https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4981

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT SIAYA** **ELC CASE No. 20 OF 2021 (OS)** **FORMERLY KISUMU ELC No. 56 OF 2017 (OS)** **IN THE MATTER OF: THE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA** **AND** **IN THE MATTER OF: THE LAND REGISTRATION ACT, 2012** **AND** **IN THE MATTER OF: LAND TILE No. SOUTH UGENYA/RANGALA/116** **BETWEEN** **COLLINS OTIENO NJERO** (*Suing on his* *own Behalf, and also suing in his Capacity as* *the Personal Representative of the Estate of* *the late* **AGNES OCHOL OGOLA** - *Deceased*) ……... **PLAINTIFF/APPLICANT** **VS** **ANANIA OMONDI NJERO OTUNDO** ……. **1ST DEFENDANT/RESPONDENT** **WILLIAM EROBA OCHAMI** ………………... **2ND DEFENDANT/RESPONDENT** **FELISTUS BITUTE EROBA** ……………………. **3RD DEFENDANT/RESPONDENT** **JUDGEMENT** 1. This suit was commenced by way of Originating Summons dated 25th January, 2017 and filed on 1st February, 2017 as Kisumu ELC Case No. 56 of 2017 (OS). On 27th July, 2021 it was transferred to this Court and registered as Siaya ELC Case No. 20 of 2021 (OS). 2. The Plaintiff’s case is contained in the Further Amended Originating Summons dated 8th August, 2023 where he seeks a determination of the following matters: - 3. Whether the Applicant has lived and has been in actual possession of an area of land measuring approximately 2 (two) Acres comprised in Title No. SOUTH UGENYA/ RANGALA/116 for a period exceeding 12 years, and continues to occupy the same to date. 4. Whether the Applicant and the late Agnes Ochol Ogola (Deceased) have jointly been in actual possession, occupation and use of the subject portion (measuring approximately 2 Acres) of Land Title No. SOUTH UGENYA/RANGALA/116 for a period of time exceeding 12 years. 5. Whether the Applicant and the late Agnes Ochol Ogola (Deceased) have been in open and notorious possession, occupation and use of the subject portion (measuring approximately 2 Acres) of Land Title No. SOUTH UGENYA/RANGALA/116 for a period of time exceeding 12 years. 6. Whether the Applicant and the late Agnes Ochol Ogola (Deceased) have been in continuous possession, occupation and use of the subject portion (measuring approximately 2 Acres) of Land Title No. SOUTH UGENYA/RANGALA/116 for a period of time exceeding 12 years. 7. Whether the Applicant and the late Agnes Ochol Ogola (Deceased) have been in exclusive possession, occupation and use of the subject portion (measuring approximately 2 Acres) of Land Title No. SOUTH UGENYA/RANGALA/116 for a period of time exceeding 12 years. 8. Whether the Applicant and the late Agnes Ochol Ogola’s (Deceased’s) joint exclusive, peaceful, actual, continuous and interrupted possession, occupation and use of the subject portion (measuring approximately 2 Acres) of Land Title No. SOUTH UGENYA/ RANGALA/116 in the circumstances was adverse to the Respondents. 9. Whether the Applicant should be declared the absolute legal owner over the portion of the above stated parcel measuring approximately 2 Acres which he has occupied openly and uninterrupted for a period of over 12 years by adverse possession. 10. Whether a Declaration should be made to the effect that the Applicant and the estate of the late Agnes Ochol Ogola (Deceased) have jointly acquired ownership of the subject portion (*measuring approximately 2 Acres*) of Land Title No. SOUTH UGENYA/RANGALA/ 116. 11. Whether the Applicant who has been in adverse possession of 2 Acres comprised in Title No. SOUTH UGENYA/RANGALA/116 should be registered as the sole absolute proprietor over the said portion in place of the 2nd and 3rd Respondents, in whose name the land is currently registered. 12. Whether the title of the registered owners over the 2 Acres has been extinguished under the provisions of Section 37 of the Limitation of Actions Act (Cap. 22). 13. Whether the Respondent’s joint and several rights to and interests in the subject portion (measuring approximately 2 Acres) of Land Title No. SOUTH UGENYA/RANGALA/116 were extinguished by operation of the terms of Section 7 and Section 17 of the Limitation of Actions Act (Cap. 22). 14. Whether the Applicant and the estate of Agnes Ochol Ogola (Deceased) have become entitled, by adverse possession, to the occupation and use of the subject portion (measuring approximately 2 Acres) of Land Title No. SOUTH UGENYA/RANGALA/116. 15. Whether an Order should be made to the effect that Land Title No. SOUTH UGENYA/ RANGALA/116 be partitioned, so as to facilitate the transfer and registration of the subject portion in the name of the Applicant. 16. Whether the 2nd and 3rd Respondents should be ordered to execute all necessary documents to facilitate the transfer and registration of a portion of land measuring 2 Acres from Title No. SOUTH UGENYA/RANGALA/116 in the Applicant’s names, failing which an authorised officer of the Court do execute the documents in place of the Respondents. 17. Whether the costs of this Further Amended Originating Summons should be awarded to the Applicants. 18. The Originating Summons is supported by a very lengthy Affidavit sworn by the Plaintiff/Applicant on 08/08/2023 whose contents are summarised as follows; 19. That the Plaintiff herein is the son of the late Walter Njero Odhiambo and the late Agnes Ochol Ogola, over who’s estate he was duly appointed as personal representative. The Plaintiff averred that the 1st Defendant is his late father while the 2nd and 3rd Defendants are strangers to him. He averred that his late father was born and raised on SOUTH UGENYA/RANGALA/116 (the suit property herein) which was his ancestral home, while none of the Respondents have ever resided thereon. The Plaintiff deponed that the 1st Defendant resides on his ancestral home, which is different from the suit property herein, yet he sold the suit property to the 2nd and 3rd Defendants. 