https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4962

**REPUBLIC OF KENYA** **IN ENVIRONMENT AND LAND COURT AT HOMA BAY** **ELC LC (OS) NO. E005 OF 2025** TOM FADHILI ABURA ............................................................APPLICANT **VERSUS** MAGRET AWUONDA ..........................................................RESPONDENT **JUDGMENT** 1. Before this Court is an Originating Summons dated 29th January 2025, supported by the affidavit of Tom Fadhili Abura sworn on the same date. The Originating Summons is brought pursuant to Article 10 of the Constitution of Kenya, Section 38 of the Limitation of Actions Act, Cap. 22 Laws of Kenya, and Order 37 Rule 7 of the Civil Procedure Rules, seeking orders founded on the doctrine of adverse possession. 2. The applicant seeks the following orders: 3. A declaration that the respondent's right to recover land parcel **SUBA/KAMWENDA/2144** has been extinguished under the Limitation of Actions Act, Cap. 22 Laws of Kenya, and that the respondent's title thereto has equally been extinguished on the ground that the applicant has openly, peacefully, exclusively and continuously occupied and possessed the said parcel of land for a period exceeding twelve (12) years. 4. An order directing the **Land Registrar, Homa Bay**, to register the applicant as the sole and absolute proprietor of land parcel **SUBA/KAMWENDA/2144** by virtue of adverse possession. 5. Costs of the Originating Summons. **Applicant's Case** 1. The applicant's case is founded upon the Supporting Affidavit sworn on **29th January 2025**, wherein he depones, inter alia, that: 1. The respondent, **Magret Awuonda**, is the registered proprietor of land parcel **SUBA/KAMWENDA/2144**. 2. He was born in the year **1974** and found his family residing on the suit property, where they have remained in occupation ever since. According to the applicant, although his family occupied the land, they did not possess a title deed as the process of registration had not been completed. 3. He further avers that his family has extensively developed and occupied the suit property over the years and even permitted **World Vision** to drill a community borehole on a portion thereof for the benefit of the surrounding community. 4. It is his contention that, unbeknown to his family and without following the due process of the law, the respondent fraudulently procured registration of the suit property in her name. 5. The applicant finally avers that he has satisfied all the legal requirements necessary to warrant the grant of the orders sought. 2. In support of his claim, the applicant produced the following documentary evidence: 3. **PExh. 1** – Certificate of Official Search in respect of land parcel **SUBA/KAMWENDA/2144**; 4. ii. **PExh. 2** – Green Card relating to land parcel **SUBA/KAMWENDA/2144**; 5. **PExh. 3** – Photographs depicting the residential houses erected on the suit property; and 6. **PExh. 4** – Photograph of the borehole drilled by World Vision on the suit property. 7. The matter first came before this Court on 3rd July 2025, when learned Counsel for the applicant informed the Court that despite several attempts, the respondent had not been traced for purposes of personal service. Counsel consequently sought leave to effect service by way of substituted service through advertisement in a newspaper of nationwide circulation. 8. Upon considering the application, the Court, on 26th November 2025, granted leave to effect substituted service by way of advertisement. The Court further directed that proof of such service be filed before the matter could proceed for hearing. 9. Subsequently, on 8th May 2026, the matter was fixed for hearing on 14th July 2026. 10. On 14th July 2026, the matter proceeded for formal proof. Learned counsel for the applicant informed the Court that the respondent had neither entered appearance nor filed any response despite being duly served. The applicant adopted his Supporting Affidavit sworn on 29th January 2025 as his evidence-in-chief and produced the documents listed under paragraph 4 above as exhibits. Upon closing his case, counsel sought leave to file written submissions, which leave was duly granted. 11. Thereafter, the Court directed that judgment be delivered on 21st July 2026. 12. In his written submissions, the applicant relied on the decisions in **Wambugu v Njuguna [1983] KLR 172, Kasuve v Mwaani Investments Limited & 4 Others [2004] 1 KLR 184, Public Trustee v Wanduru [1984] KLR 314 and Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR.** Counsel submitted that the evidence tendered by the applicant remained uncontroverted and sufficiently established all the essential elements of adverse possession, namely actual and exclusive possession, open and notorious occupation, peaceful and uninterrupted possession without the permission of the registered proprietor, and occupation for a period exceeding twelve years. **Service** 1. Before considering the merits of the Originating Summons, the Court is obliged to satisfy itself that the respondent was duly served in accordance with the orders issued on 26th November 2025. The record contains an Affidavit of Service sworn by Clifford Otieno Obiero, an Advocate of High Court of Kenya on 13th February 2026, demonstrating compliance with the Court's directions regarding substituted service by advertisement. The Court is therefore satisfied that the respondent was duly served but elected neither to enter appearance nor file any response to the proceedings. Consequently, the matter properly proceeded by way of formal proof. **DETERMINATION** 1. Having considered the Originating Summons, the affidavit in support thereof, the documentary evidence produced, the oral testimony of the applicant, and the written submissions filed, the issues that arise for determination are: 2. Whether the applicant has proved his claim for adverse possession over land parcel **SUBA/KAMWENDA/2144**. 