https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4475

Opetu & 2 others v Komwonyo & another (Enviromental and Land Originating Summons E011 of 2021) [2026] KEELC 4475 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEELC 4475 (KLR) Republic of Kenya In the Environment and Land Court at Busia Enviromental and Land Originating Summons E011 of 2021 L Waithaka, J July 8, 2026 Between William Laurence Opetu 1st Plaintiff Ernest Oyingo Ogola (Suing as Personal Representative of Francis Ogola Awade) 2nd Plaintiff Grace Were Odongo 3rd Plaintiff and Fredy Meshack Pondo Komwonyo 1st Defendant Lawrence Musibi Makanda 2nd Defendant Judgment Background 1.Vide an Originating Summons dated 16th September, 2021 and amended on 16th June 2022, the plaintiffs instituted this suit for determination of eleven questions listed thereat. In particular, the plaintiffs’ claim that the defendants’ title to the parcels of land known as L.R NOS. Mariachi/Elukhari/2244 and Mariachi/Elukhari/2245 (hereinafter referred to as the suit properties) have become extinguished by their adverse possession thereof and that the defendants hold the suit properties in trust for them. The plaintiffs also seek an order of permanent injunction to restrain the defendants, their relatives, agents, employees, surveyors, any government official or other person acting on their behalf without an order of Court, from interfering with their smooth possession of the suit properties. 2.It is common ground that the suit properties are registered in the name of the defendants having been so registered on 27th June 1995. It is also common ground that the suit properties are a subdivision of the parcel of land known as L.R NO. Mariachi/Elukhari/204 which belonged to the 1st and the 2nd plaintiffs’ parents (fathers)-Odongo Owade alias Odongo Owade Odongo and Francis Ogola Owade (now deceased). 3.The 1st and 2nd plaintiffs claim that as at the time of filing the instant suit (2021), they had been in use and occupation of the suit properties for more than 21 years; that their possession, use and occupation of the suit properties had been open and peaceful. 4.The 1st defendant filed a response to the suit, replying affidavit, he swore on 16th February 2022 in which he inter alia depones that he has stayed, occupied and utilized the parcel of land known as L.R NO. Mariachi/Elukhari/2244 without any interruption since 1995 when he bought it from the 1st and the 2nd plaintiffs’ parents. 5.The 2nd defendant filed a response to the suit, replying affidavit he swore on 15th December 2021, in which he inter alia depones that his co-defendant and he are in total occupation and utilization of every portion of the suit properties. 6.When the suit came up for directions, the Originating Summons were converted to a plaint and the responses filed in respect thereof to statements of defence. Parties were directed to comply with Order 11 of the Civil Procedure Rules and upon compliance, the suit was fixed for hearing by way of viva voce evidence. Hearing And Evidence Plaintiff’s case 7.The 1st plaintiff, William Lawrence Opetu who testified as PW 1, informed the court that he has lived in the land in dispute since he was born. He acknowledged that in 1995, he filed a suit in court against his father claiming land parcel number 2241, 2242 and 2243. He also acknowledged that he had no claim against 2244 and 2245 (the suit properties). 8.As to whether the defendants live in any of the subdivisions of 204, namely 2241, 2242, 2243, 2244 and 2245 he stated that they do not. 9.According to PW1, there is a house in the suit property (2245) constructed by the 2nd defendant. 10.PW1 informed the court that he had a dispute with the 2nd defendant over ownership of the suit property in 2002 only. 11.The 2nd plaintiff, Ernest Oyingo Ogola who testified as PW2, informed the court that there had been a dispute between their deceased parents (father of the 1st plaintiff and his father) over ownership of land parcel 204 from which the suit properties were created and the dispute spilled over to them. Unlike PW1 who claimed that he shares the suit properties with him in equal parts, PW2 stated that he is not in occupation of either of the suit properties, 2244 and 2245. 