20. The Plaintiff deponed that his father married his mother in the early 1980s and they established their matrimonial home on the suit property wherein they resided for their entire married life, which is over 20 years. That upon his father’s demise, he and his mother continued occupying the suit property. The Applicant states that the land is his ancestral land because when he was born, the land was registered in the name of the late Odhiambo Njero, his grandfather, as sole proprietor. He explains that he and his family have remained on the land since the 1980s through to his father’s demise on 26.06.2008. That his late father was buried on the suit property, and the family continued in occupation thereafter. He avers that on his father’s demise, the 1st Respondent then started threatening to evict them from the land. That on checking at the Land registry, they discovered that he had secretly succeeded his grandfather as the sole proprietor of the suit property in disregard of his late father’s right to inherit his father’s land. 21. The Plaintiff avers that the suit property measures 3.7 Acres in total and but they were only claiming 2 Acres thereof. At the time of instituting the suit, the land was registered in the name of the 1st Defendant, who was already a party to this suit and well aware of its existence. However, on 26.06.2017, during the pendency of the suit, the 1st Defendant damaged the fence erected along their portion of the property, forced his way into the compound and cut down mature trees as well as destroyed maize crops, and threatened to demolish their houses. The Plaintiff deponed that they filed an application and on 20.09.2017, obtained an order of injunction restraining the 1st Defendant from interfering with their possession. That on the said date, the court also issued an order of inhibition prohibiting the registration of any dealings or transactions against the title to the suit property. 22. The Plaintiff avers that despite being aware of this order, the 1st Defendant contemptuously transferred the entire suit property to the 2nd and 3rd Defendants on 06.11.2018, in an attempt to convolute the matters in issue and obstruct justice. That the 2nd and 3rd Defendants commenced Siaya Magistrate’s Court No. 38 of 2020 seeking to evict his mother and him from the land, which suit is still pending in court. That they only became aware of the change in registration when they were served with the summons in the lower court matter, and they amended the Originating Summons herein to include the 2nd and 3rd Defendants. 23. The Plaintiff herein states that when his mother died, the 1st Defendant obtained an order restraining him from burying her on the land, and he complied. However, despite the harassment by the 1st Defendant, the Plaintiff asserts that he continues in actual, physical and exclusive possession of the land. That having obtained a Grant and orders from this court, he continued with this suit on his own behalf and on behalf of his mother’s estate. 24. The 1st Defendant opposed the Originating Summons through a Replying Affidavit sworn on 13.04.2017. He deponed that the late Agnes Ochol Ogola was his brother Walter Njero Odhiambo’s wife. He averred that his said brother died in 1982 and was buried on a portion of the suit property. The 1st Defendant stated at the time that he was the registered proprietor of the suit land having inherited it from his late father, Odhiambo Njero. That the suit land was collective land where all his father’s sons lived before relocating to their apportioned parcels. That his other siblings relocated to a parcel known as South Ugenya/Rangala/77 in keeping with Luo customs. Further, that they have since put up their homes there, including the late Agnes Ochol Ogola’s co-wife, one Margaret Njero, but the Plaintiffs have refused to relocate to the said parcel 77. He admitted the fact of the Plaintiff’s occupation of the land for 12 years, but contended that their stay has not been peaceful or quiet since he had unsuccessfully tried to make them leave. 25. The 1st Defendant also avers that he sent a demand notice through the firm of Ken Omollo & Co. Advocates, which the Plaintiffs did not heed. He claims to have submitted the dispute before the village elders and the area chief, but the Plaintiffs still did not move to their rightful portion on parcel no. 77. The 1st Defendant denied the Plaintiffs’ claim for adverse possession, stating that there is a written agreement where the Plaintiffs agreed to vacate and relocate to Parcel No. 77. Further, adverse possession cannot arise as the suit land is ancestral land. 26. The 1st Defendant claimed to be a man of straw who had no other parcel of land, and that he was apportioned the suit land by his late father. He further explained that there were personal differences between him and the family since he was not sired by his late father, but was born of an inherited mother and was allocated land. He accused the Plaintiffs of greed and malice, and prayed that the Originating Summons be dismissed with costs, and instead he be issued with orders for the Plaintiffs to vacate the suit land to their rightful portion. 27. The 2nd and 3rd Defendants swore and filed a joint Replying Affidavit on 10th June, 2024 opposing the present Originating Summons. They conceded that they are joint owners of the suit property, having acquired it from the 1st Defendant in 2016. That they obtained Land Control Board (LCB) Consent, then the 1st Defendant executed transfer forms in their favour and the land was transferred to them. They claim that the Plaintiff’s late mother entered the land without their permission, consent or authority and occupied a portion of the suit land, pursuant to which they filed suit being Ukwala ELC No. 38 of 2020. 