https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1434

Odongo & another v Ouma (The Administrator of the Estate of Hellen Auma OJuok (Deceased)) (Civil Appeal E132 of 2021) [2026] KECA 1434 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1434 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal E132 of 2021 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Mary Omollo Odongo 1st Appellant Apollo Odhiambo Guya 2nd Appellant and Patrick Ojuok Ouma (The Administrator of the Estate of Hellen Auma OJuok (Deceased)) Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court of Kenya at Kisumu (Ombwayo, J.) dated 13th March 2020inELC Case No. 13 of 2019) Judgment 1.This is an appeal from the judgment and decree of the Environment and Land Court of Kenya at Kisumu (Ombwayo,J) dated and delivered on 13th March 2020 in Environment and Land Case No. 13 of 2019. 2.Hellen Auma Ojuok, (the deceased), moved the Environment and Land Court (the ELC) through Originating Summons dated 17th April 2019, seeking a declaration that she had acquired prescriptive rights over Land Parcel No. Kisumu/Karateng'/1653 (the suit property) through adverse possession, having satisfied the requirements under the Limitation of Actions Act; prayed for an order declaring her the lawful proprietor of the suit property and an order restraining Mary Omollo Odongo and Apollo Odhiambo Guya (the appellants) from entering, wasting, damaging or otherwise interfering with the suit property. 3.The facts giving rise to the suit before the ELC were that the deceased’s husband, Patrick Joseph Ojuok, purchased a portion of land then known as Kisumu/Karateng/35 from Gabriel Sule Obuny in 1973, paid the full purchase price and took possession immediately. The deceased and her husband who were then working and residing in Nairobi, allowed the deceased’s mother-in-law, Mikal Okello Onyino, to utilize the portion of the suit property between 1973 and 1989 and when she died, the deceased’s father-in-law, Boaz Onyino, utilized the suit property between 1989 and 1995. Meanwhile, the deceased’s husband passed away on 16th November 1981. 4.From 1995 to 2000, the deceased allowed her brother-in-law, John Ouma Konyino, to use the suit property before the deceased eventually retired and returned home in 2000 and continued with the possession of the suit property. 5.Notwithstanding the fact that the deceased was in possession of the portion they purchased, Gabriel Sule Obuny subdivided the parcel No. Kisumu/Karateng/35 in 1985 to create parcel the suit property which included the portion the deceased’s husband purchased and which the deceased was occupying, and registered it in his name. After Gabriel Sule Obuny died, his daughter, the 1st appellant, obtained a grant of letters of administration of his estate and subsequently transferred the suit property the 2nd appellant. 6.It was the deceased’s case that from the time the suit property was purchased in 1973, her family remained in open, peaceful continuous and uninterrupted possession, occupation and use of the suit property first, through her family members up to 1999 and thereafter by herself from 2000. The deceased, therefore, urged the ELC to find that she had been in peaceful occupation of the portion of suit property for over 45 years and the ELC should, therefore, grant the orders she had sought. 7.The 1st appellant opposed the deceased’s claim through a replying affidavit sworn on 18th June 2019, contending that the suit property remained in her father’s name until his death in 1993; that she commenced succession proceedings in 1998; transferred the suit property into her name in 1999 and she thereafter transferred it to the 2nd appellant on 21st June 2018. 8.The ELC considered the evidence and rival arguments by the parties and in its judgment dated and delivered on 13th March 2020, found in favour of the deceased; held that the deceased had proved on balance of probability that she had been in peaceful occupation of the portion of the suit property for over 45 years and declared that she had acquired the portion through adverse possession and ordered that title be issued in her name. 9.The appellants were dissatisfied and filed this appeal and raised several grounds faulting the decision of the ELC in: finding that the respondent proved the claim for adverse possession on a balance of probability without sufficient evidence; failing to appreciate the totality of the evidence before it and the submissions made on their behalf thus, reached a conclusion that was contrary to the evidence; directing the Deputy Registrar of the ELC Kisumu to execute the application for consent to subdivide and transfer the suit property to the deceased and a title deed be issued in her name; failing to appreciate the history of the suit property which was ancestral land belonging to the family of the late Gabriel Sule Obuny, therefore the registration of the entire parcel into the respondent's name was in fact void; failing to put into consideration the fact that the appellants have lived and cultivated on the suit property thus, the orders of adverse possession granted are malicious and unconstitutional and that the ELC misunderstood and wrongly evaluated the evidence and arrived at a wrong conclusion. The appellants prayed that their appeal be allowed with costs; the judgment of the ELC be set aside and they be declared the lawful owners of the suit property. 