https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5128

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT BUSIA ELC CASE NO. 25 OF 2019 (OS) IN THE MATTER OF LIMITATIONS OF ACTIONS ACT CAP 22 LAWS OF KENYA AND IN THE MATTER OF ACQUISITION OF TITLE BY ADVERSE POSSESSION OF DEFINED PORTION ON LAND PARCEL SOUTH/TESO/AMUKURA/18 BY PETER OJAKAA, WILLIAM JAKAIT AND ANGELIS ADEDE SALAMA OKELE BETWEEN PETER APPLICANT WILLIAM APPLICANT OKAJAA…………...………………………......………1ST JAKAIT……………………………………………..…2ND ANGELIS ADEDE SALAMA OKELE………………………...3RD APPLICANT VERSUS MOSES MUKHOMBE PAMBA………………………………… RESPONDENT JUDGMENT 1. The applicants herein took up the Originating Summons dated 27th March 2019 and amended on 6th December 2023 for determination of the following questions: - BUSIA ELC 25 OF 2019 – JUDGMENT 1 | P a g e a) Whether they (applicants) have become entitled by adverse possession to the whole of the land parcel known as L.R NO. South Teso/Amukura/18 measuring 3.0 hectares; b) Whether they (applicants) should be registered as proprietors of a portion of land parcel known as South Teso/Amukura/18; c) Whether an injunction should issue restraining the respondent, whether by his servants, agents, employees or otherwise from illegally interfering with their (the applicants’) quiet possession and enjoyment of the said defined portion of land parcel known as L.R NO. South Teso/Amukura/18. d) Whether an injunction should be issued restraining the respondent whether by his servants, agents, employees or otherwise from constructing, developing and otherwise dealing in a defined portion of the parcel of land known as L.R NO. South Teso/Amukura/18. e) Costs of the suit. BUSIA ELC 25 OF 2019 – JUDGMENT 2 | P a g e 2. The applicants’ suit is premised on the ground that they have been in adverse possession of a defined portion of the parcel of land known as L.R No. South Teso/Amukura/18 for over 12 years prior to filing of the instant suit, since 1982. 3. The applicants complain that the respondent has by unjustified and direct encroachment, sought to alienate or take possession of the suit property, L.R No. South Teso/Amukura/18. 4. As can be discerned from the pleadings filed in this suit and the evidence adduced in respect thereof, the applicants entered the suit property in 1982 or thereabout. The entry of the applicants was premised on a sale agreement allegedly signed between John Pius Cornel Okelele (now deceased) and Gabriel Pamba (also deceased). John Pius Cornel Okelele is an uncle to the 1st and 2nd applicants and the father to the 3rd applicant while John Pamba is the father of the respondent. 5. It is the applicants’ case that John Pius Cornel Okelele bought the land for them; that they have been living peacefully in their homestead in the said defined portion of land since the year BUSIA ELC 25 OF 2019 – JUDGMENT 3 | P a g e 1982; that Gabriel Pamba died before processing for them documents of title in respect of the defined portion of land they occupy and that the respondent, who is a son of Gabriel Pamba, has refused to process for them documents of title for the defined portion of land which they are entitled to by right owing to the agreement of sale. 6. In reply and opposition to the application, the respondent filed a replying affidavit sworn on 28th May 2019 in which he has inter alia deponed that the suit property belonged to Francis Malala and Gabriel Pamba, who are deceased, having passed on in 1978 and 1997 respectively; that Francis Malala and Gabriel Pamba held the suit property in equal shares; that the said Francis Malala and Gabriel Pamba were registered as proprietors of the suit property on 28th August 1996 and that the agreement purportedly entered into between Gabriel Pamba, Francis Malala and John Pius Cornel Okelele is a forgery. 7. The respondent acknowledges that the applicants, (particularly) the 1st and 2nd applicants, have lived on the suit property for a long period of time but contends that their use and occupation BUSIA ELC 25 OF 2019 – JUDGMENT 4 | P a g e has not been peaceful as there have been disputes and litigations over the suit property. 8. Terming the instant suit res judicata Kakamega HCC 36 of 1994 (OS) which was dismissed in 1999, the respondent points out that there exists another suit between the parties to this suit namely Busia CMC ELC No.22 of 2018 and contends that the instant suit is meant to circumvent the hearing of the suit in the lower court in which he inter alia seeks eviction orders against the applicants. 9. According to the respondent, there exists material contradiction between the statements filed in the instant suit and the statements filed in Kakamega HCC 36 of 1994 (OS) in that in the former suit, Cornel Okelele stated that he bought the suit property for his sister, Leonida Olima and settled her on the land while in the instant suit, it is stated that the land was purchased for the 1st and the 2nd applicants. 