https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3818

Atekha v Timothy (Enviromental and Land Originating Summons E003 of 2023) [2026] KEELC 3818 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEELC 3818 (KLR) Republic of Kenya In the Environment and Land Court at Busia Enviromental and Land Originating Summons E003 of 2023 L Waithaka, J June 9, 2026 IN THE MATTER OF THE LIMITATION OF ACTIONS ACT AND IN THE MATTER OF L.R NO. BUKHAYO/KISOKO/1100 AND IN THE MATTER OF A CLAIM FOR ADVERSE POSSESSION Between Samson Atekha Applicant and Owase Odhiambo Timothy Respondent Judgment 1.The uncontroverted/undisputed facts of this case are as follows: -i.The parcel of land known as L.R No. Bukhayo/Kisoko/1100 (hereinafter known as the suit property) is currently registered in the name of the respondent herein, Owase Odhiambo Timothy.ii.Registration of the suit property in the name of the respondent was done on 5th June 2020 and a title deed in respect thereof issued to him on the same day.iii.The respondent acquired his interest in the suit property pursuant to a sale agreement entered into between himself and the previous registered owner of the suit property, Grace Ndahendia Wakhungu, on 17th February, 2020.iv.At the time of sale of the suit property to the respondent herein, the suit property was occupied by the applicant but as a licensee of the previous registered owner.v.The applicant entered into the suit property in 1991 as a caretaker of the previous owner, Grace Ndahendia Wakhungu and had stayed therein with his family for many years.vi.Claiming that the previous registered owner stopped paying him his salary of Kshs. 17,000/- and requested him to relocate to another parcel of land which request he refused to heed and continued to live in the suit property without the consent or permission of the previous owner, the applicant contends that by the time the suit property was sold by the previous owner to the respondent, that is to say in 2020, he had become entitled to it on account of having been in adverse possession thereof. 2.Adverse possession was defined by the Court of Appeal (Makhandia JA), in the case of Mtana Lewa v Kahindi Ngala Mwagandi [2005] eKLR, 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 neglects to take action against such person in assertion of his title for a certain period. In Kenya, the period 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 nor under license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the owner.” 3.In Mistry Valji v Janendra Raichand & 2 others [2016] eKLR, the Court of Appeal set out some of the principles to be considered in a claim of adverse possession as follows: -i.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;ii.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;iii.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.iv.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)v.The filing of a suit for recovery of land or any other recognized assertion of title to the land by the owner stops time from running for purposes of section 38 of the Limitation of Actions Act. See William Gatuhi Murathe v Gakuru Gathumbi, Civil Appeal No. 49 of 1996. 4.During hearing of the instant case, it emerged that the applicant entered the suit property as a caretaker of the previous owner. In that regard, see the evidence of the applicant which is as follows: -“…I started living on the suit property in 1991. I still live on the land. I do not know the Respondent. I learnt that he had purchased the land in 2020. I was brought into the land by Grace Wakhungu in 1991. She was paying me a salary but she stopped. I have never sued her for the dues. In 1996 she asked me to move to a different parcel of land but I refused. She never bothered me again and I never moved out of the land…Grace brought me into the land as a care taker. She paid me Ksh.17, 000/- for only 3 months. There was a house which I rebuilt after it collapsed. I moved into the land in 1991 with my wife and 8 children. The 1st born was born in 1992 but I do not know when the others were born…I do not know Timothy Owase. I was not aware when Grace sold the land. I was the one planting sugarcane but Grace was the one receiving payment. I do not have any account with Busia County or any of the sugar companies. I last met Grace in 2020 when I learnt she had sold the land but she told me to continue staying on the land. Grace has never asked me to vacate the suit property. I am aware that the Respondent filed some cases in the lower court for eviction…I built the houses in P exhibit 3 (a - h). I have 8 children. Some were born elsewhere and some on the suit property. I reiterate, I do not know the Respondent. I was not informed when the land was sold. I was informed about the sale by Grace’s cousin Milton. I am the one who planted the sugarcane and would take it to Busia Sugar Company. The proceeds were paid into Grace’s account but the sugarcane was mine. I last met Grace in 1996. It is true the Respondent sued me in the lower court and I filed a defence. My relationship with Grace is good. She is like my mother but she abandoned me in 1991. I am before court claiming the suit property having stayed there for more than 12 years.” 