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ELCDismissedOriginating Summons dated 20th September, 2022· [2025] KEELC 840 (KLR)

Omollo v Paulus & 2 others (Enviromental and Land Originating Summons E021 of 2022) [2025] KEELC 840 (KLR)

Environment and Land Court
27 February 2025
EAE. Asati
2,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A caretaker living on land with the owner's permission cannot claim ownership through adverse possession, no matter how long they stay.

What this practically means

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Executive summary

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By an Originating Summons dated 20th September, 2022, Peter Otieno Omollo claimed to be entitled to land parcel Kisumu/Dago/835 by adverse possession, seeking declarations that his over-12-year occupation had extinguished the 1st Defendant's title, that the Defendant held the land in trust for him, an order for transfer and registration, eviction orders and costs. The suit was disposed of by viva voce evidence; the Plaintiff testified and produced a copy of the register and official search showing the land registered to Henry Omondi Paulus Madere since 14th June 1974. The 1st Defendant did not respond; the 2nd and 3rd Defendants filed Grounds of Opposition contending misjoinder and that the essential prerequisites of adverse possession had not been proved. The court framed a single issue: whether the Plaintiff had obtained title by adverse possession. It restated the doctrine under sections 7, 13 and 38 of the Limitation of Actions Act and the requirement of non-permissive, actual, open, exclusive and uninterrupted occupation for 12 years. The court found that on the Plaintiff's own showing he was placed on the land by the registered owner as caretaker in 1999, meaning his occupation was permissive and thus inconsistent with adverse possession, and that no evidence established the required character of possession. The Plaintiff failed to discharge the burden under sections 107 to 109 of the Evidence Act. The Originating Summons was dismissed with no order as to costs.

Key legal issues

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01

Whether the Plaintiff acquired title to Kisumu/Dago/835 by adverse possession

Holding

No. The Plaintiff entered and remained on the land with the permission of the registered owner as a caretaker, and failed to prove the required possession for the statutory period; the claim was dismissed.

Reasoning

The court restated the elements of adverse possession: land registered in the defendant's name; entry with knowledge but without the owner's permission; and actual, open, continuous, exclusive and uninterrupted occupation for 12 years. The Plaintiff's own affidavit showed he was placed on the land by the owner to take care of it and live on it, which is permissive occupation, and no evidence of the required character of possession or of developments on the land was adduced. He therefore failed to discharge the burden on a balance of probabilities.

p. 5

Legal principles established

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  • A person seeking to acquire title by adverse possession must prove non-permissive or non-consensual, actual, open, notorious, exclusive and adverse occupation for an uninterrupted period of 12 years (nc vi, nec clam, nec precario).
  • Occupation of land with the owner's consent or licence is inconsistent with adverse possession; permission must be determined before time can run.
  • The burden of proving the elements of adverse possession lies on the claimant under sections 107 to 109 of the Evidence Act.

Court orders

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  1. 1.The suit commenced vide the Originating Summons dated September 20, 2022 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Limitation of Actions Actsections 7, 13 and 38
  • Land Actsection 7
  • Land Registration Actsection 28
  • Civil Procedure RulesOrder 37 rule 7
  • Evidence Actsections 107, 108, 109

Cases cited (7)

  • Mombasa Teachers Co-operative Savings and Credit Society Limited v Robert Muhambi Katana & 15 Others
    [2018] eKLR
  • Jandu v Kirplal & another
    (1975) EA 225
  • Wambugu v Njuguna
    [1983] KLR 173; Civil Appeal No 10 of 1982
  • Beatrice Syokau Gathumba v Kenya Airports Authority & 2 Others
    [2012] eKLR
  • Wanje v Saikwa
    Civil Appeal No 72 of 1982 (1984) KLR pg 284
  • Stephen Mwangi Gatunge v Edwin Onesmus Wanjau (Suing in her capacity as the Administrator of the Estate of Kimimngi Wariera Deceased and of Mwangi Kimingi Deceased
    [2022] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagadndi
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act and Order 37 Civil Procedure Rules (adverse possession claim)

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, "Omollo v Paulus & 2 others (Enviromental and Land Originating Summons E021 of 2022) [2025] KEELC 840 (KLR)", Case Analysis (2025). Originating Summons dated 20th September, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/840/eng@2025-02-27

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