https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4721

### REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KISUMU ELCLOS E044 OF 2025 **IN THE MATTER OF AN APPLICATION FOR ACQUISITION OF TITLE BY ADVERSE POSSESSION OF LAND PARCEL KISUMU/OTHANY/733** **AND** **IN THE MATTER OF LIMITATION OF ACTIONS ACT, CAP. 22 LAWS OF KENYA** **BETWEEN** **PETER OTIENO OKELLO...................................APPLICANT/PLAINTIFF** **VERSUS** **CHARLES OMONDI OMWARE...................RESPONDENT/DEFENDANT** ### JUDGMENT ### Introduction [1] This is a ruling on an Originating Summons dated 21st July 2025, instituted under the substantive provisions of Section 38 of the Limitation of Actions Act (Chapter 22 of the Laws of Kenya) and Order 37 Rule 7 of the Civil Procedure Rules 2010. The Plaintiff, Peter Otieno Okello, seeks the following: i) A declaration that he has lawfully acquired title to the 0.50 hectares comprised in Land Reference Number Kisumu/Othany/733 by virtue of adverse possession. ii) An order directing the rectification of the register by deleting the name Charles Omondi Omware and substituting it with the name of Peter Otieno Okello as the proprietor of the aforementioned parcel of land, and that he be issued with a title deed in respect of the said property. iii) An order vesting the title to all that parcel of land described as Kisumu/Othany/733 in his name, and all necessary statutory forms to be signed by the Deputy Registrar of the Court as the situation may necessitate. iv) An award of special damages as per a valuation report dated 5th June 2025. v) Costs of the suit. [2] On 16th October 2025, the matter was first mentioned before the Deputy Registrar. Mr Odhiambo for the Plaintiff signalled readiness, while Mr Oguso for the Defendant stated that he had only filed a Notice of Appointment. The Court gave the Defendant fourteen days to file and serve their replying affidavit and documents, with leave for the Plaintiff to file a further affidavit after service. A mention was scheduled for 24th November 2025 to confirm compliance. When the matter came up, the Defendant appeared but did not file any documents as directed. The Deputy Registrar then scheduled the next mention before the Judge on 28th January 2026 and issued a notice to the Defendant, who again did not appear. The Plaintiff’s counsel asked for the matter to proceed by *viva voce* evidence. The Court set the hearing for 18th March 2026, giving the Defendant thirty days to file responses and directing the service of a hearing notice. The matter subsequently proceeded undefended through *viva voce* evidence. ### Summary of Plaintiff’s Case [3] The Plaintiff’s case rests on a Supporting Affidavit dated 21st July 2025, a Witness Statement filed concurrently with the Originating Summons, and oral evidence. In the Supporting Affidavit, the Plaintiff deposed that the subject matter of the dispute, Kisumu/Othany/733, is registered in the Defendant’s name. He annexed a Certificate of Official dated 14th May 2025, which confirms the land’s approximate area as 0.50 hectares. The Certificate also verifies that the land has been registered in the Defendant’s name since 25th November 1994. [4] The Plaintiff deposed that he entered into a legally binding agreement to purchase the entire parcel of land from the Defendant on 2nd August 2003. He annexed a copy of the handwritten agreement to his affidavit. He asserted that he took physical and exclusive possession of the suit parcel in 2003 and commenced cultivation without objection from the owner. He further averred that he has been in constant, exclusive occupation, use, and possession of the parcel of land since 2003, without interruption. Having continuously occupied the land for over the twelve-year statutory threshold, the Plaintiff posits that he has permanently acquired the said parcel of land by adverse possession. [5] The Plaintiff deposed that he made several follow-ups to have the title transferred. These efforts proved futile because the Defendant sought to renegotiate the terms of the original agreement of sale. The Plaintiff expressed apprehension that the Defendant intended to sell the suit property to third parties. [6] The Plaintiff stated that the Defendant, acting in concert with his family members, cut down trees he had planted. In response, the Plaintiff reported the matter to the area Chief on 30th May 2025. He annexed a copy of a letter from the Chief of South Central Seme Location to the Forest Officer, requesting an assessment and valuation of the damage. The Plaintiff also annexed a Tree Valuation Report dated 5th June 2025, compiled by the Sub-County Forest Officer for Kisumu West and Seme Sub-County. The Plaintiff further filed a criminal complaint of malicious damage to property at the Bodi Police Post, recorded under Occurrence Book Number 02/13/05/2025. [7] In his oral testimony, the Plaintiff clarified that he was to clear the outstanding balance of Kshs. 10,000 upon the transfer