10. Claiming that sometime in 1980 Cornel Okelele approached his father for swapping of the suit property with another parcel of BUSIA ELC 25 OF 2019 – JUDGMENT 5 | P a g e land, which proposal his father declined, the respondent explains the circumstances upon which the 1st and the 2nd applicants, through their mother, Leonida Olima, entered into the suit property as follows: - “That upon my father declining the swap, the 3rd defendant caused him to be arrested for bicycle theft upon which he was arraigned in court, charged, tried, convicted and sentenced to six months’ imprisonment and it is during this prison term that the 3rd defendant went ahead and unlawfully brought Leonida Olima on this land.” 11. Terming the applicants intruders/trespassers and/or squatters on the suit property who ought to be evicted from the suit property, the respondent urges the court to dismiss the applicants’ suit with costs to him. 12. Pursuant to directions given on 23rd March 2026, the amended Originating Summons was converted to a plaint and the replying BUSIA ELC 25 OF 2019 – JUDGMENT 6 | P a g e affidavit as the statement of defence and the matter set down for hearing by way of viva voce evidence. 13. When the suit came up for hearing, the 1st applicant, Peter Ojakaa (PW1) relied on the amended Originating Summons dated 6th December 2023 and his witness statement dated 4th January 2025 after they were admitted as his evidence in chief. 14. PW1 informed the Court that the suit property is registered in the name of Moses Pamba (the respondent), who is a son of the person who sold the land to John Okelele; that John Okelele was their uncle and that after their uncle bought the land, they moved into the suit property and they have lived there for 14 years. PW1 further informed the Court that they have put up structures and have been carrying out farming activities on the suit property. 15. In cross examination, PW1 stated as follows: - “I was born in 1959…The suit property was bought by our uncle John Okelele for my brother and I. At that time, I was in form four at Kolanya High BUSIA ELC 25 OF 2019 – JUDGMENT 7 | P a g e School. I went to form 1 when I was 18 years. I was 23 years in form 4. My father’s name is Elseyo (deceased). He was born in Kenya but moved to Uganda. Under the law I am entitled to inherit land from my father. Cornel Okelele (my uncle) has six children. We are not his children. He bought 6 acres and gave his sister (our mother 4 acres). He bought the land from Gabriel Pamba. My mother’s name is Leonida Olima, Cornel’s sister. I am not aware of any case filed by Cornel or a representative of his estate regarding the suit property. We have also not brought any case against the seller, Gabriel Pamba. We have not obtained any letters of administration to bring the suit on behalf of the estate of Cornel Okelele. Leonida Olima, our mother, has not filed any case and she is not a witness in this case although she is the one who was given 3 acres by her brother.” BUSIA ELC 25 OF 2019 – JUDGMENT 8 | P a g e 16. Upon being referred to paragraph 4 of John Okelele’s supporting affidavit to the Originating Summons in the defendant’s list of documents filed on 10th June 2019, PW1 stated as follows: - “I thought the land was bought in 1983 although in his affidavit my uncle states he bought the land in 1983 and that he paid for the land in instalments…In the same affidavit he states he paid at once. I do not have any witness who can come to court and state that they were present when my uncle entered into agreement with Gabriel Pamba.” 17. PW1 further stated that the suit by his uncle was filed because there was a dispute between his uncle, his mother and Gabriel Pamba. 18. Concerning the re-amended plaint in the defendant’s list of documents- CMC ELC No. 22 of 2018, PW1 stated as follows: - “The above documents show that there were numerous ongoing cases over the years between BUSIA ELC 25 OF 2019 – JUDGMENT 9 | P a g e the parties. Therefore, our occupation was not uninterrupted.” 19. Upon being referred to the title for the suit property, PW1 stated as follows: - “I have not brought any document showing Francis Pamba gave consent for sale of the suit property as he is one of the registered owners. The land is agricultural land. We have not brought any consent from the Land Control Board or spousal consent from Gabriel Pamba’s wife. Gabriel Pamba died in 1997 and was buried on the suit property. We have not brought any document showing we objected to him being buried on the land. Antony Barasa was a son of Gabriel Pamba. He died in 2008 and was buried on the suit land.” 20. In re-examination PW1 stated as follows: - BUSIA ELC 25 OF 2019 – JUDGMENT 10 | P a g e “The three applicants have brought this suit against the respondent (son of the seller). My brother and I have lived on the suit land for 42 years. The cases referred to earlier in cross examination were between our uncle, our mother and the respondent’s father. We were not involved.” 