https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4311

Oteba v Orodi (Enviromental and Land Originating Summons E011 of 2022) [2026] KEELC 4311 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEELC 4311 (KLR) Republic of Kenya In the Environment and Land Court at Busia Enviromental and Land Originating Summons E011 of 2022 L Waithaka, J June 3, 2026 Between Michael Emolem Oteba Applicant and Fredrick Juma Orodi Respondent Judgment 1.The applicant herein took up the Originating Summons dated 4th April 2022 for determination of the following questions: -i.Whether he (applicant) had been in open, quiet and notorious possession of two acres purchased portion of land comprised in parcel number Bukhayo/Bugengi/10429 (suit land);ii.Whether the respondent’s title to the suit land became extinguished upon expiry of 12 years from the time he (applicant) went into possession of the land;iii.Whether he (the applicant) has now acquired title to the suit land by right of adverse possession;iv.Whether the registration of the respondent as the owner of the whole of Bukhayo/Bugengi/10429 should be cancelled and the said title deed be subdivided and the two acres of land as purchased by him on 4/12/1995 be transferred to him (applicant). 2.The applicant seeks the following orders/reliefs against the respondent: -a.That the respondent’s right over the whole of the suit land therein got extinguished by adverse possession upon expiry of 12 years from the time the applicant purchased land in the year 1995 and came into possession of the suit land in the year 1996;b.That 0.8 ha (two acres) of land out of Bukhayo/Bugengi/10429 be hived and ordered to be transferred to him (applicant);c.That the respondent be ordered to execute all the relevant statutory transfer forms/documents required by him (applicant) to facilitate the transfer of the two acres of land as purchased by the applicant out of Bukhayo/Bugengi/10429 the suit parcel herein to the applicant and in default the Deputy Registrar of this Court to execute the same in place of the respondent;d.That the respondent be permanently barred and injuncted from taking, encroaching, interfering with the applicant’s use and quiet possession of the applicant’s piece of land comprised in land parcel number Bukhayo/Bugengi/10429;e.Costs of the suit be borne by the respondent;f.Any other further relief that the court may deem fit and just to grant. 3.The application is supported by the affidavit of the applicant in which the applicant has deponed that on 4th December 1995 he entered into a sale agreement with the respondent for sale of a piece of land measuring approximately two acres (0.8 hectares) comprised in the suit land; that upon purchase of a portion of the suit land, he immediately took possession of it and build a residential home therein; that the respondent began the process of transferring the portion of the suit land to him by executing the relevant transfer documents but never saw the process through; that the suit land was subdivided into Bukhayo/Bugengi/15920 and Bukhayo/Bugengi/15921 and that Bukhayo/Bugengi/15921 is the one that was supposed to be transferred to him. Lamenting that the respondent had for no apparent reason refused to facilitate transfer of the portion he bought, the applicant filed the instant suit seeking the reliefs listed herein above. 4.The applicant has annexed the following documents to the affidavit he swore in support of his suit/application; sale agreement; copy of official search in respect of the suit land; photographs of his residential home and copies of mutation forms. 5.In response and opposition to the suit/application, the respondent filed a replying affidavit in which he denies having entered into any written agreement with the applicant over the suit land. Claiming that he entered into an oral agreement for sale of ½ acre of land comprised in the suit land, the respondent contends that the applicant paid him Kshs. 36,000/- leaving a balance of 55,000/- unpaid. 6.Terming the sale agreement relied on by the applicant a forgery, the respondent urges the court to dismiss the applicant’s suit with costs to him. 7.When the suit came up for hearing, the plaintiff/applicant rehashed his pleaded case and produced the following documents as exhibits in his case: Certificate of official search in respect of the suit land, Bukhayo/Bugengi/10424 as Pexbt 1, his ID card as Pexbt 2; Sale Agreement as Pexbt 3; Mutation form for the suit land, Bukhayo/Bugengi/10424 as Pexbt 4; Letter dated 27th August 2019 (demand notice as Pexbt 5) and Notice of intention to remove caution as Pexbt 6. 8.The plaintiff/applicant informed the court that he is in occupation of the portion of the suit land he claims and that he had been using it from 1995 when he purchased it. Asserting that the respondent had refused to transfer the land to him, the applicant urged the court to order the respondent to execute transfer forms in his favour. 