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Court of AppealDismissedCivil Appeal No. E065 of 2026 (formerly Kisumu Civil Appeal No. E143 of 2021)

Fredrick Omondi Okeyo v Mary Were & Douglas Otieno Were

Court of Appeal
25 September 2026
2,325 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that long, uninterrupted occupation of land can extinguish a registered owner's title, even one obtained through succession.

What this practically means

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Executive summary

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The appellant, registered in 2015 as proprietor of parcel South Teso/Angoromo/4276 through succession proceedings following his father's death, appealed against a judgment of the Environment and Land Court at Busia (A. Omollo J, 17 June 2021) which, in consolidated suits, dismissed his claim for injunction, eviction and mesne profits and allowed the respondents' counterclaim for adverse possession. The respondents' father had purchased 0.05 hectares from the appellant's father in 1992 for Kshs 30,000, taken possession, built a homestead, and remained in continuous occupation; the vendor died in 2007 without completing the transfer. The Court of Appeal, sitting as a first appellate court and applying Selle, Jabane and Mbogo v Shah, restated the settled law that a purchaser's possession under a valid sale agreement is permissive and time for adverse possession runs only upon repudiation of the contract or the vendor's failure to complete after final payment, citing Samuel Miki Waweru, Sisto Wambugu, Jandu v Kirpal and Githu v Ndeete. It endorsed the trial judge's finding that time began running around 1999, so that 12 years had lapsed before the 2015 suit, and that the appellant's succession-derived registration could not revive a title already extinguished. The respondents did not appear despite service. The appeal was dismissed with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the finding that the respondents had acquired adverse possession to the suit land and thereby extinguished the appellant's title was supported by the evidence and the law

Key legal issues

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01

Whether the respondents acquired title by adverse possession

Holding

Yes. The respondents entered in 1992 under a sale, time began running when the vendor failed to complete, and 12 years elapsed before the appellant's 2015 registration, extinguishing the original owner's title.

Reasoning

The court restated that possession under a sale agreement is permissive until repudiation or failure to complete after final payment. The seller sub-divided the land in 1995 with intent to transfer, the respondents attended a Land Control Board meeting in 2002, and registration was attempted in 2010. The trial judge found time began running around 1999, so 12 years lapsed before the 2015 suit. The appellant's subsequent succession-derived registration could not interrupt or revive the extinguished title.

p. 4
02

Whether a claimant who disputes the registered owner's title can claim adverse possession

Holding

The appellant's argument that an adverse possession claimant must first acknowledge the registered title was rejected; the claim was sustained on the evidence.

Reasoning

Counsel for the appellant argued, citing Athman Mwalimu, that a claimant alleging fraud in the processing of a title cannot simultaneously claim that title by adverse possession, and that entry with the owner's permission negates adverse possession. The court, applying the settled principles on when a purchaser's possession becomes adverse, found the trial judge's findings on the accrual and running of time unimpeachable and declined to disturb them.

p. 13

Legal principles established

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  • A purchaser of land in possession under a valid sale agreement does not acquire adverse possession until the contract is repudiated or the vendor fails to complete after final payment
  • A change of ownership of land occupied by a person in adverse possession does not interrupt that possession
  • A title subsequently obtained through succession cannot revive a title already extinguished by adverse possession

Court orders

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  1. 1.The appellant's appeal is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court of Kenya at Busia
Civil Case No. 123 of 2015 as consolidated with Busia ELC No. 79 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory first appeal from the Environment and Land Court)

Relief refused

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The appellant's appeal against the finding of adverse possession and cancellation of his registration

The trial court's finding that the respondents' possession became adverse and ran for over 12 years was supported by the evidence and settled law

p. 14

Costs

No order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is also settled law that once a purchaser enters land under a valid sale agreement, their occupation is permissive and time for adverse possession cannot run so long as there is no dispute as regards the said agreement or possession.
p. 7Adverse possession - purchaser in possession under sale agreement
the mere change of ownership of land which is occupied by another person under adverse possession does not interrupt such person’s adverse possession.
Adverse possession - change of ownership does not interrupt possession
Our conclusion therefore is that the appellant’s appeal is not merited and it is hereby dismissed with no order as to costs.
p. 14Final orders - dismissal of appeal
Orders accordingly.
p. 14Final orders - disposition

Issues in the judgment

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minor

Coram lists 'RADIDO. S. O JJ.A' but signature block reads 'RADIDO S.OKIYO'; name rendered consistently as Radido S. Okiyo

minor

Page numbering is internally inconsistent ('Page 14 of 10')

material

Trial judge quoted as finding time began running in 1999, while the appellate narrative states 12 years elapsed in 2004 from 1992 entry

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Fredrick Omondi Okeyo v Mary Were & Douglas Otieno Were", Case Analysis (2026). Civil Appeal No. E065 of 2026 (formerly Kisumu Civil Appeal No. E143 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2040/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.