https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5093

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT HOMA BAY** **ELC CASE NO. E035 OF 2025 (O.S.)** **VITALIS TITUS OUNDA…………….………………….…….…...PLAINTIFF** * **VERSUS –** **MARY OOKO OLUOCH …..………….………….………..……DEFENDANT** **JUDGEMENT** 1. The Judgement of this Honourable Court pertains to a civil suit instituted by way of Originating Summons dated 23/6/2020. The case was premised under the provision Sections 38 of the Limitations of Actions Act, Cap. 22, Order 37 Rule 8 of the Civil Procedure Rules of 2010. 2. The plaintiff in the originating summons prays for orders; 3. *That Applicant be declared to have become entitled by adverse possession to all piece or parcel of land known as Title Number Kabondo/kowidi/45 by measurement 0.7Ha (Suit property)* 4. *That the District Registrar Rachuonyo be ordered to partition, register and transfer a portion of the suit land no. Kabondo/kowidi/45 measuring 0.7Ha to VITALIS TITUS OUNDA, the Applicant herein.* 5. *That the Defendant/Respondent be restrained from selling, transferring and/or interfering with the Plaintiff’s /Applicant’s boundaries and quite possession of the suit property.* 6. *The costs of this Application be provided for.* 7. The Original Summons was based on the following grounds on the face of it and those of the 14 Paragraphed supporting affidavit sworn by VITALIS TITUS OUNDA, the Plaintiff sworn on the same day with the Originating summons where she averred that; 8. I bought land measuring 0.7 Ha parcel No. Kabondo/Kowidi/45 from JOSEPH OOKO OLUOCH also known as AOKO OLUOCH (Deceased) who is the Respondent’s husband in the year 2000 at a total consideration of **Kshs. 96,250/-** and took possession immediately. 9. I built my home on the suit land after taking possession and have lived there since the year 2000. 10. JOSEPH OOKO OLUOCH died before he could transfer my portion of land to me. 11. The said Respondent then succeeded the whole parcel of land and registered the entire parcel no. Kabondo/Kowidi/45 to herself to defeat the interest of the Applicant herein. 12. The Respondent has since neglected and/or refused to transfer to me my portion of the land. 13. I have been in actual, continuous, exclusive and uninterrupted possession and occupation since the year 2000 to date of a portion of the suit premises and exercised on it acts of ownership peacefully, openly, and conspicuously by cultivation, subsistence farming and planting trees. 14. I have never used force to occupy the suit premises neither have I used any forces to continuously and exclusively occupy the premises and I have put considerable investment on the suit premises including tilling extensively, cultivating and even built a house for farm workers on the same. 15. I have made all attempts to have the dispute resolved amicably have failed. 16. In light of the foregoing, I am now entitled to be registered as the owner of a portion of the suit premises in place of the respondent in whose name the said parcel of land is registered. 17. The respondent was served with the summons but did not file any response therefore the matter proceeded ex parte. Hearing proceeded on the 2nd March 2026 where PW1 and PW2 testified. 18. PW 1 plaintiff herein relied on his statement on 21st November 2026 and supporting affidavit which were adopted as evidence in chief. He indicated that he knows **MARY OOKO OLUOCH** the respondent herein. The respondent and her husband sold him 1¾ an acre and it was part of Kabondo/Kowidi/45. He bought the land in the year 2000. Assistant chief and other elders were part of the sale agreement. That on the sale agreement, the land is written as Kabondo/Kowidi/42 yet it was 45. The land is currently registered in the name of the respondent. That he has been farming on it for 25 years and he has even planted potatoes on it. 19. PW1 produced the documents as follows; 20. PExh 1 land sale agreement 21. PExh 2 Certificate of official search 22. PExh 3 green card 23. PExh 4 a-d – Photographs 24. MICHAEL OGWENO AORO testified as PW 2, he relied on his witness statement dated 21st January 2026 which was adopted as evidence in chief. He indicated that he has been a chief of Central Kowili location since March 2021. He knows both the plaintiff and defendant and they are his residents. That the plaintiff has been occupying the land since he took over the office and the defendant has never repossessed the land from the plaintiff. That the parcel number is unknown to him at the moment. He identified the signature of the assistant chief on PExh 1. 