https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3731

Mokua & 5 others v Bichage & another (Environment and Land Case E019 of 2024) [2026] KEELC 3731 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEELC 3731 (KLR) Republic of Kenya In the Environment and Land Court at Nyamira Environment and Land Case E019 of 2024 DO Ohungo, J June 17, 2026 Between Okere Mokua 1st Plaintiff Joseph Asande Oeta 2nd Plaintiff Joseph Akunga 3rd Plaintiff Jared Mokaya 4th Plaintiff Francis Bwonda 5th Plaintiff Enock Ombachi 6th Plaintiff and Eunice Kemunto Bichage 1st Respondent Nicholas Nyangaresi Getate 2nd Respondent Judgment 1.The Plaintiffs moved the Court through Plaint dated 25th September 2024 in which they averred that the Defendants had been the registered proprietors of land parcel numbers Isoge Settlement Scheme/1336 and 1337 (the suit properties) since 19th June 2024 and that the suit properties were subdivisions of land parcel number Isoge Settlement Scheme/199. That they were in occupation of portions of land comprised in the suit properties which they had purchased from Moraa Nyagechanga who was the original registered proprietor of Isoge Settlement Scheme/199. 2.They averred that they had been in occupation of their portions since purchase, that the portions were well demarcated and that they had developed permanent mansions on the portions. They further averred that during succession proceedings in respect of the estate of Moraa Nyagechanga Okongo, the Defendants fraudulently and deliberately failed to notify the succession court that there were purchasers on parcel number Isoge Settlement Scheme/199 and that the title in the name of Macarios Bichage Osoya had been cancelled. 3.Consequently, the Plaintiff prayed for judgment against the Defendants jointly and severally for:a.A declaration that the Plaintiffs having been in continuous and uninterrupted occupation of their portions of the suit land Isoge Settlement Scheme/1336 & 1337 since 1991 have acquired titles to the portions so occupied.b.An injunction restraining them from any way dealing with the suit land i.e. transferring, charging or leasing the same until the suit is heard and decided.c.Costs of this suit.d.Any other or further relief as the court may deem fit to grant. 4.The Defendants filed Statement of Defence dated 20th March 2025 through which they denied the Plaintiffs’ claims of purchase and averred that Moraa Nyagechanga was not the registered proprietor of Isoge Settlement Scheme/199. They generally denied the Plaintiffs’ averments and prayed that the Plaintiffs’ suit be dismissed with costs. 5.At the hearing Okere Mokua, the First Plaintiff, testified as PW1. He stated that he was residing at Isoge Settlement Scheme as of the date of his testimony and that the Plaintiffs were his neighbours. That he had never met the Defendants who owned the land where they were living. He added that they purchased the land from Moraa Nyagechanga at a time when it was known as Isoge Settlement Scheme/57 and that he had lived on the land since 1991 together with the Second Plaintiff while the Third Plaintiff joined them in 1992. That Moraa Nyagechanga did not transfer the land to them because title was issued in the names of the Defendants and that she passed away without transferring the titles. 6.PW1 went on to testify that after the death of Moraa Nyagechanga, they filed Kisii CMCC No. 420 of 2002 against her family seeking cancellation of Macarios Bichage Osoya’s title and that he did not follow up the case to conclusion due to lack of funds. He further stated that Isoge Settlement Scheme/57 became Isoge Settlement Scheme/199 and he was aware that Moraa’s title to Isoge Settlement Scheme/199 was cancelled by court. That parcel Isoge Settlement Scheme/199 was transferred from Moraa to Bichage then later to the Defendants herein. 7.PW1 further testified that he was aware that succession proceedings were conducted in respect of the estate of Macarios Bichage in Kisii CM Succ No. 540 of 2016. He also stated that each of the Plaintiffs herein was occupying between half an acre and one acre and that collectively, they were claiming not more than two acres. 8.Enock Ombachi Bwana, the Sixth Plaintiff, testified as PW2. He stated that he purchased portion of land measuring 50ft by 100ft from Moraa Nyagechanga in 1972 and had been on occupation since then. 9.Juma Denis Toby, Court Administrator, Nyamira Law Courts, testified as PW3 and produced the Court file in Nyamira ELC No. E005 of 2023 Francis Okero & Others v Eunice Kemunto Bichange & Another. He stated that Judgment was delivered in the matter on 29th November 2023 and that the court ordered that the title for Isoge Settlement Scheme/199 be cancelled and the land be subdivided to create title deeds for the Plaintiffs in the case. 10.The Plaintiffs’ case was then closed. 