12.PW2 told the court that he lives in parcel number 2241, while PW1 lives in parcel number 2243. According to PW2, it is the 1st plaintiff’s mother and child who live in the suit properties (2244 and 2245). In that regard, see the following excerpts of the evidence of PW2, on cross examination:“I live on parcel No. Marachi/Elukhari/2241. I do not live on the parcel number Marachi/Elukhari/2244 or 2245. The Plaintiff lives on land parcel No. Marachi/Elukhari/2243. It is the 1st plaintiff’s mother and child who live on the parcels No. Malachi/Elukhari/2244 or 2245.” 13.PW2 acknowledged/admitted that the 2nd defendant lives in the parcel of land known as Malachi/Elukhari/2245. In that regard, see his testimony on further cross examination by Mr. Mogi, which at the relevant part is as follows: -“The 2nd defendant is my neighbor. His house is about 100m from mine. It is true that the 2nd defendant lost a child in 2021. He buried the child on land parcel number Marachi/Elukhari/2245. The grave was some 30m from the 2nd defendant’s house….” 14.Concerning his relationship with the defendants PW2 stated as follows: -“I live with the defendants both peacefully and at times we quarrel. In 2002, the 2nd defendant quarreled with the 1st plaintiff over the land. That was the only time I witnessed a quarrel between the two. In 2021, the 2nd defendant cut our trees to use in a funeral and also in building.” 15.Helda Naswa Simiyu, who testified as P.W3, informed the court that she does not live in the same parcel of land as PW1 and that the parcel of land she lives in and the parcel of land PW1 lives in are demarcated. She could neither tell the number of the parcel of land she lives in nor its acreage. 16.PW3 acknowledged and/or admitted that the 2nd defendant had been cultivating millet on the land he bought and that he buried his two children thereon. PW3 further acknowledged and/or admitted that there was a dispute between the 1st plaintiff and the 2nd defendant over the land which Odongo Owade sold to the 2nd defendant. (Evidence is of no probative value as it does not identify the parcel of land and/or its acreage). 17.Margaret Aoko Ogolla, who testified as PW4, could not tell the parcel of land she lives on. She informed the court that the plaintiffs and the 2nd defendant had been quarreling over land; that the plaintiffs’ land and the defendants’ land is separated by a boundary and that the 2nd defendant buried his child within his compound in the suit property (2245). PW4 corroborated PW3’s evidence concerning the use of the suit property by the 2nd defendant by stating that the 2nd defendant had been planting millet in the suit property. 18.Michael Otsieno Oduor, who testified as PW5, informed the court that the plaintiffs and the defendants have had a dispute over the land for a long period of time. On use of the land, PW5 stated that he had seen the 2nd defendant utilizing the land (farming on it). Defendants case 19.DW1, Fredrick Opondo Komwonyo alias Fred, relied on his replying affidavit sworn on 16th February 2022 and further affidavit sworn on 19th June 2023 after they were adopted as his evidence in chief. He produced the documents listed in his list of documents dated 3rd October 2022 as Dexbt 1 to 6. These are; copy of title deed for Marachi/Elukhari/2244-Dexbt 1; certified copy of register for parcel Marachi/Elukhari/2241, 2242, 2243, 2244 and 2245 respectively as Dexbt 2(a) to (2)(e); Copy of mutation form dated 22rd March 1995 as Dexbt 3; Application to Land Control Board as Dexbt 4; Letter of Consent as Dexbt 5 and Transfer form as Dexbt 6. 20.DW1 informed the court that he bought his parcel of land from Odogo Awade; that his parcel 2244, is a subdivision of land parcel number 204 and that after he bought his parcel, he took possession of it and had been tilling it through the 2nd respondent without interruption from the plaintiffs. 21.DW1 admitted and/or acknowledged that the plaintiffs interfered with the boundary to his parcel but he is aware where the boundary is. He denied the plaintiffs’ claim that they have been in use and occupation of his portion and stated that there is no structure on his parcel of land. 22.In cross examination, DW1 stated that in 1995, when he bought his parcel, the plaintiffs’ family was utilizing the land; that he was not served with the suit papers filed in 1995 stopping the sale of the land and that he did not report to the police or file a case in court when the plaintiffs’ destroyed the boundary to the suit property. 23.In re-examination, DW1 stated that after the plaintiffs destroyed the boundaries, they did not move in to till the land. He asserted that he was never served with any order in respect of the case filed in 1995. 