https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4265

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY** **ELC (OS) NO E038 OF 2025** **JEMIMAH ADOYO OWITI …………………………1ST PLAINTIFF** **SILAS OWITI ABOK ……………..………………….2ND PLAINTIFF** **VERSUS** **GRACE ODHIAMBO ODERA ………………………. DEFENDANT** **JUDGEMENT** **BACKGROUND** The plaintiff herein did file the originating summons dated 2/7/2025 seeking for the following orders: 1. A declaration that the defendant’s right to recover the whole title measuring 3.4 Acres L.R WEST KASIPUL/ KODERA KARABACH/ 985 is barred under the Limitation of Actions Act, Cap 22 Laws of Kenya and her title thereto extinguished on the ground that the Plaintiffs herein have openly, peacefully and continuously been in occupation and possession of the aforesaid whole title for a period exceeding 12 years. 2. That there be orders that the plaintiffs be registered as the proprietors of the whole title measuring 3.4 hectares of land parcel number WEST KASIPUL/KODERA KARABACH/985 in place of the defendant. 3. That there be an order restraining the defendant by herself, her agents, servants or by anyone claiming through her from interfering with the plaintiff’s peaceful possession or occupation of the said whole land measuring 3.4 ha in any manner whatsoever and/ or howsoever. 4. Costs of the originating summons. 5. Such further and in other orders as may be made by this Honorable Court as it deems fit and expedient in the circumstances of the case. 6. The application is supported by the supporting affidavit of Jemimah Adoyoh Owiti. 7. The second plaintiff did sign a written authority authorizing representation by the first plaintiff, dated 2/7/2025. 8. Together with the Originating Summons, the plaintiffs filed an extract of title in respect of WEST KASIPUL/KODERA KARABACH/985 and receipt together with the photographs. 9. Summons were issued on 23rd July 2025 and duly served on 4/12/2025. 10. The court did direct further service and upon being satisfied that same was proper, the matter was fixed for formal proof. **SUMMARY OF EVIDENCE** 1. When the matter came up for formal proof the first plaintiff took the witness stand and testified as PW1. 2. She basically adopted the pleadings as plaint and supporting affidavit as her witness statement. 3. She produced the document filed in succession as PEX 1 to PEX 3 4. In the supporting affidavit she states thus; * That she is the widow of the late John Abok Atinda who was the firstborn of the deceased Andericus Abok Atinda and the second defendant is the 14th child. * That her Father-in-Law was the adjudicated and registered owner of WEST KASIPUL/KODERA KARABACH/985. * That she was married to John Owete Abok in 1997. * That the father-in-law established a homestead for her late husband in 1999. * Upon demise of the father-in-law the second plaintiff established his homestead in title land parcel number WEST KASIPUL/KODERA KARABACH/985 * That the said parcel is now registered in the name of the defendant * That the first and second plaintiffs have been in actual possession of the entire 3.4 ha since 1999 and 2010, a duration of over 25 and 15 years respectively, and * That they cultivated, developed and built homes without interference. 1. That the occupation has been continuous without any interruption. * That the defendant started claiming the said parcel on 24th February 2025 when she was summoned by the chief, Kodera South. * That no case has been filed against occupation of the said parcel. * That they have planted various items namely: * Gum trees * Maize * Sugarcane and * built their homes. 1. She seeks for prayer sought in the plaint. 2. The plaintiffs here closed their case and there being no evidence to offer by the defense, the matter was fixed for judgement on the basis of counsel for the plaintiff stating that he had no submissions to tender. **ISSUES FOR DETERMINATION** 1. a**) The threshold for a claim for adverse possession.** 2. **Whether a relative can claim right to own land by virtue of adverse** **possession and whether the plaintiffs have met the threshold.** 1. **What orders should the court make.** 2. The threshold for adverse possession was laid out in the case of Kimani Ruchine & Others v Swift, Rutherford Co Ltd & another [1977] KEHC 30 (KLR) Thus: ***“the plaintiffs have to prove that they have used the land which they claim as of right nec vi, nec clam, nec precario. The possession must be continuous, it must not be broken for any temporary purposes or endeavors to interrupt it or by any, recurrent consideration”.