https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4725

## REPUBLIC OF KENYA ## IN THE ENVIRONMENT AND LAND COURT ## AT HOMABAY ## ELC OS NO E032 OF 2025 **SIMEON OLANDO SALA……………………….……………. PLAINTIFF** **-*VS*-** **ESTHER AKOTH OTIENO…………………………………..DEFENDANT** **BEFORE HON. JUSTICE J.W WANYONYI-JUDGE** # JUDGMENT # BACKGROUND FACTS 1. When someone exhibits an intention to control or assert authority over a thing, the most natural way to demonstrate this is by physically possessing it. Such possession often operates as a strong indication of ownership. In fact, legal traditions have long embraced the notion that possession constitutes **"nine-tenths of the law,"** emphasizing the weight it carries in determining ownership. 2. The maxim that law and equity does not help those who sleep over their rights is invoked in support of prescription of title by adverse possession. In other words, the original title holder who neglected to enforce his rights over the land cannot be permitted to re-enter the land after a long passage of time. A situation lasting for a long period creates certain expectations and it would be unjust to disappoint those who trust in them. 3. The moral justification of the law of adverse possession was graphically stated by **Justice O W Holmes** who said: *"****man is like a tree in the cleft of a rock, gradually shapes his roots to the surroundings, and where the roots have grown to a certain size, can't be displaced without cutting at his life."*** 4. The above prologue usher us to the main meal with similar background facts 5. The suit commenced by instituting originating summons dated 14th June, 2025 wherein the Applicant seeks for: * 1. The Honorable Court be pleased to declare that the Applicant Simeon OLANDO SALA as the owner of land parcel number EAST KASIPUL / KOKWANYO / 1369 measuring approximately 2.28 HA 2. In the alternative to prayer 1. above, this Honorable Court be pleased to declare that the Applicant SIMEON OLANDO SALA, to have acquired a portion of land parcel number EAST KASIPUL / KOKWANYO / 1369 approximately 2.28HA by way of adverse possession. 3. A permanent injunction do issue restraining the Respondent or any person to get on her behalf, her servants, workmen, licensees, agents from however offering for sale, allotting, sub-dividing, taking over, dispossessing, alienating, reclaiming land or harassing the applicant or interfering with their peaceful entitlement, occupation and possession of land parcel number EAST KASIPUL / KOKWANYO / 1369. 4. The Respondent herein be ordered to execute all documents of transfer in respect of the land LR No EAST KASIPUL / KOKWANYO / 1369 in favour of the Applicant failure of which the Deputy Registrar of this Honorable Court be empowered to execute the same on behalf of the said respondent. 5. The Honorable Court be pleased to subsequently order the District Land Registrar, Kosele to rectify the Land Registrar with respect to a portion of land parcel number LR No. EAST KASIPUL / KOKWANYO / 1369 measuring 2.28 Ha to have the applicant duly registered as the owner over the said land parcel number. 6. The Respondent, then agents, servants, workers be permanently restrained by an order of injunction from interfering in any manner whatsoever with LR NO. KASIPUL / EAST KASIPUL / KOKWANYO / 1369. 7. The Costs of this application be provided for and made payable by the Respondent to theApplicant. 6. The Originating Summons is hinged on six (6) grounds. 7. . It is equally supported by the affidavit sworn on 14th June 2023 by the Applicant. 8. . The Applicant filed the following documents as attachment to the affidavit in support of the claim namely; 9. Sale agreement 10. Grant of letters of Administration together with the Certificate of Confirmation 11. Search Certificate 12. Photograph. 13. . On 22nd November, 2025 directions were given and the matter proceeded to hearing on 5th March, 2026. 14. . The Applicant / Plaintiff was the sole witness. He adopted his statement dated 13 th March, 2026 supporting affidavit and produced the documents filed in the order in which they were filed in court. 15. . The plaintiff was then stood down so as to avail the original documents which he did on 8th July, 2026. 16. . On the said date, directions as under Order 18 Rule 10 of the Civil Procedure Rules to the effect that the matter proceeds as from where it had reached. 17. . The plaintiff was recalled to produce original documents ,which he did. 18. . At the close of **t**he Plaintiffs / Applicants case, a judgment date was given and the court directed that submissions be filed before judgment. 19. . Submissions were filed as directed on 9th July , 2026. 