https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3475

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MIGORI** **CIVIL SUIT NO. E022 OF 2024** **IN THE MATTER OF LAND PARCEL NO. KAMAGAMBO/KANYIMACH /204** **BETWEEN** **ELLEN OGOT OGWA……………………………………….1ST APPLICANT** **LARIUS OGOLA OKECH…………………………………2ND APPLICANT** **V E R S U S** **ADOYO BONDO………………………………………………..RESPONDENT** **JUDGMENT** 1. The Applicants, now plaintiffs brought this Originating Summons against the Respondent, under Order 37 Rules 7, 8, 14, 15, 16, 17, 18, 19 and Section 1A, 1B and 3A of the Civil Procedure Act and Section 38 of the Limitation of Actions Act, and all enabling provisions of the law. They prayed that the Court makes a determination of: **1. Whether the Applicants are entitled to be registered as proprietors of title Number Kamagambo/Kanyimach/204.** **2. Whether the Respondent holds the title Number Kamagambo/ Kanyimach/204 in trust for the Applicants.** **3. Whether the Land Registrar Migori County should rectify the Land register by registration of the Applicants Ellen Ogot Ogwa and** **Larius Ogola Okech as proprietors of Title Number Kamagambo/ Kanyimach/204.** **4. Whether damages are payable to the Applicants, and the quantum thereof.** **5. Who to bear the costs of these summons and interest thereon.** **6. Such other or further relief as the nature of the case may require** **or this Honourable court may deem just to grant.** 1. The Summons did not have any grounds as a basis but were supported by the affidavits of Ellen Ogot Ogwa and Larius Ogola Okech. In the Affidavit of Hellen Ogot Ogwa she deponed that the suit land Kamagambo/ Kanyimach/204 belonged to and was registered in the names of Ochola Raodo and Nyatenya Agayi who were brother and nephew to my late father in law Ezekiel Okech (Ratego). Further, that one Ochola Raodo never married and died sometime in 1980. In addition, Nyatenya Agayi, though married, had no offspring and he and his wife died in 1996. 2. During the lifetime of Ochola Raodo and Nyatenya Agai, and following their demise, the applicant’s family members and her occupied, utilized and been in possession of the land, conducting therein agricultural activities such as sugarcane farming, maize growing, cereals and animal pasture. 3. Upon visiting the land registry in 2023, she got to know that the land parcel they had been in occupation of was on 28/8/89 registered in the name of Adoyo Bondo. She annexed a green card and certificate of official search and marked them EOO-1 and EOO-2 respectively. She did not know Adoyo Bondo nor had she met him/her at any one time. She claimed that the land was ancestral land and belongs to her and my family of Kajuoga, Kaigunye Clan. She had been in continuous and uninterrupted possession of the land from the date of registration of title in 1977 which was upwards of 35 years from the time Adoyo Bondo got registered against the title as proprietor. She had thus acquired the land by way of adverse possession. 4. Her further deposition was that besides conducting agricultural activities on the suit land, she had fenced it and maintained the land boundaries and planted trees thereon. Further, her nephew Larius Ogola Okech settled, built and maintained a home thereon. 5. She deposed that the defendant held the land in trust for her and her family. They were entitled to be registered as proprietors while the defendant's registration ought to be cancelled and the register be rectified to have her registered as proprietor of the title. She prayed that she was entitled to be registered as proprietor of the suit land to which the respondent held no valid title. She prayed the Court to direct the County Land Registrar to rectify and have her and him registered as the proprietors of title number Kamagambo/Kanyimach/204. She prayed for an award of damages, costs and interest at court's rates. 6. As for Larius Ogola Okech, he swore that he belonged to Kajuoga Kaigunye Clan. She added that he resided and left in parcel number Kamagambo/ Kanyimach/204 which land belonged to and was registered in the name of Ochola Raodo and Nyatenya Agai by way of inheritance from our great grandfather Raodo Ochola. Further, that Ochola Raodo and Nyatenya Agai did not have any offspring and died in 1980 and 1986 respectively. In their lifetime her family used and utilized the land and continued to use this land parcel Kamagambo/Kanyimach/204 even after their demise. 7. An unknown person to them, one Adoyo Bondo, was registered as owner on 28/8/89 of the suit land. She had never met him and had never heard of him. He has since 2001 established a home and erected a dwelling house, animal shed, stores and other structures and resided thereon. She further fenced off roughly 2 acres of the land for her exclusive use out of the land parcel and continued to utilize, with the 1st applicant and other family members using the rest. She had animals, both grazers and browsers on the land and had the used the land for subsistence, arable purposes and for ploughing and tending of crops continuously and without any interruption since 2001. Both she and the 1st applicant contended that the defendant held the land in trust for them and the Okech family of hence they were entitled to be registered as proprietors thereof. She annexed and marked LOO-1 a demand letter dated 24/10/2023 which had been issued to the defendant. She prayed that the County Land Registrar be directed to rectify the register and have the applicants registered as the proprietors of the title to the suit land and the Court to award them damages, costs and interest at court's rates. 