*** 1. In **Mtana Lewa vs Kahindi Ngala Mwagandi 2015 EKLRC**, where the court stated thus ***“Adverse possession is essentially a situation where a person takes possession of land and usurps 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 12 years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession is neither by force or stealth or under the license of the owner. It must be adequate in continuity, in publicity, and in extent to show that the possession is adverse to the title owner”***. 1. In the **Case of Thika Garissa Road Developers Limited (Kiwang’e & 4 Others as duly Elected Officials of Gachagi land committee) representing Residents of Gachagi & 4 Others (Sued as the Chairman** **Secretary and Vice Chairman respectively of Thika Municipality Block 31 Welfare group) 2023 KECA 269 KLR** (this Court held thus: ***“We are satisfied from the evidence on record That, by building structures, farming and even harvesting sand on the suit land property without obtaining permission from the Appellant. The 1st respondent manifested an animus possidendi, a clear mind and intention of dealing with the property as if it was exclusively theirs, and in a manner that was in Conflict with the appellant's rights. The appellant was as such dispossessed of the suit premises by those acts. The 1st respondents’ acts were not by force, nor secretly, and were without permission”.*** 1. In **Titus Mutuku Kasuve Vs Mwaani Investments Limited &** 4 Others 2004 eKLR: The Court held: ***"And in order to be entitled to land by adverse possession the Claimant must prove that he has been in adverse possession of the land openly and as of right and without interruption for a period of 12 years either after dispossessing the Owner or by discontinuation of possession by virtue of his volition (see Wanje v Saikwa (No 2) (1984) KLR 284. A title by adverse possession can be acquired under Limitation of Actions Act for a part of the land and the mere change of ownership of the land occupied by another under adverse possession does not interrupt such person's adverse possession (see Githu v Ndeete 1984 KLR 7761).*** **WHETHER THE PLAINTIFFS HAVE PROVED THEIR CASE**. 1. The evidence by the Plaintiffs is that the suit land initially belonged to the father-in-law. 1. The father-in-law passed away in 2009 and thereafter the 4th Defendant registered himself as the Owner of the parcel. 1. That Since 1999 and 2010, a duration of over 25 and 15 years respectively, the plaintiffs have been in possession of the suit land and have cultivated / developed same without any interruption. 2. Extract of Title Confirms Title number as W. Kasipul / Kodera Karabach / 985 measuring 3.4 Hectares. 3. The land title was initially registered in the name of Abok Atinda, then transferred to Andericus Abok Atinda, AKA Abok Atinda. On 7.10.85 same was transferred to Joseph. Peter Odero then John Orwa Odero as Administrator and Subsequently to Grace Odhiambo Odero on 22.7.2019 4. Though it has not been disclosed who the Defendant is, it would appear she is related to the previous owners Joseph Peter Odero and John Orwa Odero & Others who were registered as Owners. 5. It would also appear that the said Joseph Peter Odero may have purchased same from her father- in- law. 6. The legal position on adverse possession is that the plaintiff must show occupation which must be continuous, open and without any force , of course for a period of 12 years. 7. A Change of Ownership does not in any manner interfere with or render in applicability of the doctrine. 8. To Confirm ownership/ occupation adverse to owner the plaintiffs have produced photographs marked Exhibit 3 (a) to (f) and demonstrated that during the said period no proceedings were instituted against them. 9. The one and only time the Defendant pursued the matter was when the son lodged a Complaint at the Chief’s office. 10. I therefore find that the evidence on record supports the claim for adverse Possession. 1. I find that on the preponderance of evidence; the claim placed before Court meets the threshold for such like disputes. **DISPOSITION** 1. I therefore enter judgment for the plaintiffs in terms of prayer 1, 2 and 3 of the originating summons dated 2nd July,2025 2. I also award costs of the suit to the plaintiffs 3. These are the Orders of the Court. Judgment dated, delivered and signed at Homa Bay via teams’ platform on this day of 9th July, 2026 IN THE PRESENCE: BUNDE J.O ADVOCATE FOR THE PLAINTIFF JUSTICE JOHN WALTER WANYONYI -JUDGE