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ELCDismissedELC 23 OF 2020 (O.S.)· [2025] KEELC 488 (KLR)

Risper A. Mulosi v. Defendant (Originating Summons – adverse possession, Kisumu/Kasule/3319)

Environment and Land Court
11 February 2025
SOS. OKONG’O
3,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisumu land buyer lost her adverse possession claim because she couldn't prove which parcel she actually bought and occupied.

What this practically means

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Executive summary

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The Plaintiff brought an Originating Summons dated 11th March 2020 seeking a declaration that she purchased a 0.02 Ha parcel from Christine Awuor Obonyo (deceased), the Defendant's mother, that she held an overriding interest over Title No. Kisumu/Kasule/3319 under Section 28 of the Land Registration Act, that she had acquired the suit property by adverse possession since 1988, and an order vesting the property in her and directing its registration. The Defendant denied the purchase, alleging the sale agreement was fraudulent, that only Plot No. 2766 (already transferred to the Plaintiff) was sold, and that the Plaintiff never occupied the suit property. The court directed the County Land Registrar and Surveyor to visit the property; their report was found unhelpful. At trial, the Plaintiff's attorney gave evidence and produced sale agreements; the Defendant testified and called a licensed surveyor who found the suit property fenced but vacant, with a discrepancy between the Registry Index Map and the ground. The court framed three issues: proof of adverse possession, entitlement to reliefs, and costs. Applying the settled principles in Mombasa Teachers, Gabriel Mbui and Kimani Ruchine, the court held that the Plaintiff's documents were inconsistent - the suit property was created only in 1995 from Kisumu/Kasule/2678, not Plot No. 1255 - and that she had purchased and developed only Plot No. 2766. Her adverse possession claim failed on a balance of probabilities. The suit was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the Plaintiff proved adverse possession of Kisumu/Kasule/3319

Holding

The claim failed; the Plaintiff did not prove entry, open and continuous occupation for 12 years

Reasoning

The court found the Plaintiff's documentary evidence inconsistent: all sale agreements were dated 8th March 1988 despite the claim that the second parcel was bought later, and the suit property was created only in 1995 by subdivision of Kisumu/Kasule/2678, not Plot No. 1255. The Registrar and Surveyor's report was unhelpful, and the Defendant's surveyor found the suit property fenced but vacant. The burden of proof lay on the Plaintiff and was not discharged.

p. 6
02

Whether the suit property was the portion purchased from the deceased

Holding

No; the Plaintiff purchased, occupied and developed only Kisumu/Kasule/2766

Reasoning

The mutation forms showed Plot No. 2766 arose from subdivision of Plot No. 1255 in 1988 while the suit property arose from Kisumu/Kasule/2678 in 1995, so it could not have been sold in 1988 as a portion of Plot No. 1255. The court inferred only one parcel was sold to the Plaintiff.

p. 6
03

Costs

Holding

Costs follow the event; the Plaintiff, having failed, bears the costs

Reasoning

Under section 27 of the Civil Procedure Act costs are discretionary and follow the event. The Plaintiff lost her claim.

p. 6

Legal principles established

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  • A person claiming title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse occupation for an uninterrupted period of 12 years (nec vi, nec clam, nec precario), and bears the burden of proving it

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs to the Defendant

Authorities

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Legislation

  • Land Registration ActSection 28(c), (e) and (j)
  • Civil Procedure ActSection 27

Cases cited (6)

  • Mombasa Teachers Co-operative Savings & Credit Society Limited v. Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Jandu vs. Kirplal & Another
    (1975) EA 225
  • Wambugu vs. Njuguna
    [1983] KLR 173
  • Titus Mutuku Kasuve vs. Mwaani Investments Limited & 4 Others
  • Gabriel Mbui v. Mukindia Maranya
    [1993] eKLR
  • Kimani Ruchine & Another v. Swift, Rutherford Co. Ltd. & another
    [1977] KLR 10
Jurisdiction invoked
Environment and Land Court, Article 162(2)(b) of the Constitution (original jurisdiction over land disputes)

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, "Risper A. Mulosi v. Defendant (Originating Summons – adverse possession, Kisumu/Kasule/3319)", Case Analysis (2025). ELC 23 OF 2020 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/488/eng@2025-02-11

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