Mwaga v Agumba (Enviromental and Land Originating Summons E023 of 2025) [2026] KEELC 4063 (KLR) (2 July 2026) (Judgment)

### REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KISUMU ELC OS NO. E023 OF 2025 **IN THE MATTER OF THE LAND REGISTRATION ACT, 2012** **AND** **IN THE MATTER OF SECTIONS 7, 13, 17 AND 38 OF THE LIMITATION OF ACTIONS ACT, CAP. 22 LAWS OF KENYA** **AND** **IN THE MATTER OF PARCEL OF LAND NO. KISUMU/NYAHERA/411** **AND** **IN THE MATTER OF AN APPLICATION TO BE REGISTERED BY ADVERSE POSSESSION** **SAMWEL OOKO MWAGA...................................................APPLICANT** **VERSUS** **OTIENO AGUMBA................................................................RESPONDENT** **JUDGMENT** ### Introduction [1] The matter before this Court for determination is anchored in an Originating Summons dated 25th April 2025. The Applicant, Samwel Ooko Mwaga, seeks orders to extinguish the Respondent, Otieno Agumba’s, proprietary rights over a parcel of land, namely KISUMU/NYAHERA/411. In compliance with the procedural dictates of Order 37 Rule 7 of the Civil Procedure Rules 2010, read concurrently with Sections 7, 17, 37, and 38 of the Limitation of Actions Act (Cap. 22) and Section 28 of the Land Registration Act (No. 3 of 2012), the Applicant seeks the determination of the following questions: i) Whether the Applicant herein is entitled to all the parcel of land described as Parcel No. Kisumu/Nyahera/411 measuring 0.19Ha registered in the name of the Respondent by reason of the adverse possession. ii)Whether the Respondent’s interest in Land Parcel No. Kisumu/Nyahera/411, measuring 0.19 Ha, has been extinguished, subject to the Applicant’s interest acquired through adverse possession, and whether the Respondent now holds the title in trust for the Applicant. iii) Whether the Respondent should now transfer the suit property to the Applicant. iv) Whether the Deputy Registrar can execute transfer documents on behalf of the Respondent. v) Whether the Respondent should be condemned to pay the costs of this summons. [2] The Applicant encountered difficulties in effecting personal service on the Respondent. Consequently, he moved the Court by Chamber Summons application and obtained leave to effect service on the Respondent by advertisement in a daily newspaper of wide national circulation. Despite the lapse of the statutorily prescribed period following the public advertisement, the Respondent neither entered an appearance nor filed any Replying Affidavit or Grounds of Opposition to controvert the Applicant’s claims. As a result, the matter proceeded ex parte through viva voce evidence. **The Applicant’s Case** [3] The Applicant adopted his Supporting Affidavit, sworn on 25th April 2025, as his evidence-in-chief. He deposed that the occupation of the suit land began in 1975, when, then a youth, he relocated to Nyahera Sub-location, Kisumu North Location, to reside with his paternal uncle, the late Enos Odie Guya. The Applicant lived under his uncle’s care until he attained adulthood, after which he established his own family unit within the locality. The Applicant produced registration documents, including his uncle’s Certificate of Death, his own Certificate of Marriage, and his children’s Birth Certificates. [4] The Applicant averred that in 1983 his uncle advised him to establish an independent homestead on the adjacent land parcel, Kisumu/Nyahera/411, the suit property herein. Acting on this advice, the Applicant took physical possession of the suit property in 1983. He then constructed a permanent home on a portion of the land and commenced cultivation on the remaining acreage. The Applicant deposed that he has since remained in actual, open, continuous, and peaceful possession of the entire suit property. He stated that this possession had been entirely without the registered owner’s consent and permission, and that his occupation had been overtly hostile to the registered owner's interest. The Applicant asserted that he has consistently lived on, cultivated, and harvested from the land, exercising total dominion over the parcel. [5] To demonstrate the extent and nature of his occupation, the Applicant produced a series of photographs showing the land’s physical condition. The photographs reveal permanent dwellings, mature vegetation, and ongoing agricultural activity, painting a picture of deeply entrenched, long-term human habitation. [6] To confirm registered ownership, the Applicant produced a certified extract of the Green Card from the County Land Registrar, Kisumu. The Green Card confirms that the suit property, measuring approximately 0.19 hectares, was registered as an absolute proprietorship in the name of the Respondent, Otieno Agumba, on 1st August 1980. The Applicant contended that although the Respondent holds this formal title, he has never set foot on the property, nor has he exercised any acts of ownership or possession since 1983. ### Summary of the Applicant's Submissions [7] Counsel for the Applicant, M/s Maxwell O. Ogonda & Associates, filed written submissions dated 23rd June 2026. Counsel framed