https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3367

Owuor v Honey Suckle Gardens Limited (Enviromental and Land Originating Summons E076 of 2024) [2026] KEELC 3367 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEELC 3367 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Enviromental and Land Originating Summons E076 of 2024 CG Mbogo, J June 4, 2026 Between Pauline Akinyi Owuor Applicant and Honey Suckle Gardens Limited Respondent Judgment 1.The applicant filed the originating summons dated 25th November, 2024 expressed to be brought under Articles 23, 40, 43(1)(b) of the Constitution of Kenya, Sections 7,17,37 and 38 of the Limitations of Actions Act, Order 37 Rule 7, Order 5 Rule 17 and Order 40 Rules 1 and 2 of the Civil Procedure Rules seeking the following orders:-1.That a declaration do issue that the applicant has acquired title to land and ownership of all that piece of land known as parcel number Nairobi/Block 153/420 together with the maisonette constructed on the said land parcel by virtue of adverse possession.2.That the said applicant be registered as the sole proprietor of the said property and the developments thereon in place of the above named respondent in whose favour the parcel of land is currently registered.3.That an order of permanent injunction be issued restraining the respondent, its agents, servants and representatives from interfering with parcel number Nairobi/ Block 153/420 in whatsoever manner.4.That costs of and incidental to this application be provided for.5.That this honourable court grants any other relief it deems fit. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of the applicant sworn on even date. The applicant deposed that together with the respondent, they entered into a sale agreement dated 22nd June, 2007 for the sale and purchase of Nairobi/Block 153/420, the suit property for a sum of Kshs.4,900,000/-. She deposed that she completed payment of the purchase price on 2nd April, 2008 and thereafter took possession of the same. That despite paying the full purchase price, the whereabouts of the directors of the respondent are unknown to enable them effect the said transfer. 3.The applicant deposed that she has been in peaceful occupation of the suit property for 16 years since the year 2008 and that she has enjoyed quiet possession together with her family. The applicant desposed that since then she has asserted her rights over the property and her possession became non permissive on final payment of the purchase price on 2nd April, 2008. For this reason, the respondent holds the title in her trust since the same extinguished in 2019 after the expiry of twelve years. 4.The applicant’s case proceeded as an undefended suit on 11th December, 2025. Pauline Akinyi Owuor (PW1) adopted her supporting affidavit sworn on 25th November, 2024 as her evidence in chief. She stated that she resides in house no. 32 Honey Suckle Garden in Embakasi. She produced P. Exhibits nos. 1 to 7 respectively listed in the bundle of documents dated 17th July, 2025. PW1 informed the court that she paid Kshs.4,900,000/= as the purchase price and that the last payment was made on 2nd April, 2008. Since then and for the last 17 years, she has resided in the same property and has never been evicted. She reiterated that she purchased the suit property from Banji Patel. With her testimony, the applicant rested her case. 5.This court directed the applicant to file written submissions. By the time of writing this judgment, the applicant had not filed her submissions. Be that as it may, and having considered the pleadings, the evidence on record and the testimony by PW1, the issue for determination is whether the applicant’s rights over the suit property have crystallized by virtue of adverse possession. 6.The doctrine of adverse possession lies in Section 7 of the Limitation of Actions Act which 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.” 7.Section 13 of the Act stipulates that:-“(1)A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.(2)Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land.(3)For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3), the land in reversion is taken to be adverse possession of the land.” 8.In the case of Lewa v Mwagandi [2015] KECA 532 (KLR), the Court of Appeal defined adverse possession as follows:-“Adverse possession is essentially a situation where a person takes possession of land and asserts 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 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.” 9.In proving a claim of adverse possession, there are numerous decisions by the courts on the same. The Court of Appeal at Kisumu Civ App. No. 110 of 2016 Richard Wefwafwa Songoi versus Ben Munyifwa Songoi [2020] eKLR was of the view that a person claiming adverse possession must establish the following:-a.On what date he came into possession.b.What was the nature of his possession?c.Whether the fact of his possession was known to the other party.d.For how long his possession has continued ande.That the possession was open and undisturbed for the requisite 12 years. 10.To answer the above questions, the entry into the suit property was by an agreement of sale entered into 22nd June, 2007. The applicant paid the purchase price in instalments through cheques and the last payment was made on 2nd April, 2008. Since payment of the last purchase and from the testimony of PW1, she took possession of the suit property and has been residing thereon since then together with her family. 11.In the case of Mbui v Maranya [1993] KEHC 161 (KLR), it was held that:-“Where adverse possession arose out of a sale of agreement under which the payment of the purchase price by the adverse possessor was by installments, and the agreement fails, the period of limitation affords an action for adverse possession only after the last and final payment has been made to complete the agreed purchase price. The period of limitation starts to run on the date of the payment of the last installment of the purchase price (Todd, J, in Wanyoike v Kahiri [1979] Kenya L R 236 at 239; also see among others, Simpson J (as he then was), in Hosea v Njiru and others [1974] E A 526 at 529, 530).” 12.The testimony of PW1 is uncontroverted and for this reason, the court is not in doubt as to her occupation, use and enjoyment of the suit property since 2nd April, 2008 being the date of the last payment. From the date when the applicant took possession to the date of filing this suit, the applicant has been in open, continuous and uninterrupted use of the suit property for a period of 16 years. Her rights to claim the suit property by virtue of adverse possession have since crystallized. 13.From the above, I find merit in the originating summons dated 25th November, 2024 and I grant the following orders:-i.A declaration is hereby issued that the applicant has acquired title to land and ownership of all that piece of land known as parcel number Nairobi/Block 153/420 together with the maisonette constructed on the said land parcel by virtue of adverse possession.ii.The Land Registrar is hereby directed to register the applicant as the sole proprietor of Nairobi/Block 153/420.iii.An order of permanent injunction be issued restraining the respondent, its agents, servants and representatives from interfering with parcel number Nairobi/ Block 153/420 in whatsoever manner.iv.I make no orders as to costs.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 4TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE04/06/2026.In the presence of:Ms. Vena Atieno - Court assistantMr. Mugambi holding brief for Ms. Odira for the Applicant