20. . The Counsel framed the issue for determination and goes ahead to state that. 21. The Applicant entered the suit land in 1969, adversely and took possession of the said title, the proprietor was still alive by then and never protested that the applicant fenced it (homestead), exclusive to others. After the demise of the owner, the Applicant engaged the son with hope of getting his share but the son died before fulfilling his commitment. 22. The wife to the deceased conducted succession proceedings and caused the original parcel to be sub-divided from East Kasipul / Kokwanyo / 42 to East Kasipul / Kokwanyo / 1369 part of which is occupied by the Applicant and is apprehensive same may be sold a 3rd party. 23. The applicant submits that he has occupied the land for over 12 years, peacefully and uninterrupted ,from the time he entered without permission. 24. He relies on photographs, sale agreement, grant of letters and Search Certificate. 25. The Applicant’s Counsel has based his arguments on the case of **Mr. Riria & 5 Others v Muthoni (Civil Appeal Number 253 of 2019) (2025) KECA 051 (KLR) 4 APRIL 2025.** Where the court referred to section 3, 7, 9, 10, 11, 12, 13 and 38(1) of the Limitation of Actions Act on the right of a proprietor to recover land and the procedure of claiming land by adverse possession, **Peter Kamau Njau v Emmanuel Charo Tinga (2016) eKLR** which sets out circumstances under which the title of a registered owner may be defeated and lastly the case of **Kariuki vs Mica(Civil Appeal 196 of 2018) (2025) KECA 3,(KLR)** where it was held that acquisition of title is subject to an overriding interest. **DETERMINATION** 1. The Doctrine of adverse possession is to the effect that a person can obtain title to land solely because he / she has been in possession long enough thereby effectively dispossessing the registered proprietor (see the case of **JA Pye (Oxford) Ltd vs Graham & Another [2002] 3 All ER** where it was held that: ***"To establish title by adverse possession, a person who can be referred to as a 'squatter' must have been in possession of the suit land without consent of the registered proprietor for a period longer than the limitation period for recovery of land under the Limitation of Actions Act. It will be*** ***noted that the limitation period for recovery of land sets a time limit during which the registered proprietor who has been dispossessed from the land may institute a suit to recover the land from the possession of another person, and this limitation period accrues from the date on which the registered proprietor was dispossessed from the suit land”.*** 1. Adverse possession is defined by **Black’s Law Dictionary 6th Edition Centennial Edition (1891-1991) at page 54** to mean: *A method of acquisition of title to real property by possession for a Statutory period under certain conditions.* 1. In the case of **Jandu v Kirpal and Another [1975] EA 225 at 323** the court adopted the definition in **Bejoy Chundru v Kally Posonno [1878] 4 Cal 327 at Pg 329** and held that: ***"By adverse possession I understand to be meant possession by a person holding the land on his own behalf or on behalf of some other person other than the true owner, the true owner having immediate possession. If by this adverse possession the Statute is running, and it continues to run for twelve years, then the title of the owner is extinguished and the person in possession becomes the owner”.*** 1. The Indian Supreme Court gave essential elements of adverse possession which were considered in the light of the Limitation Act of India with provisions similar to the Kenya Limitation Act. It was held that: ***"Claim by adverse possession has two elements”:*** 1. T**he possession by the defendant must become averse to the plaintiff, and** 2. **The defendant must continue to remain in possession for a period of 12 years thereafter. *Animus possidendi*, as is well known is a requisite ingredient of adverse possession. It is now a settled principle of law that the mere possession of land would not ripen into possessory title for the said purpose. Possessor must have *animus possidendi* and hold land adverse to the title of the true owner.** **For the said purpose, not only *animus possidendi* must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the capacity for the** pr**escribed period under the Limitation Act. Mere long possession for a period of more than 12 years without anything more do not ripen into a title.** 3. Again, the principles stated in the above holdings are also encapsulated in the local legislation under the **Limitation of Actions Act**. 4. The direct input of these provisions is: 5. that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued. 6. **Secondly**, after the expiration of the said twelve years, the title of the registered owner shall be extinguished. 