28. The 1st and 2nd Defendants aver that when the late Agnes Ochol died, they obtained an order stopping her burial on the suit land. They claimed that the Plaintiff is a stranger to them and does not reside on the land. They confirmed that Ukwala ELC No. 38 of 2020 is still pending in court, and the Plaintiff had been substituted in place of his mother. They explained that they got registered on 06.11.2018, thus the Plaintiff’s claim for adverse possession is not available against them. They denied holding the suit for the Plaintiff, or anyone else. They termed the suit misconceived, bad in law and an abuse of court, and asked that it be dismissed with costs. **HEARING AND EVIDENCE** **The Plaintiff/Applicant’s Case** 1. The suit was heard on 30.09.2025; 30.10.2025 and 5.12.2025. The Plaintiff herein testified as PW1. He introduced himself as a procurement officer working in Nairobi. PW1 adopted his Supporting Affidavit sworn on 08.08.2023 and Witness Statement of the same date as his evidence-in-chief. PW1 produced the documents in his List of Documents dated 14.08.2023 as PEXb1-13 in the order listed, with the photographs marked as PEXB13(a)-(d) respectively. PW1 also produced an Official Search at page 72 & 76 of his bundle as PEXb14, and another Official Search dated 07.07.2020 as PEXb15. PW1 testified that PEXb13(a) showed the 1st Defendant’s home in another location. He testified that he was claiming one half of the suit property as his ancestral land, where his father and grandfather were buried. 2. On being referred to the 1st Defendant’s Replying Affidavit he testified that his father and the 1st Defendant were distant cousins, not brothers, and that his father died on 26.06.2008 not in 1982. He testified that apart from receiving a demand letter in 2017, the rest of the years had been peaceful. He further told the court they have been using the land and he married and had his first child in the homestead on the land. He clarified that they had never utilised the remaining half of the land, but maintained that the 1st Defendant has never had a house on the land. PW1 testified that he did not know the 3rd Defendant, and had only met the 2nd Defendant in court. He denied the claim that the 1st Defendant had no other land and asserted that he is still in possession of the suit property. 3. PW1 upon cross-examination testified that the land passed from his grandfather, to his father and now to him and his mother, and anyone claiming it is a trespasser. He testified that the 1st Defendant obtained a Grant of Letters of Administration over his Grandfathers Estate, which was confirmed and he used it to transfer the land to himself on 07.09.2002. PW1 testified that he learnt of the Grant in 2017 when he filed the suit, but had never challenged it. He claimed that the 1st Defendant had taken the land fraudulently, by clandestinely succeeding his late grandfather but his father died before he could challenge it. That the 1st Defendant then transferred it to other people without his consent. PW1 asserted that the transfer to other people was fraudulent but his claim was for adverse possession. PW1 testified that the 2nd and 3rd Defendants were registered on 06.11.2018 after he had already gone to court. 4. On re-examination, PW1 indicated that he had instructed his advocate to peruse the court file for the succession file at Siaya, and added that neither he nor his father were involved in the succession cause. He reiterated that they had stayed on the land and tended their banana plantation. PW1 however denied that the transfer to the 2nd and 3rd Defendants was fraudulent. **The Defendant/Respondent’s Case** 1. The 1st Defendant testified as DW1 and adopted his Witness Statement dated 21.09.2020 as his evidence in chief. DW1 also produced the documents in the List of Documents dated 21.09.2020 as DW1 EXb1-9. He testified that the Plaintiff is his sibling’s son. That the suit property was clan land, that is currently being used by the 2nd Defendant. He testified that the Plaintiff does no live on the land but has his own land and lives in Alego where he buried his mother. That his father distributed the land in the 1960s when he DW1 was still a child. 2. On cross-examination, DW1 testified that he was born in 1958. DW1 testified that his mother lived in her first husband’s boma, where he was brought up. That, however, his mother was inherited by Odhiambo Njero, his real father. He claimed that Walter Odhiambo Njero, the Plaintiff’s father, was the son of Odhiambo Njero’s brother. He confirmed that Walter Odhiambo Njero was buried on the suit property. That prior to his demise, Walter Odhiambo Njero lived on the land with his late wife, Agnes Ochol Ogola, and their children, including the Plaintiff herein. DW1 testified that he did not know the year Walter died, but confirmed that in the years 2016/2017, the land was indeed registered in his name. 3. DW1 claimed that he was unaware of any interim orders requiring the Plaintiffs to remain on the land until the determination of the case. He testified that he had asked the Plaintiff’s to leave the land, but he never sued them. DW1 was referred to the letter dated 11.01.2017 and he denied knowing or ever seeing it. He confirmed selling the land to the 2nd Defendant, but he did not recall the year of sale or the purchase price. DW1 admitted that he did not have a boma on the suit property. He further confirmed that the late Agnes Ochol Ogola died on the suit property, even though she was not buried there. He also conceded that he never sued the late Agnes Ochol Ogola to get out of the land. 4. On re-examination, DW1 reiterated that between 2016/2017, the land was registered in his name. He testified that he is the one who instructed an advocate to write the letter dated 11.01.2017. 