8. The suit proceeded to hearing. The 1st Applicant testified as PW1. She stated that she had sued the defendant the suit parcel of land and had sworn an affidavit on 25th June 2024. She relied on the Affidavit and the annextures thereto as are evidence in chief. She produced as Exhibit 1 and 2 the green card and certificate of official search respectively. She prayed that the Originating Summons be allowed as prayed. 9. PW2 was Larious Apollo who was the 2nd Applicant. He stated that he had filed an affidavit in support of the originating summons and wished to rely on it as his evidence in chief. He produced a copy of a demand letter as PExhibit 3. He prayed that the name of the defendant be removed from the register, and his and his mother’s names be inserted as proprietors of the land. He added that they had farmed on the and planted sugar cane on it. Further, he had crops on it. Again, it was on the suit parcel of land where he had erected a home. He and his mother resided on it. He said he needed only two (2) acres while the balance should be registered in the name of his mother. 10. At the close of the applicants’ and respondent’s cases the plaintiff submitted on the case. 11. The applicants submitted that they had applied to be registered owners of Land Reference Number Kamagambo/Kanyimach/204 by way of adverse possession. They argued that the depositions in their affidavits were that they had been in occupation and possession of the land parcel Kamagambo/Kanyimach/204 from upwards of 35 years, peaceably. 12. Further, that the 1st applicant farmed on it and tended to her crops in the larger portion of the land, while the 2nd applicant had built his house and farmed on roughly 0.8 hectares of the land. They relied on Kinguru v Gathangi (*sic*) at para G-A page 259–260. They argued that they had formally proved their claim of adverse possession and deserve the orders prayed and that the provisions of Section 38 of the Limitation of Action Act have been met. **ISSUE, ANALYSIS AND DETERMINATION** 1. I have considered the pleadings in this Originating Summons, the evidence that has been given and the submissions. I am of the view that the issue for determination is whether the applicants have proved their case on a balance of probabilities. Attendant to it is who to bear the costs of the Originating Summons. 2. The law on adverse possession is governed by Section 38(1) of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya, as read with Sections 7, 13 and 17 of the Act. A claim for adverse possession would succeed where a party claiming the land proves the elements thereof. These elements are stipulated in the Limitation of Actions Act. 3. **Section 7** of the Act is couched on the following terms:- **“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. The Act makes a further provision for adverse possession at **Section 13** as follows: **“ (1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.** **(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land.** **(3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12 (3), the land in reversion is taken to be adverse possession of the land.”** 1. Under **Section 38** of the Limitation of Actions Act, a party claiming land by adverse possession may approach the court for a declaration that the property devolved to him in accordance with the doctrine. Section 38(1) of the Act states as follows; **“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 a proprietor of the land.”** 1. These provisions have been expounded in a number of decisions and I need not reinvent the wheel. The first one this Court wishes to be guided by is the *locus classicus* of **Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR**, wherein the court said:- **“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 nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.** 1. Therefore, for a claim of adverse possession to succeed certain conditions must be fulfilled. The Court of Appeal in the case of **Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR** stated as follows:- **“At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and section 38 of the Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land.** **Therefore the critical period for the determination whether possession was adverse is 12 years and the burden is on the person claiming to be entitled to the land by adverse possession to prove, not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land, that the adverse possessor has done acts on the land which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it. See Littledale v Liverpool College (1900)1 Ch.19, 21.** 1. This court thus needs to know whether the plaintiff has tendered evidence to prove the *nec vi, nec clam, nec precario* principle. In **Abdulkhall Mohamed Abdulkhalik Mazurui & 2 others v Josiah Kafuta J. Mtila & another [2021] KECA 653 (KLR)** the Court of Appeal held, “The burden of proving adverse possession lay with the 1st respondent who made the claim. That burden was to be discharged by him demonstrating, on a balance of probabilities, that his possession was adverse; open, peaceful, without consent of the 1st and 2nd appellants and for an uninterrupted period of 12 years, expressed in Latin as nec vi, nec clam, nec precario. Or, as Lord Hoffmann put it in **R. vs. Oxfordshire County Council ex p. Sunningwell Parish Council** [2000] 1AC 335 at 350, **'not by force, nor stealth, nor the licence of the owner'.