11.Eunice Kemunto Bichange, the First Defendant, testified as the sole Defence witness. She adopted her witness statement dated 20th March 2025 and produced copies of the documents listed as item 1 to 12 in the Defendants’ list of documents dated 20th March 2025 as well as the document in their further list of documents dated 28th May 2025 as their exhibits. 12.She stated that she did not know the Plaintiffs and that Isoge Settlement Scheme/199 was initially owned by Moraa Nyagechanga and that she did not know whether Moraa sold portions of the land to the Plaintiffs. She stated that she had not been to the suit property out of fear for her life because her husband was killed there. That she didn’t know what portions the Plaintiffs occupied, how long they had been there or even what developments they had done there and that when they went to retrieve her husband’s body from the suit properties, she saw that there were some buildings there. 13.The Defence case was then closed, after which directions were given for filing and exchange of written submissions. The plaintiffs filed submissions dated 25th February 2026. 14.It was submitted on behalf of the Plaintiffs that they came to court seeking a declaration that the portions of land which they have occupied uninterrupted since 1991 and which portions they each bought from the then registered proprietor, Moraa Nyagechanga, had by effluxion of time become their legal properties and this court following the example set in Nyamira ELC No. 5 of 2023 should order that they had each acquired title to the respective portions they occupy and that the Land Registrar and Surveyor should proceed to issue titles to them according to the respective sizes of the portions. 15.It was also submitted that the First Defendant admitted in her testimony that the Defendants have never been in possession and did not even know for how long the Plaintiff had been in occupation. That when the Defendants became the registered proprietors of Isoge Settlement Scheme/199 on 29th August 2022, the Plaintiffs had been in continuous and uninterrupted occupation of their portions for over 30 years as a result of legal purchase agreements entered into between them and then registered proprietor of the parcel. 16.The Plaintiffs further argued that they took occupation with the consent of the seller and that they had since erected homes on the portions. That they had qualified to be recognized as legal owners of the portions through prescription and that their case was in pari materia with Nyamira ELC No. 5 of 2023 which should be a sure guide to the Court. In conclusion, they contended that they had established their case which should be allowed as prayed. 17.The Defendants filed submissions dated 16th April 2026 and submitted that the Plaintiffs sought adverse possession through a Plaint contrary to the mandatory provisions of Section 38 (1) of the Limitation of Actions Act and Order 37 Rule 7 (1) and (2) of the Civil Procedure Rules which stipulate that claims of adverse possession be initiated through Originating Summons supported by an affidavit. Relying on the case of Kosgei vs Mugun (Civil Appeal E121 OF 2021) (2025) KECA 1507(KLR) (19 September 2025) Judgement), the Defendants submitted that the suit was defective for being commenced through a Plaint. 18.The Defendants further submitted that based on their evidence, the Plaintiffs took possession from 1994 at which point time started to run in their favour and that when proprietorship of Isoge Settlement Scheme/199 changed on 9th May 2003 from Moraa Nyagechanga to Macarious Bichage Osoya, the statutory period of 12 years had not crystallized. They also relied on the case of Nugikuyu & 4 others v Mbindyo (Sued as the Personal Representative of William Mutinda Kaliali (Deceased)) (Environmental and Land Originating Summons 2 of2022) {2025] KEELC 854 (KLR) (27 February 2025) (Judgment) and submitted that having challenged validity of the Defendants’ title on allegations of fraud, the Plaintiffs could not claim adverse possession in respect of the same disputed title. 19.Lastly, regarding the Plaintiffs’ submission that the judgment in ELC No. 5 of 2023 should be a guide, the Defendants submitted that each case should be handled separately and decided on its own merit. They concluded by urging the Court to dismiss the case with costs. 20.I have carefully considered the pleadings, the evidence and the submissions. The issues that arise for determination are whether the Plaintiffs’ claim for adverse possession through Plaint is defective, whether adverse possession has been established and whether the reliefs sought should issue. 