10.This appeal was canvassed through written submissions. At plenary hearing, Mr. Sala, learned counsel, appeared for the appellant while Mr. Munuang’o, learned counsel, appeared for the respondents. Both counsel relied on their respective parties’ submissions which they briefly highlighted. 11.Mr. Sala submitted that the ELC erred in finding that the deceased proved her claim of adverse possession over the suit property; that the ELC failed to appreciate the historical background of the suit property which was ancestral land belonging to the family of the late Gabriel Sule Obuny and that registration of the entire property in the deceased’s name as the sole proprietor was void. 12.Counsel further submitted that the deceased was not in uninterrupted occupation of the suit property; that other person, including the family of Josphat Moses Ochieng, occupied the suit property between 1990 and 1994 and questioned the deceased’s alleged occupation of the suit property from 2000, contending that there was no evidence to substantiate the claim that the deceased was carrying out farming on the suit property during that period. 13.According to counsel, the appellants disputed the deceased’s claim regarding occupation of the suit property by the deceased’s mother in law and Mikal Okello Onyino, asserting that it was the late Gabriel Sule Obuny who allowed Mikal Okello Onyino to occupy a portion of the land, a fact that was corroborated by Robert Alang’o. Counsel took the view, that a claim founded on adverse possession cannot succeed where possession is with the owner’s permission or is pursuant to a sale agreement. 14.Counsel went on to argue, that the deceased’s testimony was inconsistent with regard to the date on which she commenced occupation of the suit property; that the deceased failed to explain why her late husband did not register the suit property in his name after purchasing it in1973 and pointed out that the sale agreement relied on did not bear the particulars of either the witness or the magistrate who signed it. It was counsel’s position, that the deceased and her family had long been dispossessed of the suit property contrary to the position they advanced in court. 15.Additionally, counsel submitted that the deceased did not satisfy the legal requirements for sustaining a claim for adverse possession and relied on Ruth Wangari Kanyagia v Josephine Muthoni Kinynjui [2017] eKLR, for the proposition that a claimant for adverse possession must demonstrate peaceful, open and continuous possession which is adequate in continuity, publicity and extent so as to show that the possession is adverse to the interests of the true owner. Counsel again relied on Wambugu v Njuguna [1983] KLR 172 for similar submissions. 16.Mr. Munuang’o, on his part, submitted that the deceased’s family was in possession of the suit property for a period exceeding the twelve years statutory period prescribed under section 7 of the Limitation of Actions Act and relied on Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR for the proposition that adverse possession arises where a person takes possession of land, asserts rights over it and the registered proprietor neglects or fails to assert his title for the prescribed period of twelve years. Counsel emphasized that possession must be adequate in continuity, publicity and extent so as to demonstrate that it is adverse to the title of the registered owner, and relied on Mbira v Gachuhi (2002) 1 EA 137 and Wambugu v Njuguna [1983] KLR 172, for that submission. 17.Counsel again submitted, relying on Mombasa Teachers Co- operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 Others [2018] eKLR; Public Trustee v Wanduru Ndegwa [1984] eKLR; Githu v Ndeete [1984] KLR 776 and Hosea v Njiru & Others [1974] EA 526, that a claimant must establish non-permissive, actual, open, notorious, exclusive and adverse occupation of the land for an uninterrupted period of at least twelve years, which the deceased had established. 18.Counsel submitted that the possession became adverse in 1973 upon payment of the full purchase price and the immediate entry into the suit property which remained uninterrupted for more than forty years; that the occupation was open, peaceful and consistent with the established principles governing adverse possession thus, the deceased proved her entitlement to ownership of the suit property on a balance of probabilities. Counsel urged this Court to dismiss the appeal with costs. 