25. Both the plaintiff and the defendant’s case was closed and parties were to file submission. The learned Counsel of the plaintiff filed submissions dated 10th April 2026. Counsel relied on the case of GABRIEL MBUI VS MUKINDIA MURANYA (1993) which points out that; ***“Where adverse possession arose out of a sale agreement under which the payment of the purchase price by the adverse possessor was by installment, and the agreement fails, the period of limitation affords an action for adverse possession only after the last and final payment has been made to complete the agreed purchase price. The period of limitation starts to run on the date of the payment of the last instalment of the purchase price.”*** 26. I have carefully read and analyzed all the pleadings herein, both the oral and all the documentary evidence adduced in court, the written submission, the cited authorities made by the Plaintiff and the relevant provisions of the law. As already indicated above, this matter proceeded by way of formal proof as the Defendant was despite of being served with the summons never complied. The Plaintiff’s evidence herein has not been controverted as the matter proceeded as a formal proof. However, it does not mean because the Plaintiff’s suit is uncontroverted, then the Plaintiff’s claim has to be allowed automatically. The Plaintiff has a duty to call sufficient evidence and prove his claim on the required standard of balance of probabilities. See the case of ***“Samson S. Maitai & Another – Versus - African Safari Club Ltd & Another [2010] eKLR”***, where the Court held that: - ***“I have not seen judicial definition of the phrase ‘formal proof’. ‘Formal’ in its ordinary dictionary meaning refers to being ‘methodical’ according to rules of evidence. On the other hand, according to Halsbury’s Laws of England, Vol. 17 Paragraph 260, proof is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption”.*** 1. In this regard, for the Honourable Court to arrive at an informed, reasonable and fair decision, it has farmed three (3) issues for its determination. These are as follows: - 2. ***Whether the*** ***Plaintiff has made out his claim for land adverse possession?*** 3. ***Whether the Plaintiff is entitled to the prayers sought?*** 4. ***Who meets costs of the suit*** 5. The main issue is whether the Plaintiff is entitled to ownership of 0.7Ha of the that parcel of land Kabondo/Kowidi/45 by virtue of land adverse possession. It is trite law that in any suit of this nature, the party who seeks to rely on the existence of a fact or a set of facts must provide evidence that those facts exist. This is what in law is termed as “**the Burden of Proof”** and is captured in the provision of Section 107 of the Evidence Act. Cap 80 laws of Kenya which provides as follows: - **“107. Burden of Proof (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”** 1. The ingredients to be established in a case of adverse possession are well settled as highlighted in the case of ***“Mtana Lewa – Versus - Kahindi Ngala Mwangandi (2015) eKLR”***. Order 37 Rule 4 of the Civil Procedure Rules, 2010 pursuant to which the application was brought provides that: - **“Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable before the judge in chambers, for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgage.”** 1. Adverse possession is a doctrine of law vide which a person obtains legal title to land by reason of actual, open and continuous occupation of it to the exclusion of the registered owner for a prescribed period. In Kenya, the prescribed period is 12 years. The doctrine is anchored on the provisions of Sections 7, 13 and 38 of the Limitation of Actions Act, cap. 22. Section 7 provides that: **“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.”** 1. The provision of Section 13 of the Limitation of Actions Act, Cap. 22 provides: - **(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 this Act referred to as adverse possession), where under sections 9, 10, 11 and 12 of this Act 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 cease 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 purpose of this section, receipt of rent under a lease by a person wrongfully claiming in accordance with section 12 (3) of this Act, the land in reversion is taken to be adverse possession of the land.** 1. The procedure for seeking relief on a claim based on adverse is provided for in Section 38 of the Limitation of Actions Act, Cap 22 and Order 37 of the Civil Procedure Rules, 2010. Section 38 (1) provides: - **(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** **(2) An order made under sub-section (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.