3. ii. Whether the applicant is entitled to the orders sought. 4. Although this matter proceeded by way of formal proof owing to the respondent's failure to enter appearance or file a response despite proper service, it is trite that the failure by a defendant to defend a suit does not automatically entitle a plaintiff to judgment. The legal burden of proof remains upon the applicant throughout the proceedings. Sections 107 and 109 of the Evidence Act place the burden upon the party who asserts a fact to prove the same. Consequently, the applicant was still required to establish, on a balance of probabilities, that he had satisfied all the legal ingredients necessary to sustain a claim for adverse possession. 5. On the 1st issue as to whether the appellants had proved adverse possession of the suit property, the statutory underpinnings of such a claim was set out by the Court of Appeal in **Teresa Wachuka Gachira v Joseph Mwangi Gachira [2009] eKLR** as follows: **“Adverse possession is statutorily provided for in this country. Ordinarily such claim would be pleaded under Section 7 of the Limitation of Actions Act, Cap 22, which provides: 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 its rst accrued to some person through whom he claims, to that person. The following provisions of Section 13 of the same Act also apply: (1) A right of action to recover land does not accrue unless the land is in 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 ….** Section 38 of the Act also provides as follows: **“38. Registration of title to land or easement acquired under Act.(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.”** 1. For a party to succeed in a suit for adverse possession, the following circumstances must arise as considered by this Court in the case of **Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR**. **“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 or stealth or 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.”** 1. It is trite law that a claim for adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner or in pursuance of an agreement for sale or lease or otherwise. (See; Samuel Miki Waweru vs. Jane Njeri Richu [2007] eKLR). This brings me to the issue of whether the respondent knew that the applicant was in occupation of his land; and related to that and whether it was important for the owner of the suit land to know of the adverse possession. The Court of Appeal in the case of Benjamin Kamau Murima & Others vs. Gladys Njeri, CA No. 213 of 1996 held that: **“The combined effect of the relevant provisions of Sections 7, 13 and 17 of the Limitation of Actions Act , Chapter 22 of the Laws of Kenya is to extinguish the title of the proprietor of land in favour of an adverse possessor of the same at the expiry of 12 years of Adverse Possession of that land.”** The same Court further held that the onus is on the person claiming Adverse Possession. The Court delivered itself thus: ***“… to prove that they have used this land which they claim as of right: Nec vi, nec clam, nec precario (No force, no secrecy, no evasion). So the Applicant must show that the respondent had knowledge (or the means of knowing, actual or constructive) of the possession or occupation. The possession must be continuous. It must not be broken for any temporary purpose or by any endeavors to interrupt it or by any recurrent consideration.’’*** 1. Therefore, the onus is on the applicant to show that either the respondent knew of his adverse possession of the suit land, or that she had the means of knowing or finding out. In that regard, the evidence of the applicant is that “ I was born and found my family living on the said on the said land; our family had no title deed yet; the same was pending processing in the land registry. That unbeknownst to of us all, fraudulently and without following any procedure known in law, the respondent herein got this land registered in her name. That the respondent was married to our neighbor Mr. Owuonda but divorced him.” I find that there is sufficient evidence to find, on a balance of probabilities that the respondent had the means of knowing that the applicant was using the suit land. 2. The applicant states that he has been in occupation and use of the suit property. In support of this assertion, he produced photographs depicting a residential house erected on the land, which this Court finds sufficient to demonstrate actual occupation and use of the suit property. However, such evidence, standing alone, is insufficient to establish that the occupation has endured for the statutory period of twelve (12) years required to sustain a claim for adverse possession. 