24.DW2 Lawrence Musibi Mukanda, relied on his replying affidavit sworn on 23rd November 2021, his further affidavit sworn on 8th May 2023 and his witness statement recorded and signed on 9th May 2023 after they were adopted as his evidence in chief. He produced the documents listed in his list of documents filed on 9th May 2023 as Dexbt 1 to 4. These are; Certificate of Death of Jane Oduory as 2nd defendant’s exhibit 1; 4 photographs marked as 2nd defendants exhibit 2(a) to 2(d); medical examination report dated 14th June 2012 as 2nd defendant’s Dexbt 3 and report by KFS as 2nd defendant’s exhibit 4. 25.DW2 informed the court that the plaintiffs are his neighbours and relatives; that he bought his parcel of land, Marachi/Elukhari/2245 from the plaintiffs’ father and that the plaintiffs live on parcels number 2241, 2242 and 2243. 26.DW2 further informed the court that he lives in parcel number 2245; that he has buried his three children therein and that he has been in use and possession of his portion of land since 1995 when he purchased it. 27.On whether he has enjoyed peaceful use and possession of the land, DW2 informed the court that he has not, because the plaintiffs kept interfering with his peaceful possession and cutting down his trees. 28.In cross examination, DW2 informed the court that he knows DW1; that DW1 is his nephew and neighbor; that they both purchased land from the plaintiffs’ father and that he is the one who has been tilling DW1’s parcel of land, 2244. 29.DW2 informed the court that the plaintiffs have attacked him severally and even burnt his house but he has never stopped tilling parcel number 2244. 30.In cross examination, DW2 admitted that the plaintiffs were living on the family land but stated that he was not served with any court order in 1995 stopping him from occupying his land. The 2nd defendant also acknowledged that the plaintiffs removed him from the suit property but stated that he returned. He asserted that he buried three of his children in the suit property. 31.In re-examination, DW2 started that the plaintiffs’ family lived in parcel number 204 before they bought their respective portions of the land; that the plaintiffs sued him and their father in 1995 but maintained that he was not served with any court order stopping him from utilizing parcel number 2245. 32.DW3, Mary Otubula Musibi, relied on her witness statement recorded and signed on 9th May 2023 after it was adopted as her evidence in chief. She informed the Court that she is the wife of the 2nd defendant (DW2); that they had been living in the suit property since 1987(2245), way before they got registered as proprietors; that their use and occupation of the suit properties has not been peaceful as there was a lot of interference from the plaintiffs. 33.In cross examination, DW3 started that parcel number 2244 belongs to the 1st defendant and that they are the ones who have been utilizing it with the permission of the 1st defendant. 34.In further cross examination, DW3 inter alia stated that their step daughter died in 2011 and they buried her on the suit property. DW3 further informed the Court that in 2022, the 1st plaintiff assaulted them and stopped them from tilling the land. 35.At close of hearing, parties filed submissions which I have read and considered. Analysis and determination 36.The issue arising from the pleadings filed in this case, the evidence adduced in respect thereof and the submissions, is whether the plaintiffs have made up a case for being declared to have acquired interest in land parcels number 2244 and 2245 on account of having been in adverse possession thereof. 37.Concerning that issue, the plaintiffs through their joint submissions dated 8th March 2026, contend/submit that they have made up a case for being declared to have become entitled to the suit properties on account of having been in adverse possession thereof. The plaintiffs/applicants have given their reasons as follows: -i.They resisted buying of the suit properties by the defendants;ii.At the time the defendants bought the suit properties, they were in use and possession of the suit properties;iii.The defendants have not demonstrated that they ever took possession of the suit properties and/dispossessed them of their use and occupation of the suit properties and/or sued them for recovery of the suit properties from them.iv.The plaintiffs acknowledge that the 2nd defendant buried his relatives on the suit property (2245) but contend that at the time he did so, his interest in the suit property had become extinguished by their adverse possession thereof. 