of the land into his name. He recounted an instance when the Defendant visited his home, excusing his failure to finalise the transaction by claiming he had left his national identity card at his workplace, where he was employed as a fisherman. He stated that he wrote a demand letter to the Defendant, which elicited no response. ### Analysis and Determination [8] Having reviewed the Originating Summons, the Supporting Affidavit, the annexed documentary exhibits, and the Plaintiff's uncontroverted oral testimony, the issues for determination are: i) Whether the legal and evidentiary thresholds required for the grant of orders of adverse possession have been satisfied ii) Whether the Plaintiff is entitled to an award of special damages iii) Who shall bear the costs? #### The Statutory and Jurisprudential Framework Governing Adverse Possession [9] The substantive law underpinning this transfer of proprietary rights is anchored in the Limitation of Actions Act (Chapter 22 of the Laws of Kenya). Section 7 of the 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”.* [10] Section 13 of the Act qualifies this twelve-year timeline by setting out the circumstances in which the limitation clock begins to run against the registered owner. It provides that: *“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 Section 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.”* [11] The section further clarifies that if a right of action has accrued, but the land subsequently ceases to be in adverse possession before the statutory right is barred, the right of action is no longer deemed to have accrued, and a fresh right of action will not arise unless and until another person again takes adverse possession of the land. [12] The consequence of failing to assert one’s rights within this twelve-year window is set out in Section 17 of the Act, which provides that, at the expiration of the period prescribed by the Act for any person to bring an action to recover land, that person’s title to the land is extinguished by operation of law. [13] Finally, Section 38 of the Limitation of Actions Act provides the procedural vehicle for a claimant to formalise title, that: *“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land”.* [14] While the statutes set out the precise timeline and the ultimate remedy, it is the common law, as interpreted by decades of judicial precedent, that defines the nature of possession required to trigger the statute. The Court of Appeal, in ***Mtana Lewa v Kahindi Ngala Mwagandi[2005] KECA 532 (KLR),*** stated: ***“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 of stealth not 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”.*** This legal threshold is encapsulated in the ancient Latin maxim: *nec vi, nec clam, nec precario,* meaning possession without force, secrecy, or permission. The evidentiary burden rests squarely on the claimant to show that their occupation was actual, open, notorious, exclusive, continuous, and fundamentally hostile to the registered owner's proprietary interests for an uninterrupted period of twelve years. [15] The key issue in this case is that the purchaser took physical possession of the land under a valid but incomplete sale contract, having paid only part of the purchase price. Historically, the jurisprudence drew a clear line based strictly on the completion of the purchaser's financial obligations. In ***Public Trustee v Wanduru Ndegwa [1984] KECA 72 eKLR,*** the Court of Appeal clarified that, for a purchaser in possession, the period for adverse possession begins to run only upon payment of the full purchase price. The underlying equitable rationale is that, upon full payment, the vendor ceases to have any legitimate equitable claim to possession of the land and, by operation of law, becomes a constructive trustee holding the legal title for the sole benefit of the purchaser. If the vendor subsequently fails to execute the transfer of title within twelve years of that final payment, the vendor’s right to recover the land is permanently extinguished. [16] The doctrine of constructive trust plays a significant role in such full-payment scenarios, as affirmed in ***Willy Kimutai Kitilit v Michael Kibet [2018] eKLR,*** where the court recognised that the equitable doctrines of constructive trust and proprietary estoppel are applicable to defeat a registered title when the purchaser has fully performed their obligations. [17] Notably, recent Court of Appeal jurisprudence leans towards protecting innocent purchasers who find themselves trapped in stalled conveyancing transactions due to the vendor’s default. In ***Okul & Another v Ondieki & 3 Others [2026] KECA 882 (KLR),*** the Court of Appeal affirmed that where a purchaser takes physical possession of land under a sale agreement that is not completed through no fault of the purchaser, the resulting long-term occupation can constitute adverse possession. The Court stated that: ***“28. On this issue therefore, we find that entry into land as a result of a contract or a sale agreement that is not completed especially by no fault of the purchaser can be deemed as adverse. In the instant case, the sale agreement was not completed but the respondents had moved in and occupied the land, erected structures and had been in possession for over 30 years.”