https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4376

AREPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT BUSIA ELC CASE NO. E008 OF 2024 (OS) RICHARD JUMA OCHULA…………...……………………….…APPLICANT VERSUS ANTONY ODUNGO ADAMONG………………………………. RESPONDENT JUDGMENT 1. The applicant instituted the instant suit seeking to inter alia compel the respondent to transfer to him 0.6 hectares (1.5 acres) of land comprised in Land Parcel number South Teso/Chakol/308 (hereafter referred to as the suit property). 2. The applicant’s suit is premised on the ground that he has acquired title to the portion of the suit property he claims on account of having been in adverse possession thereof. 3. It is the applicant’s case that he bought the portion of the suit property he claims sometime in 2008 from the respondent and BUSIA ELC (LOS) NO. E008 OF 2024 – JUDGMENT 1 | P a g e had enjoyed peaceful use and occupation of the portion of the suit property he claims for a period of 16 years, from 2008 to 2023, when the respondent interfered with his use and possession of the suit property. 4. During the hearing, in support of his claim that he bought the suit property, the applicant gave contradictory evidence concerning the purchase price of the portion he allegedly bought as follows: - i) Kshs. 140,000/- as per the affidavit he swore in support of the Originating Summons, dated 15th February 2024; ii) Kshs. 120,000/- as per his witness statement, dated 27th February 2025; and iii) Kshs. 150,000/- as per his oral evidence in court. 5. According to the applicant’s witness statement, which was adopted as part of his evidence in chief, he stated that he paid for the suit property in instalments of Kshs. 40,000/, 30,000/-, 30,000/- and 20,000/-. BUSIA ELC (LOS) NO. E008 OF 2024 – JUDGMENT 2 | P a g e 6. It is not clear from the contradictory evidence of the applicant what the agreed purchase price of the portion he bought was. It is also not clear whether the applicant finished paying for the portion he bought and, if he finished paying for it, when he did so. 7. In his replying affidavit sworn on 24th September 2024, the respondent denied selling the suit property to the applicant. He deposed that he had leased the land to the applicant for Khs 6000/ = per year; that the applicant approached him in 2023 to sell to him the land but they did not agree. 8. During the hearing, the respondent reiterated what is stated in his replying affidavit. In cross examination, he stated that he had leased the suit property to the applicant in 2008 being the representative of his brother’s Estate because he was working away from home and was not able to till the land. The applicant paid him Kshs 80,000/= for tilling the land for 14 years. When he returned home in 2022, he requested the applicant to surrender the land back to him but the applicant asked him to sell him the land. He told him to pay Kshs. 500,000 per acre but the applicant BUSIA ELC (LOS) NO. E008 OF 2024 – JUDGMENT 3 | P a g e was unable to raise the money stating that he could only pay Kshs. 300,000/= in instalments. 9. The doctrine of adverse possession has been laid down in Kenya 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 or under the licence of the owner. The doctrine in Kenya is embodied in section 7 of the Limitation of Actions Act…” 10. In Muchiri & another v Kimani (Environment & Land Case 795 of 2017) KEELC 16645 (KLR) (23 March 2023) (Judgment) the Court stated/held: - BUSIA ELC (LOS) NO. E008 OF 2024 – JUDGMENT 4 | P a g e “The following principles, among others, regarding adverse possession are now settled; “Adverse possession is not available to a party who is on the registered owner’s land with his consent or where the entry and occupation was lawful and based on some agreement. In other words where the title of the owner is admitted there can be no claim for adverse possession. See Samuel Miki Jane v Jane Njeri Richu Civil Appeal No. 122 of 2001; The occupation of the land must be nec vi, nec clam, nec precario. See Mtana Lewa v Kahindi Ngala, Civil Appeal No. 56 of 2014; The adverse possessor must prove that through his occupation the true owner has been dispossessed or his possession discontinued. See Wambugu v Njuguna (1983) KLR 172; It is equally established that adverse possession does not arise merely by occupation and use. See Alfred Warimo v Mulaa Sumba Baraza, Civil Appeal No. 186 of 2011 (Ksm);… 30. In the case of Samuel Miki Waweru v Jane Njeri Richu, Civil Appeal No. 122 of 2001, (UR), this Court delivered the following dictum: “ … it is trite law a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in BUSIA ELC (LOS) NO. E008 OF 2024 – JUDGMENT 5 | P a g e (accordance with) provisions of an agreement of sale or lease or otherwise. Further, as the High Court correctly held in Jandu v Kirpal [1975] EA 225 possession does not become adverse before the end of the period for which permission to occupy has been granted.” 31. Equally in the case of Wambugu – v- Njuguna, (1983) KLR 172 at holding 4, this Court held: “Where the claimant is in exclusive possession of the land with leave and license of the appellant in pursuance to a valid agreement, the possession becomes adverse and time begins to run at the time the license is determined.” 11. In Munyanya v. Keya (Environment and Land Appeal E003 of 2021) (2022) KEELC 15045 KLR (22 November 2022) (Judgment) the Court stated/held: - “Having entered the property pursuant to a sale agreement, his presence thereon would have been with the permission of the seller and time for purposes of adverse possession could only begin to run upon full payment of the purchase price. See Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR.” BUSIA ELC (LOS) NO. E008 OF 2024 – JUDGMENT 6 | P a g e 12. Taking into account that the applicant’s entry into the portion of the suit property he claims is premised on alleged purchase of a portion of the suit property and considering the applicant’s claim that he paid for the purchase price in instalments, the applicant is required to lead evidence capable of showing the terms of the agreement, that he met the terms and finished paying the purchase price. This is so because for purposes of a claim for adverse possession of land based on purchase of land, time for purposes of adverse possession begins to run after full payment of the purchase and not at the time of entry into the suit property. In that regard see the case of Munyanya v. Keya (supra). 13. Having considered the evidence adduced by the applicant, I find it to be incapable of proving what the terms of the agreement entered into between him and the respondent concerning the portion of the suit property he was purchasing were. The evidence is also incapable of proving whether the applicant paid the agreed purchase price and if he did when he completed paying it. In the circumstances, I find and hold that the applicant has not discharged the duty imposed on him of proving his pleaded case on a balance of probability. BUSIA ELC (LOS) NO. E008 OF 2024 – JUDGMENT 7 | P a g e 14. The applicant having failed to prove his pleaded case on a balance of probability, I need not consider the defence offered by the respondent to the effect that he had merely leased 1 acre of land comprised in the suit property to the applicant. 15. That being my view of the case presented before this Court for determination, I dismiss it with costs to the respondent. Dated, signed and delivered virtually at Busia this 17th day of June, 2026 L. N. WAITHAKA JUDGE In the presence of; - Mr. Ouma h/b for Mr. J.V Juma for the Applicant. N/A for the Respondent Court Assistant: Sikolia BUSIA ELC (LOS) NO. E008 OF 2024 – JUDGMENT 8 | P a g e BUSIA ELC (LOS) NO. E008 OF 2024 – JUDGMENT 9 | P a g e