https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5007

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC LOS NO. E014 OF 2023** **RAPHAEL MANGENI OKUMU ……………………..….. APPLICANT** **= VERSUS =** **KARANGA BOMBORO ODINDUKHA …………….. RESPONDENT** **J U D G M E N T** 1. The Applicant, **RAPHAEL MANG’ENI OKUMU**, instituted this suit by an Originating Summons dated 16th November 2023 under **Sections 7** and **38** of the **Limitation of Actions Act**, seeking to be declared the owner by adverse possession of 0.6 hectares comprised in land parcel **SAMIA/BUKANGALA B/379**, registered in the name of the Respondent, **KARANGA BOMBORO ODINDUKHA**. 2. In the Originating Summons and the Supporting Affidavit, the Applicant averred that he has been in actual, open, peaceful, continuous and uninterrupted possession of the disputed portion for over forty years, having entered the land in 1978. 3. He deposed that he has extensively developed the land by cultivating food crops and has exclusively occupied the 0.6-hectare portion without interruption. He further stated that his occupation has been open and notorious and is well known to neighbours, relatives and members of the community, who recognize the disputed portion as belonging to him. 4. He therefore contended that the Respondent’s title over the disputed portion had been extinguished by operation of **Sections** **7** and **38** of the **Limitation of Actions Act** and prayed for orders declaring him the lawful proprietor of the said portion, directing its transfer into his name and permanently restraining the Respondent from interfering with his possession. 5. The Respondent opposed the claim through a Replying Affidavit sworn on 18th January 2024. He admitted that he is the registered proprietor of parcel **SAMIA/BUKANGALA B/379**, but denied that the Applicant’s occupation was adverse. 6. He explained that he had owned parcel **SAMIA/BUKANGALA B/317** since 1997, where he established his homestead and developed several permanent and semi-permanent houses while carrying out farming activities. He further deposed that the Applicant is his nephew, being the son of his late brother, and that following the death of the Applicant’s father, he took in the Applicant together with his mother and raised him as his own child. 7. The Respondent further stated that upon the Applicant attaining adulthood, he merely permitted him to cultivate a distinct portion of the family land for farming purposes. According to him, parcel **SAMIA/BUKANGALA B/317** was subsequently subdivided into **SAMIA/BUKANGALA B/379** and **SAMIA/BUKANGALA B/380**, with parcel No. 379 being registered in his name. 8. It was therefore his case that the Applicant’s occupation was by his permission and could not amount to adverse possession. He further asserted that the Applicant also occupies another parcel of land registered in the name of his elder brother, **QUINTO ODUORI OKUMU,** and accused the Applicant of taking advantage of the family relationship and his generosity in an attempt to acquire land that did not belong to him. 9. At the hearing, the Applicant adopted his witness statement dated 22nd May 2025 as part of his evidence. He testified that the Respondent is his paternal uncle who took care of him after the death of his father. He stated that in 1978, the Respondent allocated him the disputed portion of land where he settled, built his home, raised his children and grandchildren and cultivated crops. 10. He told the Court that in 2021, the Respondent demanded that he vacate the land and later attempted to construct on it, leading to intervention by the area Assistant Chief and the police after persons sent by the Respondent invaded the land and destroyed his cassava crop while attempting to put up a house. He maintained that despite those events, he had continuously occupied the land from 1978 until filing the present suit in 2023. 11. During cross-examination, the Applicant admitted that the Respondent had given him the land, that he had sold approximately 2½ acres to one Magero, and that he currently occupies about 1.6 acres where his son resides. He further testified that the Respondent had allocated him approximately 3½ acres from his late father’s land and referred the Court to paragraph 9 of the Replying Affidavit, arguing that the Respondent had admitted giving him the land. 12. The Applicant called **QUINTO ODUOR OKUMU (PW2)**, his elder brother, who adopted his witness statement dated 13th January 2025. He testified that the Respondent, their uncle, gave the Applicant the disputed land in 1978, where the Applicant settled with his family and has occupied it peacefully ever since. He stated that the Applicant had extensively developed and cultivated the land and that neighbours knew the land belonged to him. 13. He further testified that under their customary practice, once land is given by a father or elder to a son, it becomes the son’s property without the necessity of a written agreement. In cross-examination, he stated that although he had recorded the transaction in a notebook, the notebook was destroyed in a house fire. 14. The Applicant also called **JOSEPH OWUOR OUMA (PW3)**, a neighbour to both parties, who likewise adopted his witness statement dated 13th January 2025. He confirmed that the Respondent gave the Applicant the disputed land in 1978, which the Applicant has continuously occupied, cultivated and developed. He testified that the Respondent later declined to transfer the land into the Applicant’s name, prompting the filing of the present suit. During cross-examination, **PW3** acknowledged that he witnessed the allocation of the land and confirmed that no written agreement was executed. 