38.In his submissions dated 19th March 2026, the 1st defendant inter alia submits that occupation of the suit properties by the plaintiffs, if any, was neither exclusive nor peaceful. In that regard, the 1st defendant points out that the plaintiffs, in their evidence admitted that the 2nd defendant has a structure in the suit property and buried his relatives therein. The 1st defendant has also pointed out that the plaintiffs, in their evidence, admitted that there were disputes between them and the 2nd defendant over the use and occupation of the suit property. Their witnesses, particularly DW3, also led evidence to the effect that there were disputes between the plaintiffs and the 2nd defendant over the use and occupation of the suit property. 39.The 1st respondent further submits that there is neither a clear starting period of the alleged adverse possession of the suit properties nor is there proof of an identifiable portion of the suit properties which the plaintiffs are in possession thereof. 40.Arising from the foregoing, the 1st defendant urges this court to find that the plaintiffs have not proved their case on a balance of probabilities and dismiss it with costs to him. 41.In his submissions dated 18th March 2026, the 2nd defendant has given an overview of the case urged/presented by the plaintiffs and the law applicable to a claim for adverse possession as espoused in several decided cases and concerning the instant case submitted or addressed the Court as follows: -“…. It is clear from those principles that the onus lies on the person claiming title by adverse possession to prove the essential elements before an order is granted in his or her favour.” 42.According to the 2nd defendant/respondent, the plaintiffs’ entire claim against the defendants should fail for the following reasons: -i.The plaintiffs/applicants and their witnesses materially contradicted themselves in their evidence regarding the issue of occupation, possession and use the suit properties;ii.The evidence adduced shows that the 2nd defendant has used his parcel of land 2245, in a manner inconsistent with the plaintiffs’ claim of exclusive use and possession of the suit property, which use includes interring his relatives in one of the suit properties, 2245.iii.The plaintiff’s alleged use and occupation was not peaceful as there are reported cases of violence between the plaintiffs and the 2nd defendant concerning his use of the suit properties. 43.Terming the plaintiffs’/applicants’ suit misguided and misconceived, the 2nd defendant urges this Court to dismiss it with costs. 44.In a rejoinder, the plaintiffs/applicants filed supplementary submissions dated 23rd March 2026 in which they submit/contend that they have proved that the defendants had not lived on the suit properties or built anything thereon; that they had prevented the defendants taking possession of the suit properties and fencing them and that because there is evidence that they removed the defendants from the suit properties, the burden is on the defendants to prove that they regained access to the suit properties, and if they did, when they regained possession. 45.The plaintiffs’ deny the defendants’ claim or contention that they cannot maintain their claim for adverse possession on the ground that their occupation of the suit properties, if any, was not peaceful (was hostile) and submit that the alleged hostility could not have prevented the defendants from moving to court to recover possession of the suit properties. The plaintiffs/applicants assert that their use and possession of the suit properties was not by force or violence as claimed by the defendants. Analysis and determination 46.I have read, reviewed and analyzed the plaintiffs’ case, the response thereto, the evidence adduced by the parties and the submissions filed in respect thereof. 47.The sole issue arising from the pleadings filed in the instant suit, the evidence adduced by the parties and the submissions, is whether the plaintiffs’ have made up a case for being granted the orders sought; otherwise put, whether the plaintiffs’ have proved their pleaded case on a balance of probabilities. 