19.This being a first appeal, it is by way of a retrial and this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. (Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557(KLR)). 20.We have considered the submissions made on behalf of the parties and the applicable law. The single issue for determination is whether the deceased acquired the suit property by operation of the law. Put differently, whether the deceased proved that she had acquired the suit property through adverse possession. 21.Section 7 of Limitation of Actions Act provides that 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. Section 7 of the Limitation of Actions Act is therefore the foundation of any claim for adverse possession. 22.Adverse possession operates against ownership where by it extinguishes the rights of a registered owner over the parcel of land in question following prolonged actual, open, notorious, exclusive, peaceful occupation or possession of the land for a period exceeding twelve years. The person claiming adverse possession bears the burden to prove adverse possession on a balance of probability. (Mawji v Hasham & Another (2010) 2 EA 296) 23.In Lewa v Mwagandi [2015] KECA 532 (KLR), this Court held 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 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 Court emphasized that the possession of the adverse possessor should neither be by force; stealth nor under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. (See also Wambui Gikwa v Paul Kimani Muraba [2016] KECA 71 (KLR)). 24.We have reconsidered and reevaluated the evidence ourselves. The deceased’s husband purchased a portion of the suit property in 1973, signed a sale agreement; paid the full purchase price and took possession immediately. However, because deceased and her husband were working and residing in Nairobi, they allowed relatives, first the deceased’s mother in law, Mikal Okello Onyino, to stay and work on the suit property between 1973 and 1989; followed by the deceased’s father in law, Boaz Onyino, from 1989 to 1995; thereafter the deceased’s brother in law, John Okello Konyino, between 1996 and 2000 when the deceased returned home and continued with possession of the suit property. 25.Gabriel Sule Obuny, the seller, subdivided Parcel No. Kisumu/Karateng/35 resulting into the suit property which forms part of the portion that had been purchased and was being occupied by the deceased, and registered it in his name. After Gabriel Sule Obuny’s death, his daughter, the 1st appellant, took out a grant of letters of administration for his estate; had it confirmed and transmitted the suit property into her name and later transferred it to the 2nd appellant. 26.The deceased’s case was that from the date her husband purchased the land in 1973, they took possession, they had open, peaceful and continuous occupation and use of the suit property through her family members and later herself and she was fully dependent on that suit property. The deceased’s position was supported by John Ouma Omollo; David Otiande and Amos Aringo Ajumbo that the deceased’s family took possession of the suit property and had been using it throughout. 27.The 1st appellant’s response was that the suit property was registered in her father’s name until his demise in 1993 after which she obtained a grant of letters of administration; transmitted the suit property into her name in 1999 before she transferred it to the 2nd appellant on 21st June, 2018. 28.The 1st appellant did not dispute the fact that a portion of the suit property was sold to the deceased’s husband in 1973; that the full purchase price was paid; that the deceased and her husband took possession immediately and used the suit property openly, peacefully, continuously and without interruption for a period exceeding 12 years until the deceased filed the suit before the ELC asserting her claim for adverse possession. Neither the 1st appellant’s father nor herself took action to disrupt the deceased’s possession and evict her from the suit property. 29.Based on the uncontroverted evidence on record, we are satisfied, as the ELC was, that the deceased established that the possession was open, peaceful and adequate in continuity for a period exceeding twelve years thus, disposed the registered owner’s right over the land. The ELC was, therefore, right in concluding that the deceased had acquired title to the suit property through adverse possession and that she was entitled to a declaration to that effect. 30.The totality of the foregoing is that we find no merit in this appeal and we hereby dismissed it with costs. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIAJUDGE OF APPEAL..........................................E. C. MWITAUDGE OF APPEAL..........................................B. ONGAYAJUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR.