter-claim. 27.On the other hand, Section 28(h) of the same Act provides that:28:“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register –(h)rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription.”That is the right which the Plaintiff is seeking by her Originating Summons. 28.Section 38(1) of the Limitation of Actions Act empowers this Court to grant orders in adverse possession. It reads:“38 (1):“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.”Section 7 of the same Act provides that:7:“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.” 29.It is now well established that the combined effect of the provisions of Sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the title of the registered proprietor of land in favour of an adverse possessor at the expiry of 12 years of the adverse possession - Benjamin Kamau & Others -v- gladys njeri C.A Civil Appeal No. 213 of 1996. 30.In Kasuve -v- Mwaani Investments Ltd & Others2004 KLR 184, the Court of Appeal stated that:“And in order to be entitled to the 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 12 years either after dispossessing the owner or by the discontinuation of possession by the owner on his own volition – Wanje -v- Saikwa No2 1984 KLR 284.And as was reiterated by KnellerJ in the case of Kimani -v- Swift Rutherfords Company Ltd1980 KLR 10:“The Plaintiffs have to prove that they have used this land which they claim as of right; nec vi, nec clam, nec precario (no force, no secrecy, no persuasion)”.In Richard Wefwafwa Songoi -v- Ben Munyifwa SongoiC.A. Civil Appeal No110 of 2016, the Court stated at paragraph 36:36:“For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted user of the land. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are important factors in a claim for adverse possession.”Then in paragraph 40, the Court stated that:40:“A person who claims adverse possession must inter alia show: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 the other party.d.for how long his possession has continued ande.that the possession was open and undisturbed for the requisite 12 years.”It is also now well settled that a bona fide purchaser of value is a person who can claim the land by way of adverse possession and time starts to run from the time the purchase price is fully paid - Public Trustee -v- Wanduru 1984 KLR 314 31.Guided by the above provisions and precedents, what are the facts in this case? 32.The occupation and possession of the suit land and specifically the possession measuring 0.048 hectares by the Plaintiff is not in doubt. Indeed, that is why the Defendant seeks her eviction therefrom. The Plaintiff’s evidence is that she entered the suit land following a sale agreement dated 23rd May 2006 with one Magdalene Okumu the Defendant’s mother, who even demarcated the portion measuring 0.048 hectares which she claims. She first paid Kshs.100,000 at the execution of the sale agreement and the balance of Kshs.20,000 on 26th February 2010 being the balance of the purchase price of Kshs.120,000. She is still in occupation and possession of the same. That the same has been open, peaceful, continuous and without interruption. All her friends, relatives, neighbours regard it as her land. 33.The Defendant on his part has pleaded in his replying affidavit that there was no such sale agreement and, in any case, the last installment having been paid on 26th October 2010 (the copy of sale agreement actually reads 26th February 2010 as pleaded by the Plaintiff) then the time for a claim by adverse possession had not expired by the time this suit was filed. The Defendant also states that the Plaintiff’s occupation and possession has been interrupted. In paragraphs 11 and 12 of his replying affidavit, he states:11:“That there have been two suits between the respondent herein and the applicant and his late mother to wit Busia CMC NO 491/2013.”12:That the applicant has not occupied the LR Bukhayo/Mundika/5656 over 12 years.”The sale agreement dated 23rd May 2006 was between the Plaintiff and Magdalene Okumu. The Defendant was not a party to the same nor was he even a witness. He cannot therefore purport to deny the execution of an agreement to which he is basically a stranger. The said agreement speaks for itself and this Court is satisfied that the contents thereof are correct. So too is the acknowledgement slip which both the Plaintiff and Magdalene Okumu signed on 26th February 2010 when the balance of Kshs.20,000 was paid and received as final payment. 34.The Defendant has averred that even if the sale agreement is taken on its face value, the balance of Kshs.20,000 was paid on “26th October 2010” and the time for adverse possession has not matured. It is not clear where the Defendant got the date of 26th October 2010. The acknowledgment slip is clearly dated “26th February 2010”. This Originating Summons was filed on 14th March 2023 some thirteen (13 years) after the balance of the purchase price of Kshs.20,000 had been paid. It cannot therefore be true, as averred by the Defendant in paragraph 9 of his replying affidavit, that the Plaintiff’s claim “hasn’t matured into adverse”. It certainly has matured even if the Court were to adopt the erroneous date of 26th October 2010 as the day the final installment was paid. As is already clear from the decision in Public Trustee -v- Wanduru (supra) as per Madan JA (as he then was):“A purchaser in possession of the land purchased after having paid the purchase price, is a person in whose favor the period of limitation can run under Section 10 (1) of the English Limitation Act 1939 (closely akin to our Section 7) as against the vendor.”The register shows that the Defendant was registered as the proprietor of the suit land on 10th July 2013. By that time, the title of his late mother Magdalene Okumu had long been extinguished by effluxion of time. He was therefore only holding the title deed in trust for the Plaintiff with respect to the 0.048 hectares portion which she continues to occupy following the purchase. The change of ownership of the suit land from Magdalene Okumu to the Defendant did not interrupt the Plaintiff’s claim to her portion by adverse possession – Mwangi Githu -v- Livingstone Ndete & Others C.A. Civil Appeal No 24 of 1979 [1980 KECA 35 KLR]. 35.Finally, the Defendant has made reference in paragraph 11 of his replying affidavit that:“… there have been two suits between the respondent herein and the applicant and his late mother to wit Busia CMC NO 491/2013.”However, the only pleadings annexed is the plaint filed in Busia Chief Magistarates Court Civil Case NO 491 of 2013 in which the Plaintiff herein was also the Plaintiff and she had sued both the Defendant and Magdalene Okumu. Her complaint was that notwithstanding the sale agreement executed between the Plaintiff and Magdalene Okumu on 23rd May 2006 over a portion of land measuring 0.048 hectares out of the suit land, Magdalene Okumu had secretly and with intention to defraud transferred the whole suit land to the Defendant. It is not clear whether the suit was heard and finally determined and with what results. What is clear is that a consent order was recorded on 23rd October 2014 in which the Defendant herein was allowed to bury the remains of one Magdalene Okumu (it is not clear if this is the same Magdalene Okumu) on any part of the suit land “except the portion of land in occupation by applicant mother Okumu on Bukhayo/Mundika/5656.” It is not clear which is this other case which the Defendant was referring to. If he meant Busia Chief Magistarates Court Civil Case NO ELC 90 of 2019, that case has already been consolidated with this case. 36.Either way, if the Defendant by citing any of those cases intended to demonstrate that the Plaintiff’s adverse possession was interrupted by the filing of those cases, that argument does not aid his case for the following two reasons. Firstly, the filing of Busia Chief Magistarates Court Civil Case NO ELC 90 of 2019 came too late. By 2019, the Defendant’s title to the suit land had been extinguished some seven (7) years earlier. There was nothing to interrupt. Secondly, as regards Busia ELC Case No 491 of 2013, it was filed by the Plaintiff herein and not by the Defendant or his late mother Magdalene Okumu. The filing of a suit over the suit land can only interrupt a claim by way of adverse possession if it is filed by the registered proprietor of the land in dispute. Not by the person claiming the land. This is set out clearly in the case of Mwangi Githu-V- Livingstone Ndete(supra) where the Court held that:“Time ceases to run under Limitation of Actions Act either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land. - see Chesire’s Modern Law Of Real Property 11th Edition at page 894”.As is obvious from the pleadings in Busia Chief Magistarates Court Civil Case NO ELC 491 of 2013, it was also the Plaintiff herein who had filed the suit against the Defendant and Magdalene Okumu and not vice versa. And in the consent recorded therein on 23rd October 2014, the Defendant and Magdalene clearly recognized the Plaintiff’s overriding interest to the portion of the suit land occupied by the Plaintiff. Therefore, neither the Defendant nor his mother Magdalene Okumu filed any suit against the Plaintiff to assert their rights over the suit land before the expiration of the limitation period and which could have interrupted the Plaintiff’s occupation and possession of the 0.048 hectares which she claims and neither was their right to that portion admitted by the Plaintiff. If anything, as I have already stated above, the parties signed a consent on 23rd October 2014 by which the Defendant and his mother Magdalene Okumu clearly admitted the Plaintiff’s entitlement to the portion of the suit land which she now claims. 37.Ultimately, therefore and having considered all the evidence herein, I am satisfied that the Plaintiff is entitled to the orders which she seeks in this Originating Summons. Accordingly, I make the following dispositive orders:1.The Defendant’s right over a portion of the land parcel NO Bukhayo/Mundika/5656 measuring 0.048 hectares has been extinguished by effluxion of the law.2.The Plaintiff has acquired by way of adverse possession a portion measuring 0.048 hectares out of the land parcel NO Bukhayo/Mundika/5656.3.The Defendant shall within 30 days of the delivery of this judgment surrender to the Land Registrar Busia the original title to the land parcel NO Bukhayo/Mundika/5656 for cancellation and execute all the relevant documents to facilitate the registration of the portion measuring 0.048 hectares in the name of the Plaintiff.4.In default of (3) above, the Land Registrar shall cancel the title to the land parcel NO Bukhayo/Mundika/5656 in the name of the Defendant and the County Surveyor will demarcate the portion measuring 0.048 hectares which shall be registered in the name of the Plaintiff and the remaining portion in the name of the Defendant and the Deputy Registrar shall execute all the necessary documents on behalf of the Defendant.5.The parties shall meet their own costs of the registration of their respective parcels in their names.6.The Defendant shall meet the costs of this suit. BOAZ N. OLAOJUDGE16TH JULY 2026Judgment dated, signed and delivered by way of electronic mail on this 16th day of July 2026 with notice to the parties.Right of AppealBOAZ N. OLAOJUDGE