five core issues for the Court’s determination: i) Whether the Plaintiff has demonstrated actual, continuous, and exclusive possession of the suit property. ii) Whether the possession has been without the consent of the Respondent, hence hostile to the interests of the Respondent. iii) Whether the possession has been open, notorious, and continuous since 1983. iv) Whether the Plaintiff has acquired title to Land Parcel No. Kisumu/Nyahera/411 by way of adverse possession. v) Who pays the costs of the suit? [8] In addressing these issues, Counsel submitted that the oral and documentary evidence unequivocally demonstrates that the Applicant took physical possession of the land in 1983 and has remained in uninterrupted occupation to date, spanning 42 years. Counsel emphasised that this possession was non-permissive and non-consensual, completely fulfilling the strict legal thresholds required to sustain a claim of adverse possession. [9] Counsel grounded the legal arguments in the statutory framework of the Limitation of Actions Act. Specifically, Counsel cited Section 7 of the Act, which imposes a mandatory bar on actions to recover land after 12 years from the date the right accrued. Furthermore, Counsel relied on Section 13, which provides that a right of action does not accrue unless the land is in the adverse possession of another person, and on Section 38, which empowers the Court to order the registration of the adverse possessor as the proprietor in place of the registered owner. [10] Citing the Court of Appeal’s decision in ***Wambugu v Njuguna [1983] KLR,*** counsel submitted that, under the holding in that case, dispossession of a proprietor requires acts fundamentally inconsistent with the proprietor’s intended enjoyment of the land. Counsel argued that the Applicant’s construction of a permanent home and his extensive, continuous cultivation of the land constitute acts of dispossession. [11] Additionally, counsel cited ***Mbira v Giachuhi [2002] 1 EALR 137,*** submitting that a person seeking to acquire title by adverse possession must prove non-permissive or non-consensual, actual, open, notorious, exclusive, and adverse use. Counsel concluded that the Applicant’s case meets this legal threshold, urging the Court to grant the prayers in the Originating Summons. ### Analysis and Determination [12] Having reviewed the Originating Summons, the Supporting Affidavit, the documentary exhibits, the Applicant’s oral testimony, and the written submissions presented by Counsel, the Court distils the following issues for determination: i) Whether the Applicant has met the legal and evidentiary thresholds required for the grant of orders of adverse possession. ii) Whether the Respondent’s title has been extinguished by operation of law, resulting in a constructive trust. 1. Who shall bear the costs of the suit? **The Statutory Framework and the Threshold for Adverse Possession** [13] The substantive law governing adverse possession in Kenya is anchored in the Limitation of Actions Act, Cap 22, Laws of Kenya. The doctrine operates through the interplay of Sections 7, 13, and 38, which create the statutory mechanism through which title is lost by the registered owner and subsequently gained by the adverse possessor. [14] Section 7 sets the statutory time limit, placing a bar on delayed litigation: *“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.”* [15] Section 13 qualifies this timeline by explicitly defining when time begins to run against the registered owner: *“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 Section 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 a fresh 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.”* [16] Finally, Section 38 provides the procedural remedy for the successful claimant: *“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.”* [17] Turning to the jurisprudential threshold for claims of this nature, the Court of Appeal in ***Mtana Lewa v Kahindi Ngala Mwagandi [2015] KECA 532 (KLR)*** 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 of stealth not under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”*** [18] This legal threshold is encapsulated in the Latin maxim: nec vi, nec clam, nec precario (without force, without secrecy, without permission). The claimant bears the burden of proving that their possession was non-permissive (non-consensual), actual, open, notorious, exclusive, and continuous for an uninterrupted period of 12 years. The Court of Appeal reiterated this standard in ***Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR***: ***“18. Likewise, it is settled that a person seeking to acquire title to land by of adverse possession must prove non permissive or non-consensual, actual open, notorious, exclusive and adverse use/occupation of the land in question for an uninterrupted period of 12 years as espoused in the Latin maxim, nec vi nec clam nec precario. See Jandu vs. Kirplal & Another (1975) EA 225. In other words, a party relying on the doctrine bears the burden of demonstrating that the title holder has lost his/her right to the land either by being dispossessed of it or having discontinued his possession of it for the aforementioned statutory period. See this Court's decision in Wambugu vs. Njuguna KLR 173.”