Obiero v Akinyi (Sued as representative/administrator of the Estate of Gilbert Ndege Okello and on her own behalf) (Environment & Land Case E001 of 2023) [2025] KEELC 297 (KLR)
The bottom line
#A Kisumu court handed a woman land she had openly occupied for over 14 years, ruling the registered owner's title was extinguished by adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Competency of the Originating Summons for want of a supporting affidavit
The Originating Summons was defective for want of a supporting affidavit, but the defect was cured by the court's direction that it be treated as a plaint and heard by viva voce evidence; the objection was overruled in favour of substantive justice
The court agreed the Originating Summons offended Order 37 Rule 7(2) for lack of a supporting affidavit. However, on 24th July 2023 Asati J directed the OS be treated as a plaint and the replying affidavit as a defence, with the matter to proceed by viva voce evidence. Having been fully heard with each party presenting its case, striking out the suit would sacrifice substantive justice at the altar of technicality, contrary to Article 159(2)(d) of the Constitution. The objection was overruled.
Whether the suit was time-barred or res judicata
Neither objection had merit; a claim for title by adverse possession cannot be time-barred under the Limitation of Actions Act, and prior Tribunal and Nyando Law Court proceedings were nullities for want of jurisdiction and so could not found res judicata
The court observed that no explanation was given as to how a claim seeking title by adverse possession could be time-barred under the Limitation of Actions Act. On res judicata, the Kisumu High Court Civil Appeal No. 181 of 2011 had declared the Land Disputes Tribunal and Nyando Law Court proceedings nullities for want of jurisdiction. Null proceedings cannot constitute a previous hearing and determination by a court of competent jurisdiction, so the objection failed.
Whether the Plaintifi proved adverse possession of Kisumu/Songhor/927
Yes; the Plaintifi occupied Plot No. 927 openly, continuously and without permission from 2008 to the filing of suit in 2023, over 14 years, extinguishing the Defendant's title
It was common ground the Plaintifi was in occupation of a portion of Plot No. 220, now part of Plot No. 927, when the Defendant and her husband acquired the properties in 2008, and that she remained in occupation thereafter without the Defendant's permission. No eviction suit was ever filed against her. Occupation ran from 2008 to 15th January 2023, exceeding 12 years, so under sections 7 and 17 of the Limitation of Actions Act the Defendant's title was extinguished and the Plaintifi acquired the plot by adverse possession.
Whether the Plaintifi proved adverse possession of Kisumu/Songhor/928
No; there was no evidence of the Plaintifi's occupation of Plot No. 928
The Plaintifi claimed to have leased Plot No. 928 to third parties, but no lease document was produced in evidence. Without proof of continuous and uninterrupted occupation of that parcel, the elements of adverse possession were not made out. The claim over Plot No. 928 was therefore dismissed.
Legal principles established
#- A claimant must prove open, continuous and uninterrupted occupation of land for 12 years or more to succeed in adverse possession
- Time under the Limitation of Actions Act ceases to run when the owner takes or asserts his rights or when his right is admitted by the adverse possessor; a title by adverse possession can be acquired to part of a parcel
- Where the registered owner takes no action to recover land for over 12 years, title is extinguished under section 17 of the Limitation of Actions Act and the adverse possessor may be registered under section 38
- Substantive justice prevails over procedural technicalities; a fully heard suit should not be struck out for want of a supporting affidavit where the court has directed viva voce hearing
- Proceedings before tribunals and courts without jurisdiction are nullities and cannot stop time from running for limitation purposes
Court orders
#- 1.Declared that the title held by the Defendant in Kisumu/Songhor/927 has been extinguished by operation of law
- 2.Declared that the Plaintifi has acquired Kisumu/Songhor/927 by adverse possession
- 3.Ordered the Defendant to transfer Kisumu/Songhor/927 to the Plaintifi within thirty (30) days, failing which the Deputy Registrar may execute all documents necessary for the transfer
- 4.Ordered the Plaintifi to meet all expenses and costs associated with the transfer of Kisumu/Songhor/927 into her name
- 5.Dismissed the Plaintifi's claim over Kisumu/Songhor/928
- 6.Ordered that each party shall bear its own costs of the suit
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act read with section 38 of the Limitation of Actions Act (adverse possession claim to land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obiero v Akinyi (Sued as representative/administrator of the Estate of Gilbert Ndege Okello and on her own behalf) (Environment & Land Case E001 of 2023) [2025] KEELC 297 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/297/eng@2025-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.