Omutondo v Ndeda (Enviromental and Land Originating Summons E007 of 2022) [2024] KEELC 6052 (KLR)
The bottom line
#A Kenyan court awarded land to a buyer who occupied it openly for 18 years after paying fully, even without a signed transfer.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established adverse possession of 0.075 Hectares of Bukhayo/Bugengi/7539
Yes - entry under a 2004 land sale agreement, full payment, and open, peaceful, uninterrupted occupation for 18 years beyond the statutory 12 years entitled the plaintiff to registration.
The court applied the Court of Appeal tests in Kasuve v Mwaani Investments, Kimani Ruchine and Wambugu v Njuguna: exclusive, open, peaceful, continuous possession without the owner's consent for 12 years. The plaintiff entered in 2004 under a sale agreement with full purchase price paid, so limitation ran in his favour from 2004. By filing in 2022 he had occupied for 18 years. No evidence of eviction or interruption existed, and the undefended claim was admitted.
Whether adverse possession can be claimed over only a portion of a registered parcel
Yes, a claim to land by way of adverse possession can be made for only a portion of land.
Relying on Githu v Ndeete and Kasuve v Mwaani Investments, the court confirmed that title by adverse possession can be acquired under the Limitation of Actions Act for a part of land, and change of ownership of the land does not interrupt the adverse possessor's possession. The court accordingly ordered sub-division and registration of the 0.075 Hectares portion in the plaintiff's name with the remainder to the defendant.
Legal principles established
#- A claimant seeking title by adverse possession must prove exclusive possession of the land openly, as of right and without interruption for 12 years, and such a claim may be made for only a portion of land.
- A party in occupation and possession of land having paid the full purchase price is a person in whose favour the limitation period can begin to run.
- Where an Originating Summons is undefended, the court may still satisfy itself on applicable precedents before granting relief, and may conclude the defendant admits the unchallenged averments.
Court orders
#- 1.Declaration that the plaintiff has acquired by way of adverse possession a portion of land parcel NO Bukhayo/Bugengi/7539 measuring 0.075 Hectares
- 2.The defendant shall within 45 days of service of the judgment surrender the original title deed to the Land Registrar Busia for cancellation and execute all necessary documents to facilitate sub-division and registration of the 0.075 Hectares portion in the plaintiff's name and the remainder in the defendant's name
- 3.In default, the Deputy Registrar shall upon request execute such documents on behalf of the defendant, and the Land Registrar and County Surveyor Busia shall proceed notwithstanding the absence of the original title deed
- 4.The plaintiff shall meet the costs of the survey and other attendant costs
- 5.As the suit was not defended, the plaintiff shall meet his own costs
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act - application to the High Court (Environment and Land Court) for registration as proprietor by adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omutondo v Ndeda (Enviromental and Land Originating Summons E007 of 2022) [2024] KEELC 6052 (KLR)", Case Analysis (2024). Originating Summons dated 2nd February 2022 (Busia ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6052/eng@2024-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.