5.Whilst the applicant claims that his use and occupation of the suit property became adverse to the rights of the previous registered owner, the evidence adduced in this case comprised in the fact that the previous owner sold the suit property to the respondent herein and the applicant’s admission that it is the previous owner who was in control of the proceeds of sale of the farm produce (sugar cane that the applicant was growing in the suit property) shows that it is the previous owner of the suit property who was in actual control of the suit property and not the applicant as claimed by the applicant. The applicant admitted having entered into the suit property with the permission of the previous owner. Although he claims to have stayed in the land as the exclusive owner thereof, his admission that the proceeds from sale of sugar cane which he grew were paid in an account controlled by the previous owner negates a finding that he dispossessed the previous owner of her interest in the suit property and that his use and occupation of the suit property was without the permission of the previous owner. 6.Noting that the applicant’s claim relates to a time when the suit property was registered in the name of the previous registered owner, Grace Ndahendia Wakhungu, and taking into account the effect of the applicant’s claim, which is that the previous owner’s right and entitlement to the suit property was extinguished by his alleged adverse possession of the suit property and by extension that the previous owner had no good title to pass to the respondent as she was merely his trustee, I do find and hold that the previous owner of the suit property is a proper party to this suit without whose participation in the suit the court may not fairly and justly determine the applicant’s claim to entitlement to the suit property on account of his claim that his use and occupation of the suit property was adverse to the rights of the previous registered owner thereof. 7.In Jotham v Kaburu E & LC OS E001 of 2023 (2026) KE ELC 1136 (KLR), the Court faced with a similar claim to the one before this court, stated/held:-“In the present suit, the plaintiff contends that his title to the 1.85 acre portion of the suit land crystalized in 2008 and that the succession and the transmission relating to the estate of the late Victor Kaburu, which the Public Trustee carried out between 2016 and 2021, were subject to his title as an adverse possessor. While aware that the estate of the late Victor Kaburu was administered by the Public Trustee, and that the title he is challenging and alleging to have become extinguished was transmitted to the defendant by the Public Trustee in 2021, he elected not to sue the Public Trustee as a co-defendant in the suit. Having failed to challenge the title which the Public Trustee transmitted to the defendant, his challenge against the defendant’s title cannot succeed. To stand a chance of succeeding, he ought to have challenged the title which the Public Trustee transmitted to the defendant. By failing to sue the Public Trustee as a defendant, he failed to challenge the title which the Public Trustee transmitted to the defendant in 2021”. 8.Having carefully read and considered the pleadings, the evidence and the submissions filed in the matters herein, I do find that the applicant has failed to prove is pleaded case, particularly his claim that his use and possession of the suit property was without the permission, consent or license of the previous owner, on a balance of probability. In any event, there is no way he could have lawfully urged his claim against the rights of the previous owner without making her a party to the suit for the purpose of affording her an opportunity to answer to his claims or allegations made concerning her entitlement to the suit property before she transferred it to the current registered owner. 9.The claim as relates to the period the respondent has been the registered proprietor of the suit property being less than 12 years, the applicant cannot maintain his claim for adverse possession based on that period. 10.The respondent having demonstrated that he lawfully acquired the suit property from its registered owner, by dint of the provisions of Section 26 of the Registration of Land Act, 2012 his rights to the suit property are protected by law and cannot be defeated by a person in possession of it, without his consent. It matters not that the person had previous interest in it as a licensor. 11.The upshot of the foregoing is that the applicant’s suit lacks in merits. Conversely, the respondent’s counterclaim comprised in Busia CMC E104 of 2022 as directed by the court on 3rd July, 2025 has merit and I allow it as prayed. 12.Orders Accordingly. JUDGEMENT, DATED, SIGNED AND DELIVERED AT BUSIA THIS 9TH DAY OF JUNE, 2026.L. N. WAITHAKAJUDGEIn the presence of;-N/A for the applicantMr. Wesonga for the respondentCourt Asst: Sikolia