9.In cross examination, the applicant stated that he paid the respondent Kshs. 36,000/-. Concerning the respondent’s allegations that he told the court that the sale agreement was eaten by ants, he stated that he has always had the sale agreement which he had produced in court and that they drew the sale agreement after they attended Land Control Board in Nambale. 10.The applicant further informed the court that he had one witness while the respondent had two witness and that his witness, Samson Onjore, had since died. 11.Concerning the respondent’s claim that the sale agreement is a forgery, he denied that claim and stated that all the signatures are for the witnesses. 12.The applicant further stated/admitted that some of the witness were not present when they signed the agreement but stated that they signed it later because they knew the history of the land. 13.Concerning the mutation forms shown to him (Pexbt 4) and the mutation forms in his list of documents dated 31st January 2023 for parcel numbers Bukhayo/Bugengi/3194 and 4998, the applicant stated that the Surveyor visited the land and carried out land survey on parcel number 3194 in 1996. 14.On why he brought the instant case in 2022, the applicant stated that the respondent kept promising to transfer the land to him but without fulfilling the promise; that they had been to the Chief, the District Officer and later to this court when the respondent refused to transfer the land to him. 15.In re-examination, the applicant stated that he reported the matter to the sub-chief because the respondent refused to transfer the land to him who gave him a letter to assist him in the case. 16.The plaintiff also availed two other witness, Henry Oramisi Idukai (PW2) and William Ojwang Ogingo (PW3) both of whom confirmed that he had been in use and occupation of the suit land since 1990s. PW3 informed the court that he built a house for the plaintiff/applicant in the suit land in 1996. 17.The respondent who testified as DW1, relied on his replying affidavits dated 5th May 2022 and 29th July 2024 after they were adopted as his evidence in chief. He also produced the following documents in support of his case; Judgment; Dexbt 1; Certificate of official search; Dexbt 2; Title deed; Dexbt 3; Copy of his father’s ID card as Dexbt 4; Applicant’s statement dated 7th April 2019 as Dexbt 5; Letter dated 3rd May 2019 as Dexbt 6; His ID as Dexbt 7; Charge sheet as Dexbt 8; mutation form for parcel number 3194 as Dexbt 9 and mutation form for parcel number 4698 as Dexbt 10. 18.In cross examination, the respondent acknowledged / admitted that the applicant bought a portion of the suit land from him; that he took possession in 1995 and that he had been living there since that time. The respondent further acknowledged/admitted that the applicant had been cultivating and putting up developments in the suit land. 19.At close of hearing, parties filed submissions which I have read and considered. 20.In his submissions dated 24th April 2026, the applicant submits/addresses the Court as follows: -“Michael Emolem Oteba, herein (known as the Applicant) has brought his claim for your consideration of his rights over a definite portion of land parcel No. Bukhayo/Bugengi/10429, which right he has acquired by operation of law on adverse possession.It is not in dispute that he has met all the requisite conditions precedent to such acquisition, thus his rights have crystallized and should be declared so. ……what the claimant had to establish and which he successfully demonstrated by evidence are that; he has been in quiet and exclusive possession of a portion of land known as Bukhayo/Bugengi/10429 for a period exceeding 12years and that such occupation is notorious and continuous to date.Whereas 12 years’ period was necessary, in his case he has demonstrated to have been there for close to 40 years and has extensive development to the portion. What he has not gotten is a title deed for the said portion, upon extinguishing of the registered owners rights over it. This fact has not been disputed and he has discharged his burden under section 107 and 109 of the Evidence Act in proof of existence of such fact. His occupation was not only confirmed by himself, but by PW2 and PW3.The Respondent and his witness did affirm this fact on cross examination that he uses and occupies same for the last 40 years. It is therefore not in dispute that the prerequisite conditions set out under sections 7, 13, and 38 of Limitations of Actions Act as to actual possession, open and notoriety of such occupation and as coupled with continuous period exceeding at least 12 years was demonstrated. Such possession is hostile to the title of the Respondent who lost such rights of occupation and use upon it being extinguished. Initially, it was through consent but same expired on the lapse of 6 years in which the agreement was to be effected rendering the contract void in the eyes of the law and therefore hostile.Mutation and change of title of the actual portion occupied and used to the exclusive rights of the registered owner did not and does not defeat and or nullify the basic element of notoriety of occupation and use by the applicant. It only confirms and asserts the claim and we submit you find so.The sale agreement of 4.12.1995 only confirms the initial entry by the applicant on the portion occupied and notoriously used by him since 4.12.1995, but the agreement was not legalized subsequently and time started to run upon the same becoming voidable and void in terms of the law of contract.There is no evidence that the registered owner/Respondent did anything to attempt to eject the applicant from the said land and succeeded in so doing. There is no counter-claim and or suit filed within the prescribed time and as such his rights become extinguished. This element of occupation by hostility to the title has been established and proved.Time, as it were, started to run against the registered owner's title upon expiry of the statutory period in which he had right to claim over the property and therefore such occupation and use became hostile.Mere possession of a title deed without doing much to evict and or seek an order to assert rights, over the title meant and mean nothing in terms of proof of essential element on adverse possession. The Respondent if anything slept on his rights and cannot purport to have any over the portion possessed and legally owned by the applicant, to which he now seeks court declaration.We urge you find the claim as having been proved to the standard of a balance of probability and be allowed in entirety.” 21.In his submissions dated 29th March, 2026 the respondent submits that the applicant has not proved actual, exclusive or continuous possession; that he did not produce credible evidence showing when he entered the land; that he has been in exclusive occupation and that he excluded him or that he (respondent) never asserted his rights; that the applicant’s own documents show subdivision and mutation processes which are acts of ownership by the respondent; that the actions by the respondent of subdivision of the suit land, interrupted time and that the applicant’s occupation, if any, was with permission, pursuant to a sale agreement, hence cannot be said to have been hostile. 22.The respondent further submits that possession of land pursuant to a sale agreement becomes adverse after the contract is repudiated; that the applicant has not shown that the agreement was repudiated; that without proof of repudiation of the contract, time did not begin to run in favour of the applicant. Further that he asserted title by subdivision of the original parcel, retention of title and engaging in transfer processes, which actions interrupted time; that he never lost control of the land and that the applicant’s evidence is unreliable and contradictory. 23.The respondent further submits that the applicant’s witnesses were neighbours as opposed to witnesses to the sale agreement thereby undermining the credibility of his narrative, that the documents relied on by the applicant contain inconsistencies regarding parcel numbers, acreage, dates, nature of occupation and that adverse possession cannot be granted on doubtful or contradictory evidence. 24.Terming the prayers sought drastic, the respondent submits that they cannot be issued in favour of the applicant because he has not meet the legal threshold for cancellation of title. 25.The respondent prays that the originating summons dated 4th April 2022, be dismissed in its entirety, that he be awarded costs of the suit and any other relief the court deems fit. 26.From the pleadings filed in this case, the evidence and the submissions, I find the sole issue for the court’s determination to be whether the applicant has made up a case for being granted the orders sought or any of them, otherwise put, whether the applicant has proved his pleaded case on a balance of probabilities to warrant being granted the orders sought. 27.Concerning that issue, it is not in dispute that the applicant and the respondent entered into an agreement for sale of a portion of the suit land. Parties are in agreement, at least going by their pleadings, that the applicant bought 2 acres of land comprised in Bukhayo/Bugengi/10429. The only point of departure is the agreed purchase price for the two acres. Was it Kshs. 36,000/- as claimed by the applicant, which amount is acknowledged by the respondent as having been paid or was it Kshs. 91,000/- as claimed by the respondent. Regarding the price of the portion bought, the plaintiff/applicant produced a sale agreement which shows that the agreed purchase for the two acres was Kshs.36, 000/-. Whilst the respondent claimed that the sale agreement relied on by the plaintiff was a forged document, he did not lead any evidence capable of proving that the document was indeed a forgery, either to the required standard, higher than on a balance of probabilities but lower than beyond reasonable doubt standard. Whilst the respondent, claims in his pleadings that the agreed purchase price for the two acres sold/bought was Kshs.91,000/- he never led any evidence capable of proving that fact. In that regard, there is no evidence whatsoever that he ever approached the applicant for payment of the alleged balance of the purchase price. The evidence adduced in this case shows that in subdividing the suit land, he took into account the applicant’s interest in the suit land but for undisclosed reasons, failed to transfer the applicant’s portion to him. 28.There being no evidence capable of showing that the applicant did not complete payment of the purchase price, this court has no reason for doubting the applicant’s evidence to the effect that he paid the purchase price and took possession of the suit land. 29.Contrary to the respondent’s claim that the applicant needed to repudiate the contract in order for time to start running in his favour, the correct legal position is that time began running in favour of the applicant after he finished paying the purchase price and took possession of the suit land. In that regard, see the Public Trustee Vs. Wanduru (1984) KLR 314 where the Court of Appeal held: -“…. adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession of the land because from this date, the true owner is dispossessed off possession. A purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run”. 30.In Mtana Lewa v Kahindi Ngala Mwagandi [2005] eKLR, the Court of Appeal (Makhandia JA) described adverse possession as follows:“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title neglects to take action against such person in assertion of his title for a certain period. In Kenya, the period 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 license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the owner.” 31.In Mwangi & Another -v- Mwangi, (1986) KLR 328, the Court held that the rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights. 32.The evidence adduced in this case shows that the applicant took possession of the suit land in 1996. Whereas the respondent claims that his actions of subdivision of the land and transfer of the portions emanating therefrom amount to interruption of time and assertion of his right to the portion of the suit land, those are not the kind of actions that, in law amount to interruption of time. Interruption of time would be by way of a suit seeking removal of the applicant from the suit land or effective re-entry into the land. No such action has been proven to have been taken by the respondent concerning the portion of the suit land in question. There is no evidence whatsoever that the applicant ever relinquished possession of the suit land since 1996, when he took possession of it. 33.Concerning what amounts to assertion of ownership right, see the case of Joseph Gathumu Kiritu v Lawrence Munyambu Kabura Civil Appeal No 20 of 1993, where the Court of Appeal (Kwach JA) as he then was, stated/held:-“The passage from Chesire’s Modern Law of Real Land to which Porter JA made reference in Githu v Ndeete is important and deserves to be read in full ... time which has begun running under the Act is stopped 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 make an effective entry into the land...” 34.Having carefully analyzed the pleadings, evidence and submissions filed in this case, I find and hold that the applicant has proved his pleaded case on a balance of probabilities and consequently, enter judgment in his favour in the following terms: -i.That the applicant be and is hereby declared the owner of a portion of land measuring 0.8 hectares (two acres) comprised in the parcel of land known as Bukhayo/Bugengi/10429 currently registered in the name of the respondent;ii.That an order be and is hereby made that a portion of land measuring 0.8 hectares (two acres) comprised in the parcel of land known as Bukhayo/Bugengi/10429 currently registered in the name of the respondent, be hived off and transferred to the applicant;iii.That the respondent be and is hereby ordered to execute all the relevant statutory transfer forms/documents required to facilitate the transfer of the portion of land measuring two acres comprised in Bukhayo/Bugengi/10429 currently registered in the name of the respondent and in default, the deputy registrar of this court to execute the same in place of the respondent;iv.The respondent be and is hereby permanently barred and injuncted from taking possession, encroaching, interfering with the applicant’s use and quiet possession of the portion of land measuring 0.8 hectares (2.0 acres) comprised in land parcel number Bukhayo/Bugengi/10429 currently registered in his name;v.Costs of the suit be borne by the respondent.vi.Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT BUSIA THIS 3RD DAY OF JUNE, 2026L. N. WAITHAKAJUDGEIn the presence of;-Mr. Michael Emolem the ApplicantMr. Fredrick Juma Orodi the RespondentCourt Asst.: Tracy