5. DW2 was William Eroba Ochandi. He told the court that he currently resides in Bukura, but prior to that, he lived and worked in Nairobi. DW2 told the Court that the 2nd Defendant is his legal wife. DW2 testified that the 1st Defendant sold him the suit parcel, which is now registered jointly to him and his wife. DW2 adopted the joint Witness Statement signed by himself and his wife on 10.06.2024 as his evidence in chief. The Defendant then produced the documents in their list of documents also dated 10.06.2024 from Item 3 onwards as DW2 EXb1-12. DW2 claims that he is currently occupying the suit land through his employee, and there is a house on the land. The witness denied the allegation that the Plaintiff is currently occupying part of the land. DW2 maintains that the Plaintiff had already vacated the land and since his mother died and was not buried on the land, none of them is occupying the land. 6. On cross-examination, DW2 testified that he found out about the land in 2016, and at the time, he found a number of homesteads on the land with approximately 5 houses. He states that he asked the 1st Defendant about the houses but he did not personally speak to the people living in the homes. That they did a sale agreement for the land and paid the full purchase price. DW2 testified that he was informed that the Late Agnes Ochol Ogola occupied the suit land and was not willing to vacate, but he was unaware the Plaintiff herein was on the land with his mother. He confirmed filing Ukwala Magistrates Court Case No. 38 of 2020 seeking eviction orders, and that at the time, he did know about the present suit. DW2 admitted that he did obtain orders stopping Agnes Ochol Ogola from being buried on the land, and conceded that had he not done so, she would have been buried on the land. 7. DW2 admitted to being aware of this suit, but he could not tell when he got to know of it. On being referred to the Agreement for Sale dated 13.05.2016 he confirmed that the signature therein belongs to him. On being referred to the Agreement dated 20.06.2016, DW2 testified that the signature thereon did not belong to him. He admitted that according to the Agreement dated 13.05.2016, he was only purchasing part of the suit property, not the whole of it. DW2 testified that he was not aware of the orders issued on 20.07.2017 when they applied for consent. DW2 could not remember the consideration he paid or the details of the bank through which he made the payment. 8. On re-examination, DW2 was referred to the order of 20.07.2017 and he testified that he was not party to the suit then. DW2 was then referred to the order issued on 30.10.2018 which dismissed the suit for want of prosecution, and he testified that the delay between the agreement and the LCB Consent was because of the case, but once it was dismissed, the door was opened for them to proceed with the transaction. DW2 claimed that he bought and paid for the entire suit land as shown at paragraph 21 of the Agreement dated 13.05.2016, and that is what was transferred to him. This marked the close of the Defence case as well as the close of the hearing. **SUBMISSIONS** 1. At the close of the hearing, the court invited the parties to file their final written submissions which they complied. **The Plaintiff/Applicant’s Submissions** 1. The Plaintiff’s submissions are dated 6th January, 2026, filed through the firm of Manwari & Co. Advocates. Setting out the factual and evidential background of the case Counsel on record for the Plaintiff submitted that the suit was brought pursuant to Sections 37 and 38 of the Limitation of Actions Act, Section 28 of the Land Registration Act, Section 3 and 3A of the Civil Procedure Act and Order37 Rule 7 of the Civil Procedure Rules. Counsel further cited Sections 7, 13, 16 and 17 of the Limitation of Actions Act. That an adverse possessor’s rights are overriding interests under Section 28(h) of the Land Registration Act. 2. It was submitted that the Defendants’ title stood extinguished under the aforementioned legal provisions, in favour of the Plaintiff and his mother after 12 years of their possession. Counsel submitted that the Plaintiff had complied with Section 38 of the Limitation of Actions Act as well as Order 37 Rule 7 of the Civil Procedure Rules. He urged that this court has jurisdiction to make such orders as are necessary for the ends of justice in the circumstances of the case. That a portion of registered land can be acquired by way of adverse possession. Reliance was placed on ***Titus Mutuku Kasuve vs Mwaani Investments Limited & 4 Others (2004) eKLR***, ***Elijah Ikoha Ikanzo vs Joseph Ngaira Asutsa (2006) eKLR*** and ***Mbugua Njuguna vs Elijah Mburu Wanyoike & Another (2004)***. 3. It was submitted that the Plaintiff is claiming a portion of the suit land measuring 2 Acres jointly in favour of himself and his mother’s estate. That the Plaintiff’s long possession of the land, together with his family, was admitted by the 1st and 2nd Defendants. He accused the 1st Defendant of misleading the court that other persons used to reside on the land. Counsel maintained that the Plaintiff and his mother had jointly remained in actual, exclusive, open, notorious, continuous and uninterrupted possession, occupation and use of one half of the suit property for over 12 years. 4. Counsel added that the 2nd and 3rd Defendants were registered as proprietors of the land on 06.11.2018 while the Plaintiff and his mother were in possession of their half of the land. Moreover, a change in the registration/proprietorship particulars does not affect an adverse possessors’ interests. Counsel drew guidance from Kipkoech ***Arap Langat & Richard Kipng’eno Mutai vs Kipng’eno Arap Laboso (2011) KEHC 3421 (KLR)***, ***Benson Mukuwa Wachira vs The Assumption Sisters of Nairobi Registered Trustees (2016) KECA 227 (KLR)*** and ***Nicholas Ireri Kamwende vs Victor Warungu Ndirangu & 2 Others (2020) KEELC 80 (KLR)***, ***Registered Trustee Catholic Diocese of Muranga’s vs Micere Njau & 3 Others (2022) KEELC 1929 (KLR), Wilson Njoroge Kamau vs Nganga Muceru Kamau (2020) KEELC 3904 (KLR)***. 