21.Despite its drafting which would have benefited from better clarity, there is no dispute that the Plaintiffs’ claim is one for an order that they have acquired title to land parcel numbers Isoge Settlement Scheme/1336 and 1337 (the suit properties) by adverse possession. It is also not in dispute that they commenced their claim through Plaint dated 25th September 2024. 22.The procedure for institution of claims for adverse possession is found in Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. Section 38 of the Limitation of Actions Act provides in part as follows:38.Registration of title to land or easement acquired under Act.(1)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 proprietor of the land.(2)An order made under subsection (1) shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.…. 23.Order 37 Rule 7 of the Civil Procedure Rules provides:7.(1)An application under section 38 of the Limitation of Actions Act shall be made by originating summons.(2)The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.(3)The court shall direct on whom and in what manner the summons shall be served. [Emphasis added] 24.Thus, a claim based on adverse possession is to be commenced through originating summonssupported by an affidavit. Despite the mandatory nature of the provisions at Order 37 Rule 7, the Courts have severally held that such claims may be commenced by Plaint or even counterclaim. See Gulam Miriam Noordin v Julius Charo Karisa [2015] eKLR and Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR. The answer to the first issue for determination is that the Plaintiffs’ claim for adverse possession through Plaint is not defective. 25.Have the Plaintiffs established adverse possession? The ingredients of establishing adverse possession are found at Sections 7, 13, 17 and 38 of the Limitations of Actions Act. The Court of Appeal discussed those prerequisites in the case of Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR where it held that a party claiming adverse possession must assert hostile title in denial of the title of the registered proprietor. The process must start with a wrongful dispossession of the rightful owner and the proper way of assessing proof of adverse possession is whether the title holder has been dispossessed or has discontinued his possession for the statutory period of 12 years, as opposed to whether the claimant has proved that he or she has been in possession for 12 years. Further, the party claiming adverse possession must demonstrate the date he came into possession, the nature of his possession, whether the fact of his possession was known to the registered proprietor and that the possession was open and undisturbed for the requisite 12 years. 26.Those ingredients were discussed again by the Court of Appeal in Munyanya v Keya [2024] KECA 1831 (KLR), with a specific focus on the nature of possession. The Court held that the possession must be:a.Adverse to the interests of the owner – meaning that the claimant is in possession as owner in contradistinction to holding in recognition of or subordination to the true owner or to a recognized superior claim of another;b.Actual - as opposed to constructive possession where the test is the degree of the actual use and enjoyment of the parcel of land involved by the claimant or his agent, tenant or licensee;c.Open and notorious - meaning that the possession must be open and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner’s rights are being invaded. Differently put, the possession must be manifest to the community;d.Without force - meaning that the possession and occupation must have been achieved peaceably not through actual or threatened violence;e.Exclusive - meaning that the possession must be of such exclusive character that it will operate as an ouster of the owner of the legal title. Differently put, the claimant must demonstrate that she wholly excluded the owner from possession for the required period;f.Continuous and uninterrupted for the period of twelve years - meaning that the title owner did not re-enter the property under circumstances showing her intention to assert dominion against the adverse user for at least twelve years. (See Joseph Ndafu Njurukani & 2 Others vs. Emily Naliaka Barasa, Kisumu Civil Appeal No. 149 of 2022). 27.The Plaintiffs’ case is that they took possession in 1991 pursuant to sale agreements entered into between them and then registered proprietor of parcel number Isoge Settlement Scheme/199. As stated above, adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. For a claim of adverse possession to succeed, the claimant must demonstrate that his occupation was without the proprietor’s permission. 