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ELCPartially AllowedOriginating Summons dated 6th June 2022 (Busia ELC)· [2025] KEELC 1361 (KLR)

Okolla v Odembo (Enviromental and Land Originating Summons E016 of 2022) [2025] KEELC 1361 (KLR)

Environment and Land Court
20 March 2025
BOBoaz N. Olao
1,527 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court declared that a man who lived on and farmed his family land for over 40 years became its rightful owner through adverse possession.

What this practically means

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Executive summary

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The Plaintiff, acting in person, filed an Originating Summons dated 6th June 2022 under the Limitation of Actions Act seeking a declaration that land parcel No Samia/Luanda-Mudoma/805 had been extinguished through adverse possession, an order that he be registered as absolute proprietor, directions to the County Land Registrar Busia to effect registration, an injunction against interference, and discharge of any inhibition, caution or restriction. He deposed that he was born on the land in 1964, has lived there peacefully for over 40 years, buried family members there, and that the Defendant, who inherited the Plaintiff's mother upon the death of the Plaintiff's father, fraudulently registered himself as owner. The Defendant was served on 3rd January 2023 but neither entered appearance nor filed a response. The court set out the settled requisites of adverse possession - peaceful, continuous, uninterrupted occupation without the owner's consent and with the owner's knowledge - citing several authorities. It considered whether a prior Land Disputes Tribunal decision in Land Disputes Case No 57 of 2006, upheld on appeal and adopted as a judgment of the Court, which ordered the land sub-divided between the Defendant and one Sophia Nabwire Okola, rendered the suit res judicata. It held the Tribunal had no jurisdiction to order sub-division of registered land, such an order was a nullity, and res judicata did not apply. Accepting the Plaintiff's uncontroverted evidence, the court declared adverse possession, extinguished the Defendant's title, directed registration in the Plaintiff's name with provision for surrender or cancellation of the title deed, lifted subsisting inhibitions, cautions and restrictions, issued a permanent injunction against the Defendant, and made no orders as to costs.

Key legal issues

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01

Requisites of adverse possession

Holding

The Plaintiff proved peaceful, continuous, uninterrupted occupation for over 40 years without the Defendant's consent and with the Defendant's knowledge; his title by adverse possession accrued and the Defendant's registered title was extinguished

Reasoning

The court stated the settled threshold: occupation must be peaceful, continuous, un-interrupted, without the owner's consent and with the owner's knowledge. The Defendant did not enter appearance or respond despite service, so the Plaintiff's uncontroverted evidence - occupation since birth in 1964, burial of family members on the land, and neighbours treating him as owner - was accepted as proving the claim.

p. 3
02

Res judicata arising from the Land Disputes Tribunal decision

Holding

The Tribunal's decision ordering sub-division of the registered land was a nullity for want of jurisdiction and could not sustain a plea of res judicata

Reasoning

The suit land had been the subject of Land Disputes Case No 57 of 2006, upheld on appeal and adopted as a judgment of the Court. The court held that the Tribunal lacked jurisdiction to order sub-division of registered land, and a judgment or order issued without jurisdiction is a nullity that cannot be invoked to plead res judicata. The suit was therefore properly before the court.

p. 3

Legal principles established

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  • A judgment or order issued by a body without jurisdiction is a nullity and cannot found a plea of res judicata

Court orders

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  1. 1.Declaration that the Plaintiff has acquired by way of adverse possession the land parcel No Samia/Luanda-Mudoma/805
  2. 2.The Defendant's title to the said land is extinguished and the same shall be registered in the name of the Plaintiff
  3. 3.The Defendant shall within 14 days of service of the judgment surrender the original title deed to the Land Registrar Busia, and in default the Land Registrar shall cancel it and issue a title deed in the Plaintiff's name
  4. 4.The Deputy Registrar of the Court may execute any documents in favour of the Defendant to facilitate registration
  5. 5.Any orders of inhibition, caution or restriction subsisting on the suit land are lifted
  6. 6.Permanent injunction restraining the Defendant and those acting through him from interfering with the Plaintiff's occupation and use of the suit land
  7. 7.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions Actnot specified

Cases cited (5)

  • Sisto Wambugu -v- Kamau Njuguna
    1983 KLR 172
  • Peter Mbiri Michuki -v- Samuel Mugo Michuki
    2014 eKLR
  • Benjamin Kama Murima & Others -v- Gladys Njeri
    Civil Appeal No 2136 of 1996
  • Mtana Lewa -v- Kahindi Ngala Mwagandi
    [2005 eKLR]
  • Joseph Malakwen Lelei & Another v- Rift Valley Land Disputes Tribunal
    Civil Appeal No 82 of 2006 [2014 eKLR]
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act (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, "Okolla v Odembo (Enviromental and Land Originating Summons E016 of 2022) [2025] KEELC 1361 (KLR)", Case Analysis (2025). Originating Summons dated 6th June 2022 (Busia ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1361/eng@2025-03-20

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