*** [18] The Plaintiff has demonstrated that he paid half the purchase price upfront. His testimony, corroborated by the demand letter dated 17 December 2022, proves that he was willing, ready, and able to pay the balance of the purchase price. According to the Plaintiff’s uncontroverted evidence, the transaction failed because the vendor sought to renegotiate a concluded contract. The Plaintiff cannot be legally prejudiced or denied the protection of the Limitation of Actions Act by the vendor’s deliberate failure to complete the transaction. [19] Having established the exact date the limitation period commenced (February 2004) and expired (February 2016), it is necessary to evaluate whether the Applicant’s physical actions on the land during this period met the criteria of *nec vi, nec clam, nec precario.* [20] The requirement that possession be open and notorious *(nec clam)* mandates that the occupation must be apparent to all, affording the registered owner an opportunity to notice the occupation of their property. The Plaintiff has presented evidence that he cultivated the land continuously and planted trees. [21] The requirement that possession be continuous for twelve years has also been met on the evidence. The Plaintiff remained in undisturbed, peaceful occupation from 2003 until the intrusion around May 2025. By the time of the interruption, twenty-one years had elapsed since the transaction became void, thereby exceeding the twelve-year statutory threshold. [22] The requirement that possession be without force *(nec vi)* is likewise satisfied. The initial entry in 2003 was peaceful and consensual, based on the execution of the sale agreement. Continued occupation after the agreement became void was not maintained by force but by continuous, unopposed agricultural use. [23] Therefore, on a balance of probabilities, the Plaintiff has fully discharged his burden of proof. He has demonstrated actual, open, notorious, exclusive, continuous, and adverse occupation of the suit land for a period vastly exceeding twelve years. #### Special Damages [24] The Originating Summons contains a prayer for special damages arising from the actions in May 2025, when the Defendant is alleged to have entered the land and cut down trees. In law, a claim for special damages must be specifically pleaded in the primary pleadings and strictly proved by the party asserting it. Accordingly, the exact figure claimed should be set out in the pleadings and supported by documentary evidence. The Plaintiff did not plead the damages in this way, and I disallow the prayer. **Costs** [25] The final issue concerns the award of costs. Section 27(1) of the Civil Procedure Act confers broad discretion on the Court to award costs, guided by the time-honoured principle that costs should ordinarily follow the event, meaning the successful party is entitled to recover their reasonable legal costs from the unsuccessful party unless there are compelling reasons to depart from this rule. In the present matter, the Plaintiff has been largely successful in establishing his claim for adverse possession. The entire litigation was set in motion by the Defendant’s failure to fulfil his contractual obligation and to facilitate the land transfer. Given these circumstances, there is no justification for departing from the general rule. The costs of this Originating Summons are consequently awarded to the Plaintiff. ### Final Orders [26] Judgment is hereby entered in favour of the Plaintiff, against the Defendant as follows: i) A declaration is made that the Plaintiff, Peter Otieno Okello, has acquired title to land parcel number Kisumu/Othany/733, measuring approximately 0.50 hectares by adverse possession. ii) An order is issued directing the Land Registrar, Kisumu County, to forthwith rectify the land register by cancelling the name of the Defendant, Charles Omondi Omware, and substituting it with the name of the Plaintiff as the absolute proprietor of Kisumu/Othany/733. iii) An order is issued vesting the title of Kisumu/Othany/733 in the name of the Plaintiff. iv) The Deputy Registrar of the Environment and Land Court at Kisumu is hereby authorised and directed to sign all necessary documents to facilitate the registration of the suit property in the name of the Plaintiff if the Defendant fails to execute them within thirty (30) days of being requested to do so. v) The Defendant shall bear the costs of this suit. **Delivered virtually, signed and dated this 23rd day of July 2026** **C.C. Oluoch Judge** In the presence of: The Plaintiff and the Defendant in person Faith Court Assistant In the absence of the Plaintiff’s counsel.