15. The Respondent testified in his defence and adopted his Replying Affidavit as his evidence-in-chief. He reiterated that the Applicant is his nephew, whom he raised after the death of his brother. He stated that he inherited responsibility over the Applicant and his mother and treated the Applicant as one of his own children. 16. He admitted that, upon the Applicant growing up, he allocated him land together with his own children. However, he maintained that the land was only intended for cultivation and occupation as family land and not for sale or transfer. 17. During cross-examination by the Applicant, the Respondent expressly admitted that the land he gave the Applicant is the very land now in dispute. He further testified that the Applicant sold part of the land to one Magero without his knowledge or consent and that he, being the registered proprietor, effected the transfer to Magero. He maintained that he could not transfer the remaining land to the Applicant because the Applicant had breached the purpose for which the land had been allocated, namely cultivation for food production and not for sale. After the close of the defence case, the matter was reserved for judgment. **ANALYSIS AND DETERMINATION** 1. From the pleadings, the evidence on record, and the rival positions taken by the parties, the Court finds that the following issues fall for determination: 2. **Whether the Plaintiff’s occupation of a portion measuring approximately 0.6 hectares out of L.R. No. SAMIA/BUKANGALA B/379 has been open, continuous, exclusive and uninterrupted for a period exceeding twelve years so as to satisfy the requirements of adverse possession.** 3. **Whether the Plaintiff’s occupation of the suit property was adverse to the Defendant’s title or was by virtue of the Defendant’s permission as a gift or family allocation, and if so, whether such permission negates a claim for adverse possession.** 4. **Whether the Plaintiff has proved his claim for adverse possession on a balance of probabilities and is entitled to the declaratory and consequential reliefs sought.** **On whether the Plaintiff’s occupation of a portion measuring approximately 0.6 hectares out of L.R. No. SAMIA/BUKANGALA B/379 has been open, continuous, exclusive and uninterrupted for a period exceeding twelve years so as to satisfy the requirements of adverse possession.** 1. The Plaintiff contends that he has been in occupation of the suit property since 1978, when he settled, cultivated the land, established his home and raised his family. His testimony was corroborated by **PW2, QUINTO ODUOR OKUMU**, and **PW3, JOSEPH OWUOR OUMA**, both of whom stated that the Plaintiff has occupied the land peacefully since 1978 without interruption. The Plaintiff further testified that his occupation continued until the Defendant demanded the land back in 2021, prompting the filing of the present suit in 2023. 2. The Defendant does not dispute that the Plaintiff has been on the land since 1978. Indeed, he expressly admitted in both his testimony and cross-examination that he gave the Plaintiff the suit land after the death of the Plaintiff’s father. The Defendant explained that he had taken responsibility for raising the Plaintiff and, out of humanitarian and familial considerations, allowed him to cultivate and settle on the land. He, however, maintained that the Plaintiff was permitted to use the land only for cultivation and residence, and that ownership was never intended to pass to him. According to the Defendant, the Plaintiff exceeded the scope of that permission by selling part of the land to a third party without his consent. 3. While the evidence leaves little doubt that the Plaintiff has occupied the suit property openly and continuously for well over twelve years, mere length of occupation is not sufficient to found a claim for adverse possession. The occupation must also be adverse to the title of the registered proprietor. Possession that is founded on the permission, licence or consent of the owner cannot be adverse for as long as that permission subsists. 4. The Court of Appeal in **Sisto Wambugu -v- Kamau Njuguna (1983) KECA 69 (KLR)** held that: **“The rule on ‘permissive possession’ is that possession** **does not become adverse before the end of the period during which (the possessor) is permitted to occupy the land.”** 1. Adverse possession contemplates occupation that is inconsistent with, and in denial of, the title of the true owner. Where possession is enjoyed with the consent of the proprietor, time does not begin to run until such permission is unequivocally withdrawn and the occupier continues in possession in hostility to the owner’s title. 