21. Based on the averments contained in the affidavit sworn in support of Kakamega HCC 36 of 1994, paragraph 5, PW1 stated as follows: - “As early as 1994 our uncle had settled my mother and I on the suit land. In that case some of the orders being sought were eviction orders. This clearly shows we have been living on the land and we have been there to date. We are claiming 4 acres because this is the land we occupy. Francis occupies the remaining three acres.” BUSIA ELC 25 OF 2019 – JUDGMENT 11 | P a g e 22. The 2nd applicant, William Jakait, relied on his witness statement recorded on 4th September 2025 after it was adopted in his evidence in chief. 23. PW2 informed the court that they have always lived in the suit property without interference; that the respondent and his family only came up in 2019 when their mother died claiming that their mother should not be buried in the suit property, which claim or attempt to stop her burial on the suit property did not succeed. 24. In cross examination, PW2 stated as follows: - “My uncle purchased the land from Gabriel Pamba not Moses Pamba. I purchased no land. Although we have not brought the case as representatives of the Estate of my uncle, we are the ones living on the land and is that’s why we have brought the suit to protect our occupation. We have not brought the suit against the estate of Gabriel Pamba although the title deed is in his name. BUSIA ELC 25 OF 2019 – JUDGMENT 12 | P a g e In our amended O.S we are claiming 7 acres. The reality is that we are claiming 4 acres because that is the size given to our mother and that is the land we occupy.” 25. Upon being referred to the affidavit sworn in support of the Originating Summons filed in Kakamega O.S 36 of 1994, paragraph 5 thereof, PW2 stated as follows: - “The land was bought for our mother not us. We settled on the land and we have lived there ever since. I stand by this although my written statement states the land was bought for my brother and I. Gabriel Pamba was buried on the suit land. We objected but we have not brought any document in court. Gabriel’s son was also buried on the land. Our mother is also buried on the land although the respondent’s family objected. On the ground, the 4 acres and the 3 acres are separated. We live on 4 acres and the respondent’s BUSIA ELC 25 OF 2019 – JUDGMENT 13 | P a g e family lives on 3 acres. I did not witness or participate when my uncle entered into an agreement with respondent’s father and I have no witness in court to testify that they are aware of the agreement. For a long period of time we have not had peace on the land. The owners of the land have continuously threatened us over the years. I am not a son of Okelele. He’s my uncle. Our father has no land. If he had land, we would have inherited it but our mother was given land by her brother.” 26. In re-examination PW2 stated: - “In our claim (amended OS) we are claiming a portion of the land, not the entire parcel. We have not lived in peace but no one has ever evicted us from the land and we want our title deed.” 27. The defendant/respondent, Moses Mukhombe Pamba, who testified as DW1, relied on his witness statement recorded on 28th BUSIA ELC 25 OF 2019 – JUDGMENT 14 | P a g e May 2019 and his replying affidavit of even date after they were admitted as his evidence in chief. He also produced the documents listed in his list of documents dated 4th January 2025 after they were admitted in evidence as Dexbt 1 to 9. These are; Title deed for L.R No.South Teso/Amukura/18; Certificate of death for Gabriel Pamba; Certificate of death for Francis Pamba; Letters of Administration issued in Busia Succession Cause No. 150 of 2018; Letters of Administration issued in Busia Succession Cause No.1359/2018; Green card in respect of LR No. Bukhayo/Kisoko/907; Originating Summons filed in Kakamega High Court No.4 of 1996; Proceedings in Kakamega High Court No.36 of 1994 and amended plaint filed in Busia MCELC 22 of 2018. 28. DW1 informed the court that the suit property was initially registered in the names of Francis Pamba and Gabriel Pamba. 29. DW1 further stated as follows: - “I am not aware that the applicants purchased the suit property from my late father and that they have been living in the suit property peacefully. BUSIA ELC 25 OF 2019 – JUDGMENT 15 | P a g e We have had a dispute with the plaintiffs for a long time and we have been to court severally. The suit property measures 7.5 acres and is ancestral land. The plaintiffs are claiming 4 acres but initially wanted the entire parcel in another case which they had filed. The plaintiffs currently occupy 2 acres forcefully and they have prevented our family from utilizing 5.5 acres for example in putting electricity and cultivating. The 3rd applicant is deceased and he has never lived in the suit property.” 