Ogake & another v Yala & 2 others (Environment & Land Case 2 of 2016 & 30 of 2018 (Consolidated)) [2025] KEELC 134 (KLR)
The bottom line
#A Busia court ordered a woman to vacate land she claimed by adverse possession because she never testified to prove her claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant proved her claim of adverse possession against the plaintiff and Joseph Ouma Odhiambo
The Originating Summons against Joseph Ouma Odhiambo was struck out (he was a former owner) and the adverse possession claim against the plaintiff was dismissed for want of proof, as the defendant never testified.
The register showed Joseph Ouma Odhiambo was first registered proprietor and transferred to the plaintiff in 2014, so he could not be sued in adverse possession. As to the counter-claim against the plaintiff, the defendant did not attend trial; her pleadings and affidavit remained unproven averments which could not rebut the plaintiff's testimony. Both the OS claim and the counter-claim therefore failed.
Whether the plaintiff proved her claim for eviction and permanent injunction
Yes; as registered proprietor with uncontroverted testimony, the plaintiff was entitled to eviction and a permanent injunction against the defendant.
The plaintiff's registration was undisputed, even by the defendant's own pleadings. Since the defendant did not testify, the plaintiff's evidence that the defendant trespassed and erected structures in 2014 remained uncontroverted. The registered proprietor's rights under section 24(a) of the Land Registration Act entitled her to evict the defendant and restrain re-entry.
Legal principles established
#- Pleadings are not evidence; a party must testify and be cross-examined for averments to found a judgment
- A claim in adverse possession lies only against the current registered proprietor, not a previous owner
- An affidavit filed in support of a counter-claim must still be proved by the deponent being sworn and cross-examined at a full trial
- A registered proprietor is entitled to absolute ownership and to evict a trespasser under section 24(a) of the Land Registration Act
Court orders
#- 1.The Defendant shall within 90 days from the date of the Judgment vacate from the land parcel NO South Teso/Angoromo/6077 or be evicted therefrom in accordance with the relevant law
- 2.The defendant, her family members, agents, servants and any person claiming under her shall be permanently injuncted from re-entering or interfering with the plaintiff's occupation and use of the said land
- 3.The defendant shall meet the plaintiff's costs
- 4.The defendant's counter-claim against Joseph Ouma Odhiambo in Busia ELC case NO 30 of 2018 is struck out with no orders as to costs
- 5.The Defendant's counter-claim against the plaintiff in Busia ELC case NO 30 of 2018 is dismissed
- 6.The defendant shall meet the plaintiff's costs of the dismissed counter-claim
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act (original jurisdiction over land disputes; consolidated by Omollo J on 17th October 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogake & another v Yala & 2 others (Environment & Land Case 2 of 2016 & 30 of 2018 (Consolidated)) [2025] KEELC 134 (KLR)", Case Analysis (2025). Busia ELC Case No 3 of 2016 (lead file), consolidated with Busia ELC Case No 30 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/134/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.