5. On the effect of the death of the Plaintiff’s mother, Agnes Ochol Ogola, counsel added that a claim for adverse possession survives death and relied on ***Karuntimi Raiji vs M’makinya Mítunga (2013) KECA 504(KLR)***. It is urged that the Plaintiff had proved his case on a balance of probabilities. Counsel urged that it is in the interests of justice that the court enters judgment for the Plaintiff against the Defendants. **The Defendants/Respondents’ Submissions** 1. The Defendant’s submissions dated 25th April, 2026 were filed by the firm of Ken Omollo & Co. Advocates. Counsel referred the court to the definition of adverse possession in ***Mtana Lewa vs Kahindi Ngala Mwagandi (2015) eKLR*** and ***Mbira vs Gachuki (2002) eKLR***. it was argued that the existence of Ukwala ELC No. 38 of 2020 in which orders were issued stopping the burial of the Plaintiff’s mother on the suit land shows that his stay on the land has not been peaceful. In addition, that the late Agnes Ochol Ogola sued the plaintiff in Siaya Land Disputes Tribunal Case No. 31 of 2007 and a restriction was issued therein against the title as shown in the green card, further evincing that the alleged peace was lacking. 2. It was submitted that time for adverse possession started running against the Defendant on 08.11.2018 when they were registered as proprietors, thus 12 years have not lapsed. Reliance was placed in Kimani ***Ruchine & Another vs Swift Rutherford & Co. Ltd & Another (1980) eKLR*** and ***Francis Gitonga Macharia vs Muiruri Waithaka (1998) eKLR***. It was posited that the Plaintiff’s claim against the 3rd and 4th Defendant is premature and incompetent. 3. As regards the cancellation of the 2nd and 3rd Defendant’s title and rectification of the register, Counsel submitted that the said relief only issues when it is claimed that the title was not acquired properly. That this shows that the Plaintiff does not recognise the Defendant’s ownership of the subject land, yet in a claim for adverse possession, the claimant must recognize and accept the ownership of the land. Counsel relied on ***Mwalimu & 6 Others vs Halal & Another (2025) KECA 118 118 (KLR)*** and ***Mwatando Mwagambo Wasanga vs Ngaruko Mwangome & 10 Others (2014) eKLR***. 4. It was asserted that having claimed that the Defendants had never resided or occupied the land, the Plaintiff had failed to establish a prima facie case. Further, that having stated that he was born and raised on the land, he was claiming ownership of the land, and could not thus claim adverse possession of his own land. He concluded that the Plaintiff had not proved his case against the Defendants, and invited the court to dismiss the same with costs. **ANALYSIS AND DETERMINATION** 1. I have considered the pleadings, oral and documentary evidence adduced in court and the submissions filed on behalf of the parties herein and the following issues commend determination: - 2. ***Whether the Plaintiff has acquired the suit property by way of adverse possession;*** 3. ***Whether a claim for adverse possession can succeed where the Plaintiff has challenged the registered owner’s title; and*** 4. ***Who shall bear the costs of this suit?*** **Whether the Plaintiff has acquired the suit property by way of adverse possession** 1. The Plaintiff’s main claim is for adverse possession. The concept of Adverse possession was enunciated by the Court of Appeal in ***Mtana Lewa vs Kahindi Ngala Mwagandi (2015) eKLR***, as follows: - ***“I have anxiously considered the record of appeal, the grounds thereof, the ruling of the High Court, the rival submissions and authorities cited. Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is averse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act…”*** 1. The statutory underpinnings of the doctrine of adverse possession are to be found in Sections 7, 13, 17 and 38 of the Limitation of Actions Act (Cap 22 of the Laws of Kenya). In particular, Sections 7 thereof provides as follows: - ***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.*** 1. This court has the task of determining whether the Plaintiff has proved all the elements of adverse possession to justify the proprietary rights of the Defendants being extinguished, and their title being transferred to him and his late mother’s estate as the proprietors thereof. The Court of Appeal in ***Kisumu Civ App. No. 110 of 2016 Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR*** opined that a person claiming adverse possession must establish the following; - 1. on what date he came into possession. 2. what was the nature of his possession? 3. whether the fact of his possession was known to the other party. 4. for how long his possession has continued and 5. that the possession was open and undisturbed for the requisite 12 years. 2. In the present case, the Plaintiff asserts that he and his late mother have acquired the suit property by way of adverse possession having been on the land for over 12 years. The Plaintiff claims that his family has maintained possession of the suit property since his parents got married in the 1980s and established their matrimonial home on the land, through his parents’ demise and he is still in possession of the portion he is now claiming. 3. The 1st Defendant (DW1) testified that the Plaintiff’s parents had indeed been living on the land since they married. He contends however, that the land was allotted to him by the late Odhiambo Njero, who he claims was his biological father, and that all the other family members who lived on the suit land vacated and moved to South Ugenya/Rangala/77 according to Luo customs and this is what belongs to the Plaintiff’s family. The 1st Defendant also produced a Certificate of Official Search dated 17.01.2025 for the said parcel no. South Ugenya/Rangala/77 as proof. He indicated that he had asked the late Agnes Ochol Ogola to leave the land and she did not comply, but he admits that he never sued her or the Plaintiff. In addition, the 1st Defendant admits that both the Plaintiff’s parents died on the land, but only his father Walter Odhiambo Njero is buried on the land since there was a court order stopping Agnes from being buried on the suit property. 