https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3425

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCL(OS) NO: E017 OF 2024** JUDITH ACHIENG OTIENO……………….…… PLAINTIFF/APPLICANT VERSUS JOHN OSIR ODERA……………………… DEFENDANT/RESPONDENT **JUDGEMENT** Introduction Vide the Originating Summons dated 6th August 2024, the Plaintiff/Applicant, who claims to have acquired title to land parcel No. KISUMU/MANYATTA A/231, placed the following questions before court for determination. 1. **Whether the plaintiff has acquired title to, and ownership of, the parcel of land known as Land Reference Number KSM/MANYATTA A/231 (hereinafter referred to as the suit property by way of adverse possession?** 2. **Whether the plaintiff has been in factual possession of the suit property and, with the intention to possess the same, used the said property without force, secrecy or persuasion for a period of over 12 years since 2011?** 3. **Whether the Defendant’s title to the suit property has become extinguished by law and the Defendant holds the title in trust for the plaintiff?** 4. **Whether the Defendant’s title to the suit property should be cancelled for reasons set out in the Plaintiff’s Affidavit annexed hereto and other reasons to be adduced at the hearing of this summons?** 5. **Whether this Honourable Court should compel the Defendant to transfer the suit property to the Plaintiff and/or, in default, direct the Deputy Registrar of the National Land Commission to transfer the suit property to the Plaintiff?** 6. **Whether the Plaintiff/Applicant is entitled to costs of the suit?** The Defendant, who was served by way of substituted service, filed no response to the Originating Summons. He neither attended court nor adduced evidence. So, the suit proceeded ex parte. The evidence The Plaintiff testified as PW1; he adopted the contents of his witness statement dated 26/2/2025 as his evidence. He produced a certificate of official search, a copy of the green card, and the Chief’s letter dated 21/2/2025 as exhibits. The green card shows that the land was registered in the name of John Osir Odera, the Defendant herein, on 23.11.1995, and that a title deed was issued to him on 4.12.1995. The plaintiff had stated in his witness statement that he moved onto the suit land in the year 2011 and took actual possession and that she had lived on the land for more than 12 years and had developed it extensively. That the Defendant, who is the registered owner, has never disputed the Plaintiff's stay on the land. That she had lived on the land openly, peacefully, continuously and without any interruption from the Defendant for over 12 years. That the Defendant has never occupied or utilized the suit land for the entire period that the Plaintiff has been in occupation. On being questioned by the court, PW1 stated that he did not know whether the Defendant was alive or dead because the last time she saw him was in the year 2011. Submissions It was submitted on behalf of the Plaintiff vide the written submissions dated 23/2/2026 filed by O & M Law LLP that since the Defendant, registered owner, visited the suit land once in the year 2011 and found the plaintiff there on and since then was never bothered to chase her out or take a step to evict her, it follows that the Defendant registered owner was aware of possession and occupation of the land by the plaintiff. That the area chief indicated through his letter that the plaintiff has been in open occupation of the land since 2011. Relying on Section 38 of the Limitation of Actions act and the case of *Titus Mutuku Kasuvi vs Mwaani Investment Limited & 4 others (2004) eKLR,* Counsel submitted that a person who has been in occupation of land for a period exceeding twelve (12) years without force, openly continuously and uninterrupted is entitled to move the court to declare him as having obtained title to the land by averse possession. Counsel also relied on *Samuel Kihamba vs Mary Mbabi (2015) eKLR and Eambugu vs Njuguna (1983) eKLR* to support the submission. Counsel urged the court to allow the claim. Analysis and determination I have considered the Originating Summons, Supporting Affidavit, the evidence adduced and the submissions by Counsel. The Plaintiff’s claim is based on the doctrine of adverse possession, which is a doctrine of law by which a person obtains legal title to land by reason of actual, open and continuous occupation of it to the exclusion of the registered owner for a prescribed period. In Kenya, the prescribed period is 12 years. The doctrine is anchored on Section 7, 13 and 38 of the Limitation of Actions Act. Section 7 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.” The doctrine has been explained in case law, for instance in the case of *Mtana Lewa –vs- Kahindi Ngala Mwagandi [2015] e KLR,* the Court of Appeal explained that: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force nor stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” The evidence placed before Court by the plaintiff to support her assertion that she has had occupation of the suit land for a period of over 12 years is a letter signed by one Charles Juma and bearing the stamp of the Assistant Chief’s office, Migosi Sub-location. The writer of the letter was not called as a witness. The letter stated in part that: - “It is within the knowledge of this office that Mrs. Judy Achieng has been residing in Migosi since 2011. She moved into an abandoned house in plot number KISUMU/MANYATTA A/231, and since then she has lived peacefully without any reports against her stay in the property. Before her moving in, the house remained unattended with no claim of ownership.” Although the Plaintiff, at the prompting of the court, stated that she saw the Defendant once in the year 2011, and that she did not know whether he was still alive or dead, she never indicated in her witness statement or testimony in court where she saw the Defendant and whether the Defendant was aware of her occupation of the land. In a claim of adverse possession, knowledge of the registered owner of the adverse possession is key. See the case of *Munyaka Kuna Company Limited -Vs- Bernado Vicezo De Masi (The Administrator of the Estate of Domenico De Masi (Deceased) (2018) eKLR,* where it was observed that “to establish adverse possession, a litigant must prove that he has both the factual possession of the land and the requisite intention to possess the land (*animus possidendi*). Secondly, one must prove that he has used the suit land without force, without secrecy, and without persuasion (*nec vi nec clam nec precario)*, for the prescribed limitation period of twelve years. Third, he must demonstrate that the registered owner had knowledge (or the actual knowing) that the adverse possessor was in possession of the suit property. Fourth, the possession must be continuous; it must not be broken or interrupted.” In *Benson Mukuna Wachira v Assumption Sisters of Nairobi Registered Trustees [2016] eKLR,* the court held that: “A claim for adverse possession arises where land owned by a person is claimed by a trespasser on the basis that the trespasser, with the knowledge of the owner, has occupied it adversely to the title of the owner continuously for an uninterrupted period of not less than 12 years.” And in*Titus Kigoro Munyi v Peter Mburu Kimani [2015] eKLR,* that in a claim for adverse possession, actual or constructive knowledge of adverse possession must be proved. In the instant case, knowledge of the owner has not been proved. While the plaintiff claimed that she entered the suit land in the year 2011 and has done extensive developments thereon, the letter produced by the Plaintiff as exhibit states that she entered and took possession of a house on the suit land which was hitherto abandoned. The letter did not allude to any extensive developments carried out by the plaintiff on the land. No evidence of the developments was placed before court. The title held by the Defendant is protected by law and can only be cancelled and/or interfered with on grounds provided for by law. In the case of*Dr. Joseph Arap Ngok – Vs - Justice Moijo ole Keiwua & 5 others, Civil Appeal No. Nai. 60 of 1997,*the Court, on sanctity of title, held that: - “Section 23(1) of the then Registration of Titles Act (now reproduced substantially as Sections 25 and 26 of the Land Registration Act set out below) gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact, the Act is meant to give such sanctity of title; otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.” Although adverse possession is recognized in law as one way of acquiring title to land in Kenya and one of the ways that a title holder may lose his/her title, the law requires that there be sufficient evidence of the adverse possession, the knowledge of the registered owner of the possession, the lack of action on the part of the registered owner to assert his/her title and of actual occupation for the duration provided by law. In the present case, I find no evidence of the ingredients of adverse possession. I find that the Plaintiff’s claim has not been proved. There is therefore no basis for the court to make the orders prayed for. The result is that: - 1. **The suit is dismissed.** 2. **No order as to costs, as the suit was not defended.** Orders accordingly. **Judgment dated and signed at Kisumu and delivered virtually this 4th day of June, 2026.** **E. ASATI,** **JUDGE.** **In the presence of:** Atika: Court Assistant Olucheli for the Plaintiff. No appearance for the Defendant.