https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4638

Omuse & another v Obwaku & another (Environment and Land Case 15A of 2019) [2026] KEELC 4638 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEELC 4638 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Case 15A of 2019 L Waithaka, J July 15, 2026 Between Tadeus Omuse 1st Plaintiff Michael Omela 2nd Plaintiff and Sylvester Obwaku 1st Defendant Bonventure Obwaku 2nd Defendant Judgment 1.The facts of this case, as gleaned from the pleadings and the evidence adduced by the parties can be summarized as follows: -a.Sometime in 1980, Tadeus Omuse, the 1st plaintiff/applicant herein, bought a portion of land comprised in L.R SOUTH TESO/APAKOR/209 from the Sylvestor Obwaku, the 1st defendant/respondent herein.b.At the time the 1st plaintiff/applicant and the 1st defendant/respondent entered into the transaction for sale of a portion of the parcel of land known as L.R NO. SOUTH TESO/APAKOR/209, the property was registered in the name of the 1st defendant/respondent’s father, Obwako Adung’o (now deceased), having been registered as the proprietor in 1972. The defendant/respondent’s father, Obwako Adung’o died on 18th July, 1984.c.Upon demise of the 1st defendant’s/respondent’s father, the parcel of land known as LR NO. SOUTH TESO/APAKOR/209 was transmitted to the 1st defendant/respondent. Transmission of the parcel of land known L.R SOUTH TESO/APAKOR/209 to the 1st defendant/respondent happened on 19th January, 1994.d.Later on, the parcel of land known as L.R NO. SOUTH TESO/APAKOR/209 was subdivided into L.R NOS. SOUTH TESO/APAKOR/4797, 4798, 4793 among other parcels of land.e.L.R NO. SOUTH TESO/APAKOR 4797, measuring 0.79 hectares (approximately 2 acres or thereabout) is registered in the name of the 1st plaintiff/applicant, while parcel NOS. SOUTH TESO/APAKOR 4798 and 4793 measuring 0.79 hectares and 4 hectares respectively are registered in the names of 1st and the 2nd defendant/respondent respectively. 2.According to the evidence adduced in this case comprised in the proceedings of the Land Disputes Tribunal, particularly, the proceedings of the Provincial Appeals Tribunal (Pexbt 11), the 1st plaintiff/applicant claimed to have bought from the 1st defendant/respondent a total of 9 acres comprised in LR NO. SOUTH TESO/APAKOR/209. On his part, the 1st defendant/respondent claimed to have sold to the 1st plaintiff/defendant 4 acres comprised in the said parcel of land, LR No. SOUTH TESO/APAKOR 209. 3.Worth noting, for purposes of the current proceedings, is the evidence of the 1st plaintiff/applicant before the Provincial/Appeals Tribunal to the effect that owing to refusal by the 1st defendant/respondent to accept the balance of the purchase price, he did not pay the balance of the purchase price amounting to Kshs. 3,500/-. In that regard, see the testimony of the 1st plaintiff/applicant before the Provincial Appeals Tribunal, which at the relevant part is as follows: -“I bought 9 acres of land in 1980 from Sylvester Obwako and paid him through instalments and I had 3500/- balance to complete but Appellant, Sylvester has refused to take it”. 4.The evidence by the 1st plaintiff/applicant to the effect that he paid for the portion he bought by instalments and that he was prevented by the 1st defendant/respondent from completing payment, has a legal impact on his claim for adverse possession in that time for purposes of adverse possession does not start to run where the claim is based on alleged sale of land until the purchase price is paid in full. In that regard, see the case of Muchiri & another v Kimani (Environment & Land Case 795 of 2017) KEELC 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 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 becomes adverse and time begins to run at the time the license is determined.” 5.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.” 6.There being evidence that the 1st plaintiff/applicant was prevented by the 1st defendant/respondent from paying the purchase price in full, in the absence of any evidence adduced by plaintiff/applicant capable of showing that he paid the purchase price in full, his claim for adverse possession of 7 acres comprised in the parcels of land known as L.R NOS. SOUTH TESO/APAKOR 4793 and 4798 cannot be maintained. 7.Whilst there is evidence that the Land Dispute Tribunal awarded the 1st plaintiff/applicant 9 acres of land comprised in L.R NO. SOUTH TESO/APAKOR 209 pursuant to the sale agreement entered into between him and the 1st defendant/respondent, which award was adopted as an order of the court, that award and the adopted order in respect thereof, cannot afford the plaintiffs/applicants a cause of action, particularly as relates or concerns their claim for adverse possession. In that regard, see the case of Mtana Lewa vs. Kahindi Ngala Mwagandi Civil Appeal No. 56 of 2014 (2015) e KLR thus: -“Adverse possession is essentially a situation where a person takes possession of land and asserts right 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 it 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 or under the licence of the owner. The doctrine in Kenya is embodied in section 7 of the Limitation of Actions Act…” 8.To avail themselves the orders sought, the plaintiffs/applicants needed to prove that their use and possession of the portion of the suit property/properties claimed was indeed adverse to the interest(s) of the registered owner(s). In the circumstances of this case, where time did not begin to run in favour of the plaintiffs/applicants for want of payment of the purchase price in full, at the pain of repeating myself, I reiterate that time for purposes of adverse possession did not begin to run in favour of the plaintiffs/applicants. 9.Having considered the totality of the evidence adduced in this case, it’s the considered view of the court that the right cause of action for the 1st plaintiff/applicant lay in execution of the orders issued in his favour following adoption of the award of the Land Disputes Tribunal as an order of the court. It appears that the 1st plaintiff/applicant slept on his rights leading to that right becoming time barred. 10.The upshot of the foregoing is that the plaintiffs/applicants have not made up a case for being granted the orders sought. Consequently, I dismiss their suit. 11.On costs, being of the view that the circumstances leading to filing of the instant suit were caused by the 1st defendant’s/respondent’s dishonesty concerning the transaction entered between him and the 1st plaintiff/applicant, I order parties to bear their own costs of the suit. 12.Orders accordingly. JUDGEMENT DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 15TH DAY OF JULY, 2026 THROUGH MICROSOFT TEAMS.L. N. WAITHAKAJUDGEIn the presence of;-Mr. Aburili for the plaintiffsN/A the DefendantsCourt Assistant: Bedan