2. Similarly, in the case of **Wilson Kazungu Katana & 101 others -v- Salim Abdalla Bakshwein & another [2015] KECA 728 (KLR)** provided that: “**So that a claim of adverse possession would not succeed if the entry to the land was with the permission of the owner and remains that way throughout, or before the permission is terminated or if before the expiry of the period, the owner of the land takes steps to assert his title to the land. 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…”** 1. In the present case, the Plaintiff himself admitted that the Defendant, who is his paternal uncle, gave him the land in 1978 after the death of his father. **PW2** and **PW3** equally testified that the Defendant voluntarily allocated the land to the Plaintiff in accordance with family and customary arrangements. 2. The Defendant consistently maintained that the land was given to the Plaintiff on humanitarian grounds as a family member whom he had raised and cared for after his father’s demise. These admissions establish that the Plaintiff’s initial entry onto the land was by the express permission and consent of the Defendant. 3. The Court finds that the Plaintiff’s occupation, though open and long-standing, originated from a permissive family arrangement rather than an assertion of rights hostile to the Defendant’s title. The evidence does not demonstrate the point at which that permissive occupation transformed into adverse possession. On the contrary, the relationship between the parties and the circumstances under which the land was given are consistent with a licence or family permission which remained operative until the Defendant sought to reclaim the land. The Plaintiff’s continued occupation, without more, cannot be construed as adverse merely because it exceeded twelve years. 4. Accordingly, although the Plaintiff has proved long, open and uninterrupted occupation of the suit property since 1978, he has failed to establish that such occupation was adverse to the Defendant’s title for the requisite statutory period. The Court therefore finds that the Plaintiff has not satisfied the first essential ingredient of adverse possession. **On whether the Plaintiff’s occupation of the suit property was adverse to the Defendant’s title or was by virtue of the Defendant’s permission as a gift or family allocation, and if so, whether such permission negates a claim for adverse possession.** 1. The doctrine of adverse possession is founded on the principle that the claimant’s possession must be inconsistent with, and hostile to, the title of the registered proprietor. Where a claimant enters and occupies land with the permission, consent or licence of the owner, such possession is not adverse and cannot found a claim for adverse possession unless it is shown that the permission was unequivocally terminated and the claimant thereafter remained in occupation in a manner hostile to the owner’s title. 2. The law is settled that time for purposes of adverse possession does not run where occupation is by consent of the registered proprietor. In [**Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1983/69/eng%401983-11-14), the Court of Appeal stated: **“Where the claimant is in possession with the leave and licence of the owner in pursuance of a valid agreement, the possession becomes adverse and time begins to run at the time the licence is determined.”** 1. Similarly, in **Samuel Miki Waweru v Jane Njeri Richu, Civil Appeal No. 122 of 2001 [2007] eKLR**, the Court of Appeal emphatically held: **“It is trite law that a claim for adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner.”** 1. In the present case, the Plaintiff’s own evidence establishes that his entry onto the suit property was not as a trespasser but with the express permission of the Defendant. He testified that after the death of his father, the Defendant, who is his paternal uncle and had raised him from childhood, gave him the suit land in 1978. He acknowledged during cross-examination that the Defendant gave him the land, although he maintained that it was intended to belong to him permanently. 2. The Plaintiff’s evidence was reinforced by **PW2**, **QUINTO ODUOR OKUMU,** who testified that the Defendant gave the Plaintiff the land in 1978 and that, in accordance with local custom, once a father allocates land to his son, there is no requirement that the transaction be reduced into writing. **PW3** similarly stated that the Defendant gave the Plaintiff the land in 1978 and that the dispute only arose when the Defendant declined to have the land transferred into the Plaintiff’s name. 3. The Defendant did not dispute allocating the land to the Plaintiff. On the contrary, he candidly admitted that he gave the Plaintiff the land because he had assumed parental responsibility following the death of the Plaintiff’s father. However, he maintained that the allocation was purely humanitarian and familial, intended to enable the Plaintiff to cultivate crops and settle thereon, and not to confer ownership. He further testified that the Plaintiff breached the terms of that permission by selling a portion of the land to a third party without his knowledge or consent. 4. The foregoing evidence leaves no doubt that the Plaintiff’s possession originated from the Defendant’s permission. The close relationship between the parties as uncle and nephew, coupled with the Defendant’s role as the Plaintiff’s guardian, demonstrates that the occupation arose from a family arrangement rather than an assertion of ownership adverse to the Defendant’s title. 