** See also **Kimani Ruchine vs. Swift Rutherford & Co.Ltd** [1980] KLR on this point.” 1. Turning to the in the instant case, the two applicants adopted the depositions in their affidavits sworn on 24th June 2024. The first applicant, PW1 deponed that at first, the suit land, Kamagambo/ Kanyimach/204, belonged to and was registered in the names of Ochola Raodo and Nyatenya Agayi who were brother and nephew to her late father in law Ezekiel Okech (Ratego). The two has since died, leaving no heirs. The Applicant and her family had during the lifetime of the deceased and after occupied, utilized and been in possession of the land, conducting therein agricultural activities such as sugarcane farming, maize growing, cereals and animal pasture. In 2023, she learnt that suit land had been registered on 28/8/89 in the name of Adoyo Bondo. She neither knew nor had ever met him. She claimed that the land was ancestral land and belonged to her and my family of Kajuoga, Kaigunye Clan and she been in continuous and uninterrupted possession of the land from the date of registration of title in 1977 which was upwards of 35 years from the time Adoyo Bondo got registered against the title as proprietor. She deposed further that she had fenced and maintained the boundaries of the land, conducted agricultural activities and planted trees thereon, and her nephew Larius Ogola Okech had settled, built and maintained a home thereon. 2. Larius Ogola Okech testified as PW2. He too adopted his affidavit in which he deposed that he belonged to Kajuoga Kaigunye Clan and had resided on the suit land. It belonged to Ochola Raodo and Nyatenya Agai by inheritance from their great grandfather Raodo Ochola. Ochola Raodo and Nyatenya Agai did not have any offspring and died in 1980 and 1986 respectively. During their lifetime his family used and utilized the land and continued to use it even after their demise. A person unknown to them, one Adoyo Bondo, was registered as owner on 28/8/89 of the suit land. He had never met and ever heard of him. He had established a home and erected a dwelling house since 2001, built an animal shed, stores and other structures and resided thereon and had fenced off roughly 2 acres his exclusive use while the 1st applicant used the rest. He had animals, both grazers and browsers on the land and had the used it for subsistence, arable purposes and for ploughing and tending of crops continuously and without any interruption since 2001. 3. PW1 produced as PExhibit 1 and 2 the green card and certificate of official search respectively while PW2 produced the demand letter. 4. This Court has carefully analyzed the PExh 1 and 2. They both show that the land is registered in the name of the Defendant. It had been initially registered in the names of Ochola Raodo and Natenya Agayi on 17.10.1977. It there is no indication as to why and when their names were cancelled. Be that as it may the current owner is the one sues herein. He has not defended the suit. Thus, the evidence of the applicants remains uncontroverted and clear. 5. Regarding the claim for damages., it was not proved. There was no evidence led as to what damage the applicants had suffered by the Respondent being registered as owner. I thus disallow it. 6. In the end, I find that the applicants have proved their claim on a balance of probabilities since they have shown that they have been in occupation of the Defendant’s land for over twelve years in an uninterrupted and open manner without his permission. Thus, I enter judgment for the applicants against the Respondent as follows: **a) The Applicants have acquired the land parcel No. Kamagambo/Kanyimach/204 by way of adverse possession and are entitled to be registered as proprietors thereof.** **b). The Respondent holds the title Number Kamagambo/ Kanyimach/204 in trust for the Applicants, and he is directed to sign all the instruments of transfer of the same in favour of the applicants within the next 30 days, in default thereof the Deputy Registrar of this court to execute the same in that behalf.** **c) The Land Registrar Migori County is ordered to rectify the Land register by registering the Applicants Ellen Ogot Ogwa and** **Larius Ogola Okech as proprietors of Title Number Kamagambo/ Kanyimach/204, in the share as follows, the 1st Applicant approximately 3.8 Ha and the 2nd Applicant approximately 0.809 Ha (or approximately 2 acres) thereof.** **d) The applicants to partition and or subdivide the parcel of land in the respective portions they each claim, as per relief No. (c) above. The cost of survey and such subdivision be met by them.** **e) The Respondent is to bear the costs of these Summons and interest thereon**. 1. Orders accordingly. **JUDGMENT** Dated, Signed and Delivered virtually via the Teams Platform this **08th day of June 2026.** **HON. DR. IUR NYAGAKA,** **JUDGE** **In the presence of,** Ms. Theuri for Oduk for the applicants No appearance for the Respondent