28.A person who enters another’s land and occupies it pursuant to a sale agreement cannot deny that he had the proprietor’s permission to remain on the land. Time for purposes of adverse possession cannot run in favour of such a person for as long as his presence on the land is by permission of the proprietor. The Plaintiffs specifically submitted that they took occupation with the consent of the seller. 29.For purposes of adverse possession, once a purchaser completes paying the purchase price, his possession and occupation of the purchased property is no longer by permission of the seller. In such a scenario, time for purposes of adverse possession starts to run in favour of the purchaser from the moment of final payment of the purchase price. See Public Trustee v Wanduru Ndegwa [1984] eKLR. 30.The Plaintiffs produced a copy of a sale agreement dated 19th March 1995 as proof of purchase. A reading of the said agreement reveals that the purchase price was KShs 36,000 which was to be paid in instalments. The agreement further states that as of 1st June 1995, there was a balance of KShs 7,150. The Plaintiffs did not offer any evidence as to payment of the said balance. It is also important to note that the said agreement was in respect of the Second Plaintiff only. No evidence was offered as to the terms of agreements in respect of the other Plaintiffs and whether the respective purchase prices were paid in full. 31.To the extent that the Plaintiffs did not prove full payment of the purchase price, they also did not demonstrate if and when time for purposes of adverse possession started to run in their favour. As long as they remain on the suit property as purchasers without proof of full payment of purchase price, they are excluded from claiming title by adverse possession. 32.The Plaintiffs urged the Court to be guided by the judgment delivered on 29th November 2023 in Nyamira ELC No. E005 of 2023 Okero & 2 others v Bichange & another. In that judgment, the Court (differently constituted) held as follows:The evidence of the Plaintiffs having not been controverted, I have no choice but to proceed to order that the Title Deed in respect Isoge Settlement Scheme/199 in the joint names of the Defendants, Eunice Kemunto Bichange and Nicholas Nyangaresi Getate be cancelled, the land be sub-divided forthwith in order to create Title Deeds for the Plaintiff s, Francis Ongwenyi Okero, Godfrey Sibota Okibo and Ronald Osano Omari … . 33.It will be noted that the Defendants in Nyamira ELC No. E005 of 2023 did not challenge the evidence tendered by the Plaintiffs in the said case. The situation is totally different in this case. The Defendants have filed Statement of Defence and the First Defendant testified in opposition to the Plaintiffs’ claim. Besides the fact that the Court is not bound by the judgment in Nyamira ELC No. E005 of 2023, the circumstances herein are diametrically opposed to those in the said case. 34.Another requirement of adverse possession is that the claimants must prove that they have used the land which they claim as of right. Nec vi, nec clam, nec precario (No force, no secrecy, no persuasion). See Loise Nduta Itotia v Aziza Said Hamisi [2020] eKLR. There is no dispute that Macarios Bichage Osoya who was the First Defendant’s husband was the registered proprietor of Isoge Settlement Scheme/199 before the Defendants herein became proprietors. The First Defendant stated in her witness statement which she adopted as her testimony that she severally tried to take possession but was met with hostility. She further testified that she had not been to the suit properties for fear of her life because her husband was killed there and that his body was retrieved from there. The Defendants did not offer any evidence to counter the First Defendant’s claims of hostility which they had been made aware of through the witness statement. 35.Holding onto possession through hostility and in circumstances where the registered proprietor is killed on the land does not provide a sound foundation for a claim for adverse possession. Given the above circumstances, I find and hold that the Plaintiffs have not established adverse possession. 36.In view of the foregoing discourse, I find no merit in the Plaintiffs’ case. I dismiss it with costs to the Defendants. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 17TH DAY OF JUNE 2026.D. O. OHUNGOJUDGEDelivered in the presence of:No appearance by the PlaintiffsNo appearance by the DefendantsCourt Assistant: B Kerubo