4. The 2nd Defendant testified as DW2. He admits that he was informed in 2016, the year the agreement was made, that the late Agnes Ochol Ogola, was living on the land and had refused to vacate. He further admitted that he found a number of homesteads on the land but he never spoke to the people living there. DW2 also admits that the late Agnes Ochol Ogola died on the land, but he had to get a court order to stop her burial thereon, and that had he not done so, she would have been buried on the land. 5. In a bid to unravel this dispute, the Assistant Chief, Rangala, one Mr. Edmond Okowa Dolo, prepared a status report of the suit property on 05.05.2025. It was established that a number of people who stayed at the home relocated to other land. That the last persons to occupy the land were the Plaintiff herein and his parents, but the Plaintiff had since relocated to Alego. The Assistant Chief further indicated that the 1st Defendant stays in Sidindi, Yiro East Sub-location in Yiro Location. The report notes that the late Agnes Ochol Ogola’s house still stands on the land but it is empty, while the Plaintiff’s house is locked since he relocated. Further, that he was entitled to the land as the grandson of Odhiambo Njero. 6. From the evidence outlined above, I am satisfied that the Plaintiff was able to demonstrate that his possession was open and notorious, and that it was actual, exclusive and continuous. 7. The court will proceed to interrogate the nature of the Plaintiff’s occupation. Under this head, the Plaintiff is required to satisfy the court that his occupation is without permission or consent and that it is averse to the rights and interests of the registered owners. 8. Addressing the adverse nature of the possession, the Court of Appeal in the case of ***Wambugu vs Njuguna (1983) KLR 173***,the explained as follows: - ***“In order to acquire by the statute of limitations title to land which has a known owner, that owner must have lost his rights to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose of which he intended to use it.*** ***The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession of the requisite number of years.”*** 1. Arising from the above dictum it is clear that it is not enough for a party to prove that he has been in possession for the requisite number of years, but whether he had the *animus possidendi* to acquire the suit land by way of adverse possession. This can only be proved by the Plaintiff showing the circumstances under which he dispossessed the true owner, or the circumstances under which the true owner’s possession was discontinued. 2. Concerning permissive possession, Justice Kuloba in the ***Gabriel Mbui vs Mukindia Maranya (1993) eKLR***, had this to say; - ***“(3) The occupation of the land by the intruder who pleads adverse possession must be non- permissive use, i.e., without permission from the true owner of the land occupied. It has been held many times that acts done under licence or permitted by, or with love of, the owner does not amount to adverse possession and do not give the licensee or permitted entrant any title under the limitation statute. If one is in possession as a result of permission given to him by the owner, or if he is in possession of the land as a licensee from the owner, he is not in adverse possession. Permissive occupation is inconsistent with adverse possession.”*** 1. What caught my attention in this case is how the Plaintiff and the 1st Defendant have totally denied each other. On the one hand, we have the Plaintiff, who claims that his father, Walter Odhiambo Njero, was the son of the late Odhiambo Njero, while the 1st Defendant was his father’s distant relative. The Plaintiff testified that the suit land was his ancestral home where he was born and raised. He further told this court that the land belonged to his grandfather, the late Odhiambo Njero, from whom it passed to his father, and thereafter to his mother and him. 2. Throughout his testimony, the Plaintiff maintained that he was claiming the suit as his ancestral land on which his grandfather was buried. The Plaintiff further claimed that the 1st Defendant acquired the land fraudulently. On this contention, the Plaintiff’s case is that his father, the late Walter Odhiambo Njero was more entitled to inherit the land from the late Odhiambo Njero. The Plaintiff states that the 1st Defendant disregarded this and obtained a Grant of Letters of Administration clandestinely, as neither he nor his late father were involved, although he admits that he has never challenged the said Grant. 3. On the other hand, the 1st Defendant states that he is the biological son of the late Odhiambo Njero, whereas Walter Odhiambo Njero’s father was his father’s brother. According to him, he inherited his father’s land, while the Plaintiff’s father’s family had its own land, where the other relatives had moved, being parcel no. South Ugenya/Rangala/77. Indeed, the 1st Defendant was appointed the sole Administrator of the Estate of the Late Adhiambo Njero in the Grant issued on 27.05.2002, which was confirmed on 09.10.2003. Upon confirmation, of the Grant the 1st Defendant sold the land to the 2nd and 3rd Defendant. Nevertheless, the 1st Defendant admits that the Plaintiff’s parents died on the land, but as earlier stated, only Walter Odhiambo Njero was buried on the land. 4. However, it is established that one cannot claim to have acquired land by adverse possession if he claims that the land, he is occupying is his ancestral land, or that he was born and brought up on the land, and that the registered owner has never been in possession of such land. In this regard I’m emboldened by the case of Haro ***Yonda Juaje vs Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR***, where the court stated that: - ***“One cannot claim to have acquired land by adverse possession if he claims that the land, he is occupying is his ancestral land having been born and brought up on the land and the registered owner has never been in possession of that land….one cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. It does not lie in the mouth of a claimant to aver that the title held by the registered proprietor was fraudulently acquired and then claim the same parcel of land under the doctrine of adverse possession.”