5. In applying those principles to the facts of this case, the Court finds that the Plaintiff has not demonstrated when, if at all, his permissive occupation ceased and became adverse. His occupation from 1978 was admittedly founded upon the Defendant’s permission. There is no evidence that the Plaintiff expressly repudiated the Defendant’s title or that the Defendant’s permission was withdrawn long enough before the institution of this suit to satisfy the statutory period under **Sections 7, 13** and **38** of the **Limitation of Actions Act**. 6. Indeed, the Defendant’s evidence that he demanded the return of the land in 2021 indicates that the dispute arose from the breakdown of the family arrangement rather than from any long-standing hostile occupation by the Plaintiff. The Plaintiff cannot rely on the very permission that enabled him to occupy the land as the basis for extinguishing the Defendant’s title. 7. The Court therefore finds that the Plaintiff’s occupation was permissive, having arisen from a gift or family allocation made on humanitarian grounds by the Defendant, who stood in *loco parentis* to him. Such occupation lacked the hostility necessary to sustain a claim for adverse possession. Consequently, the Plaintiff has failed to prove that his possession was adverse to the Defendant’s title as required by law. **On whether the Plaintiff has proved his claim for adverse possession on a balance of probabilities and is entitled to the reliefs sought.** 1. The burden of proving a claim for adverse possession rests upon the person asserting it. In terms of **Sections 107** and **109** of the **Evidence Act**, the Plaintiff was required to establish, on a balance of probabilities, that his possession of the suit property was actual, open, exclusive, continuous, uninterrupted and, most importantly, adverse to the title of the registered proprietor for a period of at least twelve (12) years. 2. Although the Plaintiff has demonstrated that he has occupied the disputed portion since 1978, the evidence on record overwhelmingly shows that his entry and continued occupation of the land were by virtue of the Defendant’s permission. The Plaintiff himself admitted that the Defendant allocated him the land after the death of his father, while both **PW2** and **PW3** confirmed that the land was given to him by the Defendant. The Defendant equally admitted granting the Plaintiff possession of the land, explaining that the allocation was made out of humanitarian considerations as he had assumed parental responsibility over the Plaintiff. 3. The Court has already found that possession founded on the consent or permission of the registered proprietor cannot amount to adverse possession unless it is shown that such permission was terminated and the claimant thereafter remained in occupation in a manner hostile to the proprietor’s title for the statutory period. No such evidence was tendered before this Court. 4. The Plaintiff’s contention that he sold part of the land to a third party without the Defendant’s consent does not alter this finding. At best, that conduct may have constituted a breach of the conditions upon which the Defendant allowed him to occupy the land. It did not, without more, convert his permissive occupation into adverse possession capable of extinguishing the Defendant’s title under the Limitation of Actions Act. 5. In [**Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] KECA 161 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2004/161/eng%402004-03-12) the Court of Appeal stated: **“In order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of twelve years either after dispossessing the owner or by the discontinuance of possession by the owner on his own volition.”** 1. The Plaintiff has not proved that he dispossessed the Defendant of the suit property or that the Defendant discontinued possession of his own volition. Rather, the evidence demonstrates that the Defendant voluntarily permitted the Plaintiff to occupy the land because of their close family relationship. Such occupation cannot be construed as dispossession of the registered proprietor. 2. The Court therefore finds that the Plaintiff has failed to discharge the burden of proving the essential ingredients of adverse possession on a balance of probabilities. Consequently, he is not entitled to the declarations sought, an order directing the transfer of the suit property into his name, or the permanent injunction sought against the Defendant. **DECLARATION** 1. The upshot is that this Court finds that the Plaintiff’s Originating Summons dated 16th November 2023 is devoid of merit and is hereby dismissed. 2. On the issue of costs, **Section 27** of the **Civil Procedure Act** provides that costs follow the event unless the Court, for a good reason, orders otherwise. The Respondent has successfully defended the claim by the Plaintiff, and no sufficient reasons have been advanced to warrant a departure from the general rule. Accordingly, the costs of this suit are hereby awarded to the Respondent/Defendant. **Judgment dated, signed and delivered in open Court on this 30th day of July 2026.** **Right of Appeal.** **C. MUGAMBI** **JUDGE** **30TH JULY 2026**