48.Concerning their entitlement to the suit properties, L.R Nos. Marachi/Elukhari/2244 and 2245, the 1st plaintiff/applicant, in the affidavit he swore in support of the originating summons, deponed as follows:“ 2.In this matter I am suing on my own as the person in possession of the upper part of the suit land and the 2nd plaintiff is suing on his own and as personal representative of his late father Francis Ogola Owade whose estate is in possession of the lower part of the suit land. 3………………. 15.That Francis Ogola Owade who had three wives in that year of 1995 moved the home of his younger wife Helda Naswa Simiyu and build it specifically overlapping on two parcels of land No. Marachi/Elukhari/2244 and Marachi/Elukhari/2245 on its lower part and in 2001 I moved the home of my step mother Grace Were Odongo and built it overlapping the said two parcels of land on the upper part of those lands. 16…. 18.That since then, Francis Ogola Owade remained in possession of one half of L.R No. Marachi/Elukhari/2244 and Marachi/Elukhari/2245 on the lower part and myself remained in possession of another half of the said parcels of land on the upper part cultivating the same peacefully without interruption planting maize, cassava, potatoes and trees as our own land to the exclusion of the defendants for more than 21 years now. 19.That we openly and peacefully denied the defendants access to their parcels No. Marachi/Elukhari/2244 and Marachi/Elukhari/2245… 20.That on or about 11/5/2002 the 2nd defendant and the 1st plaintiff disputed over land No. 2245 and the 2nd defendant assaulted the 1st plaintiff of which the 2nd defendant was arrested and charged tried in Busia PMC Criminal Case No.853 of 2002 in which he was convicted… 21.That after the said conviction the defendants have not at any time entered on to the suit land until the suit herein was filed. 22.That since the said conviction against the 2nd defendant, the plaintiffs occupied the suit land cultivating the same planting maize, cassava, potatoes…. 23.That the defendants have not brought any suit in court to recover the suit land from the plaintiffs up to date. 24.That in the end of the year 2021 after this suit had been filed the 2nd defendant’s daughter…died and the 2nd defendant without our consent buried her in the suit land No. Marachi/Elukhari/2245. 25.We have acquired L.R No. Marachi/Elukhari/2244 and Marachi/Elukhari/2244 against the defendants and they hold their titles in trust for us. 26.That we pray that we be registered as proprietors of land parcels No. Marachi/Elukhari/2244 and Marachi/2245 in place of the defendants.” 49.A review of the plaintiffs’ pleaded case shows that both the 1st and the 2nd plaintiff claim to have interests in certain portions of the suit properties, described as upper and lower portions thereof. The interest is said to have been gained in 2001 or thereabout when the defendants moved their family members to portions of the suit properties and began utilizing the said portions without interruption from the defendants for a period of over 21 years. 50.By dint of the provisions of Section 107 of the Evidence Act, Cap 80 Laws of Kenya, being the ones who desire judgment based on their pleaded case, that is, they are entitled to the suit properties on account of having been in adverse possession thereof or portions thereof, the burden was on the plaintiffs to prove their pleaded case on a balance of probabilities. In that regard, see the said section of the law, which provides as follows:“Whoever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove that those facts exists.” 51.As to whether the plaintiffs’ have discharged the burden imposed on them of proving their pleaded case on a balance of probabilities, a review of the evidence adduced in this case, comprised in the witnesses statements of the 2nd plaintiff, who testified as PW2 and other witnesses who testified in support of the plaintiffs’ pleaded case, does not support the plaintiffs’ pleaded case that they have been in exclusive use and possession of the suit properties having dispossessed the defendants of their interest therein. 