https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3279

Anyanga v Ayieko & another (Enviromental and Land Originating Summons E073 of 2025) [2026] KEELC 3279 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEELC 3279 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Enviromental and Land Originating Summons E073 of 2025 FO Nyagaka, J May 8, 2026 Between Raphael Jomo Anyanga Applicant and Mark Fitz Ayieko Respondent and Erick Otieno Ogolla Interested Party Judgment 1.The Applicant instituted this suit vide an Originating summons dated 26th September 2025 seeking the following orders;1.The Honourable court be pleased to make a finding and final judgment that the Applicant has acquired whole of Land parcel number Kanyada/Kanyango/Kalanya/4335 containing by measurement 0.71 Ha.2.The Honourable court be pleased to order that the entire land parcel no. Kanyada/Kanyango/Kalanya/4335 currently occupied and cultivated by the Applicant be registered into the names of the Applicant.3.The costs of the Originating Summons be provided in favor of the Applicant. 2.The Summons is premised on the grounds on the face of it and the averments of the Applicant in his supporting affidavit. In his affidavit, he deponed that he has been in continuous and uninterrupted possession of the suit land since 2003. Further, that the Respondent has never raised any concern although he has been aware of the circumstances surrounding his occupation for over 12 years. He urged that he has no other place of abode and that he has cultivated the suit land for 12 years, annexing copies of photographs as RJA-01 3.Additionally, he deponed that the land in question is registered in the name of the Respondent, annexing and marking as RJA-02 a copy of the search. Further, that the interested party was acting with impunity to deny him use in the land in collusion with the Assistant chief. He urged the court to allow the Application as prayed. 4.He filed a further affidavit dated 26th November 2025 where he deponed that he took photos of his home on 6th November 2025 and he annexed the same as he wished them to form part of the court records. 5.The matter proceeded to full hearing with the Applicant as the sole witness. 6.PW1 was Raphael Jomo Anyanga who testified that he has been residing on the suit land for over 25 years. Further, that he had three wives who he built homes for on the parcel of land and he buried his first wife on the same land. He adopted his affidavit dated 26th September 2025 as evidence in chief and further, produced photographs of his homes on the land as P-Exh 1(a) – (c). He additionally stated that he adopted his further affidavit dated 26th November 2025. He produced a certificate of official search for the suit land as P-Exh 2 and stated that over all these years, no one has bothered him over the land. He prayed that he be issued with a title of the land so that he could live in peace. 7.The Applicant was granted seven days to file submissions. He filed them and they were dated 3rd February 2026. Applicants’ submissions 8.Learned Counsel for the Applicant cited and reproduced the provisions of Section 7 of the Limitation of Actions Act and Section 38 of the same Act. He cited Wilson Njoroge Kamau v Nganga Muceru Kamau ELC NO. 259 of 2017 on the elements of adverse possession and additionally cited the case M'Mbaoni M’lthara vs James Mbaka Civil Appeal No. 38 of 2017 where the Honorable Judge noted that adverse Possession is an uninterrupted, notorious, exclusive and continuous use of land for a period of 12 years. Counsel submitted that the elements of adverse possession from the authorities cited were that firstly, actual possession of land, secondly the possession must be continuous for a period of 12 years and lastly the possession must be uninterrupted. Counsel submitted that all the elements of adverse possession were met. That the Applicant has been in peaceful, continuous and uninterrupted possession for a period of over 25 years. He prayed that the suit be allowed as prayed. Analysis and Determination 9.The sole issue for determination is; Whether the Applicant has acquired the suit by way of adverse possession 10.The doctrine of adverse possession in Kenya is founded under Limitation of Actions Act. Section 7 of the said Act provides as follows;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.” 11.Further section 13 of the same Act, provides that adverse possession is the exception to this limitation: 1.A right of action to recover land does not 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 Section 9, 10, 11, and 12 a right of action to recover land accrues on a certain date and no person is in adverse on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. 12.Section 17 goes on to provide as follows:“Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished”. 13.Finally, Section 38(1) and (2) state that:“(1)Where a person claims to have become entitled by Adverse Possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.(2)An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act. 14.The doctrine of adverse possession was aptly defined in Mtana Lewa - v- Kahindi Ngala Mwangandi (2015) eKLR where the Court of Appeal held that: -“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 of stealth not 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.” 15.The principles in order to establish a claim of adverse possession, the possession must be:a.Adverse to the interests of the owner – meaning that the claimant is in possession as owner in contradistinction to holding in recognition of or subordination to the true owner or to a recognized superior claim of another;b.Actual - as opposed to constructive possession where the test is the degree of the actual use and enjoyment of the parcel of land involved by the claimant or his agent, tenant or licensee;c.Open and notorious - meaning that the possession must be open and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner’s rights are being invaded. Differently put, the possession must be manifest to the community;d.Without force - meaning that the possession and occupation must have been achieved peaceably not through actual or threatened violence;e.Exclusive - meaning that the possession must be of such exclusive character that it will operate as an ouster of the owner of the legal title. Differently put, the claimant must demonstrate that she wholly excluded the owner from possession for the required period;f.Continuous and uninterrupted for the period of twelve years - meaning that the title owner did not re-enter the property under circumstances showing her intention to assert dominion against the adverse user for at least twelve years.See Joseph Ndafu Njurukani & 2 Others v Emily Naliaka Barasa, Kisumu Civil Appeal No. 149 of 2022; Titus Mutuku Kasuve (Supra); Titus Kigoro Munyi (Supra); Wambugu v Njuguna (supra) and Karuntimi Raiji (supra). 16.From the evidence on record, the Applicant testified that he had been in occupation of the suit land for a period of over 12 years, specifically for over 25 years. He had three wives who he built homes for on the parcel of land, and he buried his first wife on the suit land. Further, he produced evidence that his occupation of the suit land was actual to wit; the photos tendered as evidence in court. From the contents of the certificate of official search, it is evident that the suit land was registered in the name of Fitz Mark Ayieko, the Respondent. It is therefore my considered view that the Applicant has tabled cogent and consistent evidence that he has had uninterrupted, notorious, exclusive and continuous use of the suit land for a period of over 12 years. 17.In the premises, the Applicants’ suit succeeds and I enter judgment for the Applicant against the Respondent in the following terms;i.A declaration is hereby issued that the Applicant has acquired title to 0.71 hectares out of land parcel No. Kanyada / Kanyango / Kalanya /4335, having occupied it for over 12 years by way of adverse possessionii.The Respondent is ordered to sign all transfer documents to facilitate the transfer and of the said parcel of land, measuring approximately 0.71 hectares out of land being part of parcel No. Kanyada/Kanyango/Kalanya/4335 in favour of the Applicant within 30 days of survey and drawing of the mutation forms thereto at the cost of the applicant, in default of which the Deputy Registrar to sign the documents in that behalf.iii.The County Surveyor to carry out the survey on being moved by the Applicant and being facilitated for it by the applicant and excise the said parcel portion of land, and Land Registrar Homa Bay County is hereby ordered to register the said approximately 0.71 hectares in the name of the Applicant.iv.Each party shall bear its own costs. 18.Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 8TH DAY OF MAY 2026.HON. DR. IUR NYAGAKA*JUDGEIn the presence ofMs. Odera Advocate for the Applicant,No appearance for the RespondentsHoma Bay ELCLOS No. E073 of 2025 D.O.D. 08/5/2026Page 3 of 3