** 1. And the provision of Order 37 (1) & (2) Civil Procedure Rules, 2010 provides: - **“(1) An Application under Section 38 of the Limitation of Actions Act shall be made by Originating Summons** **(2) The summons shall be supported by an Affidavit to which a certified extract of the title to the land in question has been annexed.”** 1. The provision of Article 162 (2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act, No. 19 of 2011 and Section 38 of the Limitation of actions Act, Cap. 22 confer jurisdiction on this court to handle claims premised on adverse possession. 2. In the present case, it has been averred that since the year 2000, the Plaintiff had been in an open, quiet, interrupted continuous occupation and possession of 0.7Ha of land/plot known as Kabondo/Kowidi/45 registered in the name of the Defendant. She had been in the said quiet, open, without forced occupation of the suit property or any interruption for over a continuous period of 25 years from the year 2000. 3. The plaintiff has been utilizing the 0.7 Ha of Kabondo/Kowidi/45 for farming and there is also a house seen on the copies of photographic evidence produced as evidence. 4. In the case of ***“Kimani Ruchure – Versus - Swift Rutherfords & Co. Ltd (1980) KLR 10”*** Kneller J held that: ***“The Plaintiffs have 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 persuasion).”*** 1. Similarly, in the case of ***“Gabriel Mbui – Versus - Mukindia Maranya [1993] eKLR”*** adverse possession was defined as:- ***“…….the non-permissive physical control over land coupled with the intention of doing so, by a stranger having actual occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owner’s enjoyment of land for purposes for which the owner intended to use it.”*** 1. In the case of **Public Trustee v Wanduru**, the Court held that where a purchaser takes possession after paying the purchase price, time for purposes of adverse possession begins to run from the date of final payment of the last instalment, because the vendor becomes dispossessed. The same principle was reiterated in the case of **Gabriel Mbui v Mukindia Maranya [1993] eKLR**. 2. The court looked at the land sale agreement produced as PExh 1 dated 30th July 2000; under paragraph 3 it clearly provides for the purchase price as Kshs. 96,250/- in figure while Kshs. 91,250/- in words. Paragraph 5 of the agreement states, “***paid in cash – Kshs. 96,250/-*** and the plaintiff indicated that he took possession in the year 2000. Therefore, time started running from the date of final payment of the last instalment was made. In this case, the same day they entered into the agreement on 30th July 2000. 3. The plaintiff dispossessed the defendant in the year 2000 and by the time this suit was instituted in 2025, the Plaintiff had already occupied the land openly and continuously for well over twelve years from the date of entry. 4. The Court therefore finds and holds that the Plaintiff has proved, on a balance of probabilities, that his occupation of the suit property was open, notorious, exclusive, continuous and adverse to the Defendant’s title for a period exceeding twelve years. 5. Consequently, this court finds and holds that **0.7 Ha** of the Defendant ’s parcel No. KABONDO/KOWIDI/45, was extinguished by operation of law under Section 17 of the Limitation of Actions Act. 6. Thus, the court finds and holds that the Plaintiff herein has proved his case on the required standard of balance of probabilities. Therefore, the end result is that Judgment is hereby entered in favour of the Plaintiff against the Defendant in the following terms: 7. ***A declaration be and is hereby issued that the Plaintiff has acquired title by adverse possession over 0.7Ha of parcel of land known as Kabondo/kowidi/45.*** 8. ***An order be and is hereby issued directing the District Registrar Rachuonyo to partition, register and transfer a portion of the suit land no. Kabondo/kowidi/45 measuring 0.7Ha to VITALIS TITUS OUNDA, the Plaintiff herein.*** 9. ***A permanent injunction be and is hereby issued restraining the Defendant, his agents, servants or anybody claiming under him from selling, transferring and/or interfering with the Plaintiff’s /Applicant’s boundaries and quite possession of the suit property.*** 10. ***Costs of this suit are awarded to the Plaintiff.*** Judgement, dated and delivered via online Microsoft platform at Homa Bay on this 23rd day of July 2026. **In the presence of;** 1. Achilla for the Plaintiff 2. No appearance for the defendant. 3. Court Assistant; Awino. **JUSTICE J.W WANYONYI- JUDGE**