*** The Court must now evaluate the Applicant’s evidence against these legal parameters. ##### Actual, Open, and Notorious Possession (Nec Clam) [19] The law requires possession to be apparent to all. A person cannot acquire land rights by secret occupation or hidden means. The registered owner should have a fair opportunity to notice if someone else is asserting control over their property. In the recent decision of ***Ouko & another (Suing as the Personal Representatives and Administrators of the Estate of Jason Atinda Ouko (Deceased) v Kageni (Sued as the Personal Representative and Administrator of the Estate of Samuel Muhika Kageni (Deceased) [2025] KECA 2126 (KLR),*** the Court of Appeal clarified that possession of land need not be strictly physical in every square inch; it can also be constructive, provided the claimant exercises overriding control and intentionality. Citing an earlier decision in ***Peter Mbiri Michuki v Samuel Michuki [2014] KECA 342 (KLR),*** the Court held that: ***“The appellants claimed that the respondent was not in physical occupation of the land, but, as submitted by the respondent, the evidence of PW3 sufficiently established that she had put up structures on the land and planted trees. The respondent was in control of the activities on the land through her employee, PW3. This satisfied the holding in Peter Mbiri Michuki vs Samuel Mugo Gichuku (supra) that possession of land or any property for that matter, need not be actual and physical but can also be constructive.”*** [20] In the instant case, the Applicant’s possession is not merely constructive; it is physical. The Applicant deposed that he entered the suit property in 1983 and immediately commenced the construction of a homestead. The photographic evidence presented to the Court (Exhibit S.O.M-4) reveals permanent residential structures, mature trees, and active agricultural use. These are permanent, visible alterations to the landscape. They represent acts of dominion that are entirely inconsistent with the Respondent’s enjoyment of the land. As noted in ***James Maina Kinya v Gerald Kwendaka [2018] KEELC 3155 (KLR):*** ***“The fact that the Plaintiff has extensively developed the suit property is a demonstration of animus possidendi, (intention to possess) to the exclusion of the defendant. He is also using or occupying the land in contrast to the title (hostile) usage to the right of the title own (Defendant)... This demonstrates exclusive control of the suit property by the Plaintiff which is an essential ingredient in establishing adverse possession.”*** The Court is thus satisfied that the Applicant’s possession was open, notorious, and entirely without secrecy (nec clam). ##### Non-Permissive and Hostile Possession (Nec Precario) [21] Adverse possession must arise from a hostile intent (animus possidendi), an intention to possess the land to the exclusion of the registered owner. If the occupation is facilitated by a lease, tenancy, or licence granted by the owner, the possession is deemed permissive and cannot mature into adverse possession. Time does not begin to run against the owner until the permission is expressly repudiated or the contractual arrangement concludes. The element of non-permissive possession was comprehensively explained by Justice Kuloba in ***Gabriel Mbui v Mukindia Maranya [1993] eKLR,*** where the Court stated: ***“(3) The occupation of the land by the intruder who pleads adverse possession must be non-permissive use, i.e. without permission from the true owner, of the land occupied. It has been held many times that acts done under licence or permitted by, or with love of, the owner do not amount to adverse possession and do not give the licensee or permitted entrant any title under the limitation statute.”*** [22] There is no evidence on record that the Respondent (the registered owner) ever granted the Applicant permission, leave, or licence to occupy the land. The Applicant averred that his possession was without the registered owner's consent or permission and was hostile to the owner's interests. In the absence of any contractual relationship, lease, or licence between the Applicant and the Respondent, the Applicant’s entry in 1983 was, in the eyes of the law, an outright trespass and a usurpation of the Respondent’s proprietary rights. The Court of Appeal in ***Ouko v Kageni (supra)*** emphasised that the limitation clock is triggered by the parties’ objective conduct. By erecting a permanent home on a parcel he knew he did not legally own, and without the owner’s permission, the Applicant demonstrated an objective intention to hold the land adversely from day one. Therefore, the occupation was non-permissive and hostile (nec precario). Because the Applicant was never under a contract or license, the Respondent had the right to make entry and recover possession from the moment the Applicant stepped onto the land in 1983. The statute began to