7. **Thirdly**, the person in adverse possession is entitled to a title by possession. 8. This section crowns it all by providing that the registered owner ceases to hold to land in his own right, but in trust for one in adverse possession. ***Determination Whether the plaintiff has proved he owns land by adverse possession.*** 1. On 5th March, 2026 the plaintiff testified as PW1. He states that he is 86 years old and resides at East Kasipul. He adopted his statement as evidence. He also adopted his supporting affidavit and went ahead to produce the following documents: 1. Sale agreement 2. Grant of letters of Administration 3. Certificate of Confirmation 4. Certificate of official search 5. Photographs (2) 2. A summary of his evidence is: 1. That he entered land parcel number **EAST KASIPUL / KOKWANYO / 42** in the presence of the proprietor. 2. That in **1985** he entered into a sale agreement with **Zablon Otieno Nyangona**, the son of the deceased. 3. Both the original proprietor and the son passed on and left him on the suit property where he established his homestead. 4. In **2015,** the daughter-in-law to the deceased proprietor commenced succession proceedings and obtained letters of Administration. 5. The grant was confirmed in **2016** and the property was distributed. 6. That he has utilized the property openly, continuously, peaceful and uninterrupted for over 50 years. 7. That he did a search and learnt that the land had been subdivided culminating into a new number **1369** measuring approximately **3.6 Ha.** where he has erected his homestead. 8. He now seeks to be declared as owner for a portion measuring **2.28 Hectares**. 3. I have looked at the agreement dated **2nd October 2001**. It indicates there was an agreement between the plaintiff and deceased father to **Zablon Otieno Nyangoya**, who was the heir of Nyangane Otieno. He did agree to dispose of 4 Acres. At paragraph 5 it is indicated the Vendor will take steps to have the four (4) Acres now part of the said parcel to purchase. The vendor was also to execute transfer forms. 4. It is trite that adverse possession is a right which comes into play not because someone loses his right to reclaim the land out of continuous and willful neglect but also on account of the possessor's intent to dispossess. 5. Before stripping the defendant of his lawful title, this Court has to take into account whether the plaintiff is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the defendant, the registered owner of the suit land. 6. The other hurdle which the plaintiff is supposed to surmount is to demonstrate the date he came into possession, whether the ***factium*** of his possession was known to the other party, how long his possession has continued and whether possession is open and undisturbed. 7. On the ***factium*** *o*f this case, the plaintiff has demonstrated he entered the land in **1969** when the owner was alive and later, he did the agreement which did not pass the test of being sanctioned by the Land Control Board. He has demonstrated that he has since then been in occupation. After the son to the owner died, the daughter-in-law moved and did succession proceedings. The change of ownership by virtue of transmission does not interrupt the period of adverse possession. 8. It should be appreciated that mere possession for a period of more than twelve years without anything more does not ripen into a title. 9. I have noted that the plaintiff's ***animus possidendi*** was open and manifested to exist at the inception of the occupation by such acts construction of permanent residential houses, cultivation of land with permanent crops to the exclusion of the registered owner. 10. It would therefore be unconscionable for a party to deny that which knowingly or unknowingly he or she has allowed or encouraged another to assume to his detriment. 11. For instance, where a stranger begins to build on land supposing it to be his, and the true owner, perceiving that mistake, abstains from setting the stranger right and leaves him to persevere in his error, a Court of Equity will not allow the true owner afterwards to assert his title to the land on which the stranger has expended money on the supposition the land was his. 12. In the light of the above, and there being no rebuttal from the Defendant, I find that the plaintiff has proved his case on the required standard. 13. I enter judgment as prayed in the plaint together with costs. **JUDGMENT DATED AND DELIVERED AT HOMABAY VIA VIRTUAL PLATFORM ON THE 10TH DAY OF JULY 2026 AT 10:30AM** **In the presence of**; 1. Nyakwamba for the plaintiff's present 2. Defendant in person absent 3. Court Assistant: Ms. Awino **JUSTICE JOHN WALTER WANYONYI- JUDGE** **10/07/2026**