*** 1. The Plaintiff’s case more or less echoes the above decision, where he has not only claimed the land is ancestral land, but also that the 1st Defendant had never built a home on the land. In short, having claimed the land as his inheritance or that he was occupying it under ancestral rights/interests, he cannot also claim that his stay on the land was adverse. The court therefore is not satisfied that the Plaintiff’s possession was adverse. 2. I’m however persuaded that notwithstanding their respective denials, both the Plaintiff and the 1st Defendant are and on the material before court, likely to bear some familial relationship to the late Odhiambo Njero. There is every possibility therefore that they may both possess a legitimate claim as beneficiaries of his estate. Regrettably, despite being in possession of the relevant facts concerning their relationship to the deceased, both parties have declined to make a full and candid disclosure to the Court. 3. However, that notwithstanding, I must quickly add that even had such disclosure been forthcoming, this Court is not vested with the requisite jurisdiction to determine whether the Plaintiff is a lawful beneficiary of the estate of the late Odhiambo Njero or to adjudicate upon their respective entitlement, if any, to the suit property. Those questions fall exclusively within the jurisdiction of the Family Division of the High Court exercising probate and succession jurisdiction. 4. Given that a grant of representation was duly issued and subsequently confirmed, the proper course available to the Plaintiff was to challenge the grant before the succession court by way of the appropriate proceedings and to seek a determination of any beneficial interest he may claim in the estate. In my view, there exists no apparent statutory limitation or other legal impediment that would preclude the Plaintiff from pursuing such relief before the succession court, notwithstanding that the suit property has since been transferred to the 2nd and 3rd Defendants. **Whether a claim for adverse possession can succeed where the Plaintiff has challenged the registered owner’s title** 1. In addition to claiming the suit as a legitimate beneficiary of the suit property, he also asserts that the registration of the title to the suit property in the Defendants’ names was actuated by fraud. As already stated, the Plaintiff claimed that the 1st Defendant title was procured through fraud through clandestinely obtaining the grant without involving him and his father. PW1 equally alleged that the transfer to the 2nd and 3rd Defendants was also fraudulent. 2. The Plaintiff has challenged the 2nd and 3rd Defendants’ title claiming that it was obtained fraudulently. The Plaintiff has pointed to the fact that on 14.07.2017, this court issued a temporary injunction restraining the 1st Defendant herein from interfering with the Plaintiffs possession pending interpartes hearing of the application dated 07.07.2017. This temporary order was confirmed upon the full hearing of the Application, with the court issuing an additional order of inhibition restricting the registration of any dealings on the suit land pending determination of this suit. 3. The 1st Defendant admits that as at the time of filing suit, he was the registered owner of the land and he produced a certificate of Official Search dated 05.05.2016 indicating that he was indeed the registered proprietor. The 1st Defendant mostly relies on the same documents as the 2nd and 3rd Defendants, being the two agreements for sale, the application for LCB consent, the LCB Consent dated 18.10.2018, as well as the transfer documents and title issued to the 1st and 2nd Defendants. 4. The Plaintiff has produced the Register for the suit parcel of land. The same reveals that it was opened on 11.03.1974 in the name of Odhiambo Njero. It was on 07.09.2004 transferred to the 1st Defendant herein vide Siaya SRM’S Succession Cause No. 15 of 2002 and a title issued to him on the same date. The register shows that the land was transferred to the 2nd and 3rd Defendants on 06.11.2018. It is noteworthy that the inhibition issued by the court on 20.07.2017 was never entered in the register. Therefore, it is evident that even if a search had been conducted by the Defendants at that point, they would not have found out about the order of inhibition. 5. I note, however, that when the suit land was transferred to the 2nd and 3rd Defendants on 06.11.2018, the suit herein had been dismissed for want of prosecution on 30.10.2018. That being the case, the suit was essentially no longer in existence, and the orders made on 20.07.2017 could not have been in operation in the absence of the suit in which they were issued. Since the transfer was affected at this time it cannot clearly therefore be said to have been affected irregularly or contrary to the orders of the Court. 6. It is trite however, that one cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. It is also trite that in claims of adverse possession, a claimant must first concede to the legality of the title held by the registered owner as to do otherwise would make the claim of adverse possession legally unsustainable. In this regard I draw support from the holding by the Court of Appeal in ***Catherine Koriko & 3 Others vs Evaline Rosa (2020) eKLR*** where the court thus: - ***“In Haro Yonda Juaje vs Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR it was stated:(29) One cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. It does not lie in the mouth of a claimant to aver that the title held by the registered proprietor was fraudulently acquired and then claim the same parcel of land under the doctrine of adverse possession.”