30. DW1 urged the Court to find that the plaintiffs are not entitled to the land by adverse possession. 31. In cross examination DW1 stated as follows: - “I have been sued in my personal capacity and not in my capacity as administrator of the 2 estates. In Kakamega 4 of 1994, John Okelele and Leonida BUSIA ELC 25 OF 2019 – JUDGMENT 16 | P a g e sued my father as persons who were in occupation. The plaintiffs have not brought the case as administrators of the estate of John Okelele and Leonida. Although the plaintiffs and their parents have been in occupation of the suit property for over 30 years, their occupation has not been peaceful. We have tabled evidence showing the several cases our families have had in regard to the suit property.” 32. In re-examination DW-1 stated: - “The land in dispute is South Teso/Amukura/18 not parcel number 907 and although the plaintiffs are in occupation, I do not have capacity to give them a title deed.” 33. Dolphine Taabu, who testified as DW2, relied on her witness statement recorded on 21st May 2019 after it was admitted as her evidence in chief. She informed the Court that the respondent is her brother-in-law; that her husband, the respondent’s brother, died and was buried in the suit property; that she has lived in the BUSIA ELC 25 OF 2019 – JUDGMENT 17 | P a g e suit property since 1986 when she was married by the respondent’s brother and that both the plaintiffs’ family and the respondent’s family have lived and continue living in the suit property but without peace. DW2 further informed the court that during her father-in-law’s lifetime, the dispute was taken to the chief and elders but was not resolved. 34. Based on information allegedly given to her by her father of law, DW2 stated that her father in law was to exchange land with Okelele but Okelele deceived him and stated that he had stolen a bicycle; that as a result, her father in law was arrested, charged and convicted; that Okelele and his family entered in the suit property while her father in law was in jail and that her father in law never got the land that was to be exchanged. 35. In cross examination DW2 stated as follows: - “When I got married in 1986 I found the plaintiffs living on the land. Currently the plaintiffs are utilizing 5 acres of the suit property. I only use or occupy 2 acres. A road divides the two parcels of BUSIA ELC 25 OF 2019 – JUDGMENT 18 | P a g e land. The defendant does not live or utilize the land. My prayer to court is that the 5 acres being utilized by the plaintiffs be returned to our family.” 36. In re-examination, DW2 stated: - “The defendant does not live on the suit property but the suit property is his ancestral land. When he visits the ancestral land, he stays in my home.” 37. At close of hearing, parties filed submissions which I have read and considered. 38. From the pleadings, evidence and submissions, I find the sole issue for the court’s determination to be whether the plaintiffs/applicants have made up a case for being granted the orders/reliefs sought. 39. The applicants’ pleadings and evidence is to the effect that their entry into the suit property was on account of a sale agreement entered between their uncle John Pius Cornel Okelele (now) deceased and the respondent’s father (Gabriel Pamba) sometime in 1982. BUSIA ELC 25 OF 2019 – JUDGMENT 19 | P a g e 40. Despite having premised their claim for adverse possession of the suit property on the alleged sale agreement which was entered into between their uncle and the respondent’s father, during hearing, the applicants did not tender any evidence capable of showing that indeed their uncle bought the suit property from the respondent’s uncle and if indeed he bought land, what size and/or what the terms of the sale agreement were. The applicants also failed to produce any evidence capable of showing proof of payment, of the agreed purchase price. 41. The respondent, on the other hand vehemently denied existence of any sale agreement between the plaintiffs’ uncle and his father, deceased. According to the respondent, the applicants’ entered into the suit property in 1997 and have been in use and occupation of 2 acres of land comprised in the suit property (according to DW1) and 5 acres comprised in the suit property, according to DW2. 42. Although the applicants in their pleadings, claim entitlement to the whole of the suit property, being 7 acres or thereabout, BUSIA ELC 25 OF 2019 – JUDGMENT 20 | P a g e during hearing, they informed the court that their claim is limited to 4 acres comprised in the suit property, which they have been in exclusive use and possession for over 30 years. 43. The respondent, particularly through the testimony of DW2, acknowledged that the portion occupied by the applicants, comprising 5 acres or thereabout, is distinct from the area she occupies comprising 2 acres or thereabout. 