52.Whereas, in the affidavit sworn in support of the suit, the 1st plaintiff claims that the lower part of the suit properties is occupied by the 2nd plaintiff, the 2nd plaintiff, who testified as PW2, in cross examination led evidence at variance with the said claim as follows: -“I live on parcel No. Marachi/Elukhari/2241. I do not live on the parcel number Marachi/Elukhari/2244 or 2245. The Plaintiff (read 1st plaintiff) lives on land parcel No. Marachi/Elukhari/2243. It is the 1st plaintiff’s mother and child who live on the parcels No. Malachi/Elukhari/2244 or 2245......The 2nd defendant is my neighbor. His house is about 100m from mine. It is true that the 2nd defendant lost a child in 2021. He buried the child on land parcel number Marachi/Elukhari/2245. The grave was some 30m from the 2nd defendant’s house……I live with the defendants both peacefully and at times we quarrel. In 2002, the 2nd defendant quarreled with the 1st plaintiff over the land. That was the only time I witnessed a quarrel between the two. In 2021, the 2nd defendant cut our trees to use in a funeral and also in building.” 53.The above testimony by the 2nd plaintiff, clearly shows that the pleaded claim that the 2nd plaintiff or his family occupies the lower portion of the suit properties is not true. The evidence of PW 2 as read with the testimonies of the other witnesses who testified in support of the plaintiffs’ pleaded case, particularly PW3, PW4 and PW5, contradicts and negates the plaintiffs’ pleaded case that the plaintiffs had been in exclusive use of the suit properties having dispossessed the defendants in that they acknowledge and admit that the 2nd defendant had been in use and occupation of the suit properties, particularly, the parcel of land known as L.R No. 2245. 54.Whilst the 1st plaintiff in the affidavit he swore in support of the amended originating summons, at paragraph 21 claimed that from the year 2002 or thereabout when the 2nd defendant was convicted until 2021, when the instant suit was filed, the 2nd defendant never entered the suit property, the evidence adduced in this case by none other than the plaintiffs’ own witnesses, shows that the 2nd defendant had been living in the suit property and cultivating thereon. The plaintiffs’ own witnesses confirmed that the 2nd defendant even buried his relatives in the suit property. 55.The claim by the plaintiffs through their submissions, that the defendants were prevented from taking possession of the suit properties and/or were removed from the suit properties by them, is neither supported by the plaintiff’s pleaded case nor borne out by the evidence adduced by the plaintiffs’ in support of their case. 56.By dint of the provisions of Order 2 rule 6(1) of the Civil Procedure Rules 2010, it is not allowable for parties to depart from their pleaded case unless by way of amendment of their pleadings. In that regard, see the said provision of the law which provides as follows: -“No party may in any pleading make any allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit.” 57.In the case of Raila Amollo Odinga & Another vs Independent Electoral & Boundaries Commission & 2 others (2017) e KLR the Supreme Court stated/held: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.” 58.In view of the foregoing, the claim/submission by the plaintiffs that the defendants bought the suit properties when they were in occupation of the suit properties and that they prevented them from taking possession or removed them from the suit properties hence the defendants ought to demonstrate how and when they gained possession of the suit properties cannot aid the plaintiffs as the burden was on them to prove their pleaded case. 59.The evidence by the defendants and their witnesses, shows that the 2nd defendant has also been in use and occupation of L.R No.2244, with the permission of the 1st defendant. 60.Adverse possession was defined by the Court of Appeal in 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 nor under the licence of the owner. The doctrine in Kenya is embodied in section 7 of the Limitation of Actions Act…” 61.There been no evidence adduced by the plaintiffs’ capable of showing that they have been in adverse possession of a defined portion of the suit properties, exclusively and peacefully for a period of over 12 years, I find the plaintiffs’ claim to entitlement of the suit properties on account of having been in adverse possession thereof to be unmaintainable. 62.Consequently, I dismiss the plaintiffs’ suit/ amended Originating Summons dated 16th June 2022 with costs to the defendants/respondents. 63.Orders accordingly. JUDGEMENT DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 8TH DAY OF JULY, 2026 THROUGH MICROSOFT TEAMSL. N. WAITHAKAJUDGEIn the presence of:N/A for the ApplicantsMr Mwebi for the 1st RespondentMr Mogi for the 2nd RespondentCourt Assistant: Bedan