*** 1. Clearly, a claim for adverse possession cannot co-exist with a claim that the registered owner’s title was obtained fraudulently. The Plaintiff’s claim for adverse possession is automatically defeated by virtue of the claim for fraud imputed on the Defendant’s titles. 2. This court further notes that the 2nd & 3rd Defendants produced an agreement for sale with the 1st Defendant dated 13.05.2016 for purchase of a part of the land known as South Ugenya/Rangala/116 measuring 1.3 Ha. for KShs. 1,100,000/-. The agreement is signed by the parties thereto and their respective witnesses. The 2nd and 3rd Defendants also produced an Agreement dated 20.06.2016, which equally states that they were buying only a portion of the suit property measuring 0.2Ha for KShs. 600,000/-. Despite clear evidence in the said agreements showing that the 2nd & 3rd Defendants only purchased a portion of the suit land, the entire suit parcel was transferred to them and they now hold a title deed for the entire suit land. 3. However, in so far as the 2nd and 3rd Defendants’ title purports to cover the whole of L.R. No. South Ugenya/Rangala/116 then the same is improper. I say so because if the Plaintiff’s claim was that the title issued to the 2nd and 3rd Defendants was in error due to the size of land transferred to them as opposed to what they purchased, then this court would have ordered a rectification of title to that effect. As it is, no such claim was made, nor attendant prayer sought. 4. I find it pertinent to address the question of whether the transfer to the 2nd and 3rd Defendants could interrupt time for adverse possession from running or affect any prescriptive rights so acquired. In ***Benson Mukuwa Wachira vs The Assumption Sisters of Nairobi Registered Trustees (2016) KECA 227 (KLR)*** the Court of Appeal cited with approval the case of ***Kipkoech Arap Langat & Richard Kipng’eno Mutai vs Kipng’eno Arap Laboso (2011) KEHC 3421 (KLR)***, holding as follows: - ***“In 1996 the appellant charged the suit land to the Kenya Commercial Bank to secure a loan of Shs.400,000/= and 1997. He took a further loan of Shs.600,000/= and a further charge for that sum was registered against the title to the suit land. What were the legal implications of this on the respondent’s claim for adverse possession? The point of law was addressed by the High Court siting in Kericho in the case of Kipkoech Arap Langat & Another versus Kipngeno Arap Laboso [H.C.C.C. No.124 of 2004 (0.S.)] Kericho in which the court correctly held: -*** ***‘Where a proprietor charges or mortgages land occupied by a trespasser adversely to the title of the proprietor, regardless of whether the trespasser is aware of such transaction, the act of charging or mortgaging the land does not interrupt time from running in adverse possession. Time for adverse possession continues to run. Such adverse possession is an overriding interest acquired or in the process of being acquired by virtue of Section 38 of the Limitations of Actions Act. It must be noted that where the proprietor transfers land, the act of transfer does not interrupt the running of time in adverse possession. In both cases of transfer and mortgage of land on which a trespasser is in adverse possession, the running of time in adverse possession is not interrupted. As adverse possession is an overriding interest (acquired or in the process of being acquired) under Section 30 (f) of the Registered Land Act, Cap 300, the mortgagee or transferee takes subject to such overriding interest’*.”** 1. Arising from the above it is clear that a change of ownership of the subject land, whether by selling or charging, does not affect an adverse possession claim. Nevertheless, this court has found that the Plaintiff’s occupation of the suit property did not amount to adverse possession. I will emphasise however the transfer to the 2nd and 3rd Defendants in these particular circumstances has no implications on the issue. 2. The upshot of the foregoing is that the Plaintiff has not convinced this court that he is entitled to the reliefs sought in the suit as contained in the Further Amended Originating Summons dated 8th August, 2023. **Who shall bear the costs of this suit?** 1. On costs the court will be guided by the provisions of Section 27(1) of the Civil Procedure Act, which provides that Courts have discretion in awarding the costs of a suit or any litigation. However, the general rule is that costs shall follow the event unless the Court, for good reason, orders otherwise. 2. The Plaintiff has failed to prove his claim for adverse possession as set out in the Further Amended Originating Summons. Ordinarily, this court would have awarded the Defendants the costs of the suit. However, the court has noted that there is a possibility that the Plaintiff and the 1st Defendant are relatives and members of the same family, who already appear estranged, thus an order as to costs may serve only to exacerbate hostility and undermine any possibility of a reconciliation. Consequently, it will be prudent for each party to bear their own costs of the suit. **DISPOSITION** 1. The upshot for the foregoing is that the plaintiffs’ suit is hereby dismissed. Each party to bear their own costs of the suit. **Delivered** and **Dated** This **30th Day** of **July 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **30/07/2026** **Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** No appearance for plaintiff No appearance for defendants Court Assistant : Abiud Wekesa