Oyaya & 2 others v Oyugi & 4 others (Environment & Land Case 5 of 2023 & Enviromental and Land Originating Summons 14 of 2021 (Consolidated)) [2025] KEELC 201 (KLR)
The bottom line
#A Kisumu court dismissed a woman's adverse possession claim over three plots, awarded the registered owners an injunction, eviction order, and Kshs. 200,000 damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's/Applicant's claim of adverse possession over Plot Nos. 5326, 5327 and 5328 was established
The claim failed. The Applicant failed to prove when she entered the properties, what activities she carried out thereon, and could not identify the specific portions she occupied. Her accounts of when she settled on the land were contradictory (1991, 1960s, 1980).
The court held that the burden was on the Applicant to prove that her residential houses were on the said parcels and when she entered them. In the absence of evidence as to when she entered the suit properties, the court could not determine when time started running for adverse possession. Her contradictory accounts of when she returned from Tanzania further undermined her claim.
Whether the registration of Peter Odiwor Wayodi as proprietor of Plot No. 2589 was fraudulent so as to vitiate the Plaintiffs' title to Plot No. 5326
The court was not satisfied that the registration was fraudulent. The Defendant was not a legal representative of her deceased husband and thus lacked legal capacity to challenge the sale agreement. No evidence showed the parcel was ever recorded in the husband's name during adjudication.
The court found the evidence of Peter Odiwor Wayodi that he purchased the property from Oyugi Odongo more believable. Neither Oyugi Odongo nor his brothers objected to the recording and registration of Plot No. 2589 in the name of Peter Odiwor Wayodi during the land adjudication. Fraud must be distinctly proved and cannot be inferred from the facts.
Whether the Plaintiffs proved trespass by the Defendant on Plot No. 5326
Trespass was proved on a balance of probabilities. The Defendant did not deny that she prevented the Plaintiffs from entering and fencing the property and that she had entered and was carrying out activities thereon without permission.
The Plaintiffs, as lawful registered proprietors of Plot No. 5326, were entitled to unrestricted access and quiet possession. The Defendant's entry without lawful excuse and denial of access constituted trespass, entitling the Plaintiffs to injunctive relief, an order of possession, and damages. However, only nominal/general damages were awarded absent proof of actual damage.
Legal principles established
#- A person seeking to acquire title to land by adverse possession must prove non-permissive or non-consensual, actual open, notorious, exclusive and adverse use/occupation of the land for an uninterrupted period of 12 years (nec vi nec clam nec precario)
- The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession
- Fraud must be specifically pleaded and distinctly proved; it is not allowable to leave fraud to be inferred from the facts
- Registration of a person as proprietor of land confers absolute ownership; such registration can be nullified where established that it was obtained through fraud, mistake, misrepresentation, illegality, procedural impropriety or corruption
- The mere change of ownership of land occupied by another under adverse possession does not interrupt the running of time in favour of that person
Court orders
#- 1.ELC No. 14 of 2021 (O.S), Silper Odete Oyugi v. Charles Omondi Oyaya & 3 others dismissed with costs to the Respondents in the suit
- 2.A permanent injunction restraining the Defendant whether by herself, her agents, servants or other persons claiming through her from trespassing on and/or remaining in, developing, transferring, selling, exchanging, disposing of or dealing with Plot No. Kisumu/Konya/5326 in any other manner whatsoever
- 3.An order compelling the Defendant whether by herself, her agents, servants or any other person claiming through her to vacate Plot No. Kisumu/Konya/5326 or any portion thereof occupied by the Defendant within 60 days from the date hereof in default of which the Plaintiffs shall be at liberty to apply for warrants for her forceful eviction therefrom
- 4.Kshs. 200,000/- being general damages for trespass together with interest at court rates from the date hereof until payment in full
- 5.The costs of the suit in ELC No. 5 of 2023
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (transferred from Winam SPMCC No. 47 of 2018 per order of Ombwayo J. on 18th July 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mkota v Sagiroi (Environment and Land Appeal E017 of 2025) (Environment and Land) [2026] KEELC 1705 (KLR)[2026] KEELC 1705 (KLR)25 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Oyaya & 2 others v Oyugi & 4 others (Environment & Land Case 5 of 2023 & Enviromental and Land Originating Summons 14 of 2021 (Consolidated)) [2025] KEELC 201 (KLR)", Case Analysis (2025). ELC No. 5 of 2023 (formerly Winam SPMCC No. 47 of 2018 and Kisumu ELC No. 25 of 2014) and ELC No. 14 of 2021 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/201/eng@2025-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.