3. The burden rested upon the applicant to prove, on a balance of probabilities, that his possession had been open, continuous, exclusive, and uninterrupted for the requisite statutory period. While the applicant deponed in his Supporting Affidavit that "*we*" and "*our family*" had occupied the suit property for many years, he did not call any member of his family or any other independent witness to corroborate that assertion. No evidence was adduced to demonstrate when the occupation commenced or to establish, with certainty, that such occupation persisted continuously for a period exceeding twelve years. In the absence of such corroborative evidence, the Court is unable to conclude that the applicant has discharged the burden of proving the essential temporal element of adverse possession. 4. The Court further notes that at paragraph 4 of his Supporting Affidavit, the applicant depones that **"*unbeknownst to all of us, fraudulently and without following any procedure known in law, the respondent herein got this land registered in her name.*"** That admission raises a fundamental legal question, namely, whether a claim founded on adverse possession can properly coexist with a claim challenging the validity of the respondent's title on the ground of fraud. In the Court's view, the answer must be in the negative. 5. The law is now settled that a claim for adverse possession proceeds on the premise that the registered proprietor holds a valid title, which title is subsequently extinguished by operation of the Limitation of Actions Act upon the adverse possessor satisfying the prescribed statutory requirements. Conversely, a claim founded on fraud challenges the legality and validity of the registered proprietor's title ab initio. The two causes of action are therefore legally inconsistent and mutually exclusive. 6. The Court of Appeal in Mwalimu & 6 Others v Halal & **Another** (Civil Appeal No. E036 of 2023) [2025] KECA 1186 (KLR) emphatically affirmed this position when it stated: **".......*As we have already observed, a claim in adverse possession is incompatible with a claim in fraud.*"** 1. In the same vein, the Environment & Land Court at Nairobi in Njue v Matiabe & 3 others [2023] KEELC 17361 (KLR) rightly emphasised that: **“The moment the person claiming adverse possession contests and impugns the validity of the registered proprietors title, the claim for adverse possession is defeated and thus becomes legally untenable. In such a situation, the claimant is at liberty to pursue a cause of action for fraud or better still, trust, which causes of action are antithetical to and cannot co-exist with a claim for adverse possession.”** 1. Also, from the evidence before the Court, particularly the Certificate of Official Search and the Green Card produced as PExh 1 and PExh 2, it is evident that the respondent became the registered proprietor of land parcel SUBA/KAMWENDA/2144 on 19th January 2015, about 10 years ago. The Green Card further shows that she was the first registered proprietor of the suit property. The Court is called upon to establish when time started running under Section 37 and 38 of the Limitation of Actions Act. In the case of Douglas Mbugua Mungai vs Harrison Munyi [2019] eKLR where this Court held that: “The issue in the Githu case was whether the mere change of ownership of land that is occupied by another under adverse possession would interrupt such person’s adverse possessions. And the answer was correct that where the person in possession has already begun and is in the course of acquiring rights under section 7 of the Limitation of Actions Act, those rights are overriding interests by virtue of section 30(f) of the RLA, to which the new registered purchaser’s title will be subject.” 2. Further, in Titus Kigoro Munyi vs Peter Mburu Kimani [2015] eKLR, the Court of Appeal observed that: **“It must be noted that under section 7 of the Limitation of Action Act, the law relating to prescription affects not only present holders of the title but their predecessors**.” While the Court of Appeal ably stated in Kariuki v Mica (Civil Appeal 196 of 2018) [2025] KECA 31 (KLR) that; **“From the foregoing authorities, it matters not when the appellant became the registered owner. Of importance is whether the respondent was in possession of the suit property and her rights as an adverse possessor had crystallized as at the time the appellant acquired the title. Going by the appellant’s own testimony, the respondent was in occupation of the suit property in 1971 when he bought the land. As such, the acquisition of the title to him in 2001 was subject to the respondent’s overriding interest protected by Section 30(f) of the Registered Land Act (now repealed)”.** 1. Having carefully considered the pleadings, the affidavit evidence, the documentary exhibits produced, the applicable law, and the authorities cited, I am not satisfied that the applicant has discharged the burden of proving his claim for adverse possession on a balance of probabilities. Further, by pleading that the respondent fraudulently procured registration of the suit property, the applicant advanced a cause of action that is legally inconsistent with a claim founded on adverse possession. The two causes of action are mutually exclusive and cannot be maintained simultaneously. 2. In the final analysis I dismiss this claim with no order as to costs . 3. It is so ordered. Judgement dated and delivered at Homa Bay this 21st day of July 2026. **In the presence of;** * + - 1. Obiero for the Plaintiff-Present. 2. No appearance for the Respondent. 3. Court Assistant; Mercy Awino. JUSTICE J.W WANYONYI -JUDGE 21/7/2026