run immediately. **Exclusive Possession of a Defined Parcel** [23] To successfully dispossess the true owner, the adverse possessor must maintain exclusive control. The Applicant averred that the Respondent has never been in possession of the suit land since 1983. For decades, the Applicant lived on the property with his family, built structures, and cultivated the remaining 0.19 hectares. There is no evidence of shared possession or joint enterprise. The Applicant exercised complete and exclusive dominion over the entire parcel. **Adequate in Continuity (The 12-Year Statutory Period)** [24] Section 7 of the Limitation of Actions Act requires an uninterrupted 12-year period. During this statutory window, if the registered owner asserts their legal rights, for instance, by initiating eviction proceedings, demanding rent, or physically re-entering the land, the limitation clock stops and the continuity of adverse possession is broken. The uncontroverted evidence before the Court establishes that the Applicant entered the suit property in 1983. From 1983 to 1995, 12 years lapsed. By the time the Applicant filed this Originating Summons in April 2025, 42 years had elapsed. The Applicant's possession has been continuous, peaceful, and unbroken by any legal or physical intervention by the Respondent. #### Extinguishment of Title [25] The Torrens system, operationalised in Kenya through the Land Registration Act, generally guarantees the indefeasibility of a registered title. However, this indefeasibility is subject to statutory exceptions. Section 28 of the Land Registration Act lists “rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription” as overriding interests that encumber a registered title without the need for notation on the register. When the 12-year period lapsed in 1995, the Respondent’s legal right to recover the land was irreparably destroyed. The Court finds that the Respondent’s title to Kisumu/Nyahera/411 was extinguished by operation of Section 17 of the Limitation of Actions Act in 1995. The Applicant has acquired an indefeasible equitable right to the property, and this Court is mandated by Section 38 of the Limitation of Actions Act to convert that right into a legal title. #### Who Shall Bear the Costs of the Suit? [26] The final issue concerns the award of costs in these proceedings. Section 27(1) of the Civil Procedure Act grants the Court discretion to award costs, subject to the overarching rule that costs follow the event (i.e., the successful party is ordinarily awarded costs). In the present Originating Summons, the Applicant has been entirely successful in proving his claim. However, the Court must take account of the practical realities of this case. The Applicant averred that the Respondent’s whereabouts were unknown, prompting the Court to grant leave for substituted service by newspaper advertisement. The Respondent did not participate in these proceedings, and there is no evidence that he can be located or that he holds any known assets apart from the subject land. Imposing an order for costs against a Respondent who cannot be traced or executed against would be an exercise in judicial futility. For this reason, the Court shall depart from the general rule that costs follow the event and direct that each party shall bear its own costs. ### Final Orders [27] The Court, having analysed the pleadings, the evidence, and the applicable statutory and case law, finds that the Applicant has proved his claim of adverse possession over the suit property to the required legal standard. The Court enters judgment in favour of the Applicant as follows: i. A declaration is hereby made that the Applicant has been in open, continuous, peaceful, and uninterrupted adverse possession and occupation of the parcel of land known as Kisumu/Nyahera/411, measuring approximately 0.19 hectares, for 42 years, which is well in excess of the 12-year statutory period prescribed by Section 7 of the Limitation of Actions Act. ii. A declaration is hereby made that the Respondent's title and proprietary interests in the suit land have been permanently extinguished by operation of law under the doctrine of adverse possession. iii. A declaration is hereby made that, following the extinguishment of his title, the title to the suit land is held in trust by the Respondent for the Applicant. iv. An order is hereby issued directing the Land Registrar, Kisumu County, to cancel the Respondent's registration as proprietor of the suit land and to register the Applicant as the absolute proprietor of the parcel of land known as Kisumu/Nyahera/411 in place of the Respondent. v. The Deputy Registrar of the Environment and Land Court at Kisumu is hereby authorised to sign and execute all necessary transfer forms, mutation documents, and any other requisite instruments to facilitate the transfer and registration of the suit property in the name of the Applicant. vi. There shall be no order as to costs. Dated, signed, and delivered virtually at Kisumu this 2nd day of July 2026. C.C. Oluoch Judge **In the presence of:** Faith Court Assistant Parties Absent