44. As to whether the applicants’ use and occupation of the suit property has been peaceful, it is common ground that it has not because there have been suits between the parties to this suit or their predecessors in entitlement to the suit property. 45. Owing to the existence of previous suits between the parties to this suit or their predecessors in entitlement to the suit property, the respondent, through his response to the instant suit contends that the instant is res judicata the former suits. 46. Concerning the respondent’s claim/contention that the instant suit is res judicata the former, upon review of the evidence adduced by the respondent in respect of that contention, BUSIA ELC 25 OF 2019 – JUDGMENT 21 | P a g e comprised in pleadings filed in the former suits and court proceedings in respect of those suits, I finding nothing capable of demonstrating that the former suits were heard and determined on their merits by a court with jurisdiction to hear and determine the suits. For that reason, I find the claim to be unsubstantiated/not proven. 47. Despite there being evidence that the applicants have been in use and occupation of the suit property for a long period of time, in aggregate over 30 years, the applicants having premised their claim to entitlement of existence of a sale agreement entered into between their uncle and the respondent’s uncle. For them to succeed in their claim to entitlement of the suit property on account of adverse possession of it or a portion, the burden was on the applicants to demonstrate what the terms of the agreement were and most importantly that their predecessor in entitlement or claim to the suit property paid the purchase price in full. In that regard, see the case of Muchiri & another v Kimani (Environment & Land Case 795 of 2017) KEELC BUSIA ELC 25 OF 2019 – JUDGMENT 22 | P a g e 16645 (KLR) (23 March 2023) (Judgment) where the Court stated/held: - “The following principles, among others, regarding adverse possession are now settled; “Adverse possession is not available to a party who is on the registered owner’s land with his consent or where the entry and occupation was lawful and based on some agreement. In other words, where the title of the owner is admitted there can be no claim for adverse possession. See Samuel Miki Jane v Jane Njeri Richu Civil Appeal No. 122 of 2001; the occupation of the land must be nec vi, nec clam, nec precario. See Mtana Lewa v Kahindi Ngala, Civil Appeal No. 56 of 2014; the adverse possessor must prove that through his occupation the true owner has been dispossessed or his possession discontinued. See Wambugu v Njuguna (1983) KLR 172; It is equally established that adverse possession does not arise merely by occupation and use. See Alfred Warimo v BUSIA ELC 25 OF 2019 – JUDGMENT 23 | P a g e Mulaa Sumba Baraza, Civil Appeal No. 186 of 2011 (Ksm)…” 30. In the case of Samuel Miki Waweru v Jane Njeri Richu, Civil Appeal No. 122 of 2001, (UR), this Court delivered the following dictum: “… it is trite law a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in (accordance with) provisions of an agreement of sale or lease or otherwise. Further, as the High Court correctly held in Jandu v Kirpal [1975] EA 225 possession does not become adverse before the end of the period for which permission to occupy has been granted.” 31. Equally in the case of Wambugu – v- Njuguna, (1983) KLR 172 at holding 4, this Court held: “Where the claimant is in exclusive possession of the land with leave and license of the appellant in pursuance to a valid agreement, the possession BUSIA ELC 25 OF 2019 – JUDGMENT 24 | P a g e becomes adverse and time begins to run at the time the license is determined.” 48. Also see the case of Munyanya v. Keya (Environment and Land Appeal E003 of 2021) (2022) KEELC 15045 KLR (22 November 2022) (Judgment) where the Court stated/held: - “Having entered the property pursuant to a sale agreement, his presence thereon would have been with the permission of the seller and time for purposes of adverse possession could only begin to run upon full payment of the purchase price. See Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR.” 49. Having premised their claim for adverse possession on existence of a sale agreement and failed to prove what the terms of the agreement were and most importantly, that their predecessor in entitlement to the suit property paid the purchase price thereby causing time to start running in his favour, I find the applicants’ BUSIA ELC 25 OF 2019 – JUDGMENT 25 | P a g e have failed to prove their pleaded case on a balance of probabilities and l dismiss it with costs to the respondent. 50. Orders accordingly. Judgement dated, signed and delivered at Nyahururu this 28th day of July, 2026 through Microsoft teams. L. N. WAITHAKA JUDGE In the presence of:- N/A for the Plaintiffs/ Applicants Mr. Yiose for Defendant/Respondent Court Assistant: Bedan BUSIA ELC 25 OF 2019 – JUDGMENT 26 | P a g e