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ELCDismissedOriginating Summons dated 26th August 2021 (Kisumu)

Ogendo v Miyare (Enviromental and Land Originating Summons E035 of 2021) [2025] KEELC 3994 (KLR)

Environment and Land Court
8 May 2025
3,920 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, widow and personal representative of the late Hesbon Ogendo Njagah, claimed by Originating Summons dated 26th August 2021 to be entitled to land parcel Kisumu/South West Ojola/4565 (0.13Ha), or alternatively 0.05Ha hived off it, by adverse possession. She alleged her husband purchased the land from Philip Miyare Achuch in 2003 and that she and her family occupied and cultivated it openly and uninterrupted for over 18 years. She sought declarations that the Defendant's title was extinguished, that he held the land in trust for her, and orders for cancellation of title and registration, under section 38 of the Limitation of Actions Act. The Defendant denied the sale, contending the Plaintiff's occupation stemmed from an oral licence to erect stalls while Kisian Market was under renovation. The Plaintiff and one witness testified; the Defendant testified in support of his Replying Affidavit. The court found no nexus between the parcel allegedly sold (No.2128) and the suit land, found the sale agreements inconsistent and unsigned by the sole witness, and held that no purchase-based entry was proved. It further found the Plaintiff's entry in 2015 was with the Defendant's permission, that the size of the land claimed was not proved, and that even counting from the last payment in July 2010, the 12-year period had not elapsed by 2021. Holding that adverse possession was not proved, the court dismissed the Originating Summons and ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff is entitled to a portion of 0.05Ha to be hived off land parcel Kisumu/South West Ojola/4565 by reason of adverse possession for over 12 years
  2. 2.Whether the Defendant's proprietary interest in the suit land has been extinguished by adverse possession and whether he holds the title in trust for the Plaintiff
  3. 3.Whether the title issued in the name of Daniel Ochieng Miyare should be revoked and cancelled and the land transferred to the Plaintiff
  4. 4.Whether the costs of the Summons should be provided for and who should pay them

Key legal issues

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01

Whether the Plaintiff's occupation of the suit land was adverse

Holding

Occupation was not adverse; entry was permissive and no purchase was proved

Reasoning

The court found discrepancies in the sale agreements, no nexus between the sold parcel and the suit land, no witness to the 2003 agreement signed, and the Defendant's testimony that the Plaintiff was permitted to erect stalls during market renovation. Possession therefore remained permissive and could not ripen into adverse possession.

p. 6
02

Whether the 12-year limitation period had elapsed

Holding

No - even from the 2010 last payment, 12 years had not elapsed by 2021 when the suit was filed

Reasoning

Taking the Plaintiff's own case at its highest, the agreement of 28th July 2010 stated the sale was closed; counting 12 years from that date, the period would expire in 2022, after the Originating Summons was filed in 2021. Entry in 2015 was with permission.

p. 7
03

Whether the size/identity of the land claimed was sufficiently proved

Holding

The portion claimed was contradictory and unproved

Reasoning

The Originating Summons claimed 0.05Ha in one question but the whole 0.13Ha in the prayers; the sale agreement did not specify the size sold, and the Defendant also lived on the parcel. The portion adversely possessed must be definitely identified with a clear boundary.

p. 7
04

Whether the Defendant's title was extinguished and held in trust

Holding

No, title was not extinguished

Reasoning

Since adverse possession and the statutory period were not established, section 17 of the Limitation of Actions Act was not triggered and no trust in favour of the Plaintiff arose.

p. 8

Legal principles established

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  • A person seeking title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse occupation for an uninterrupted period of 12 years
  • The portion or size of land claimed must be pleaded and proved with definiteness
  • Where entry is based on purchase, time runs from the last payment of the purchase price
  • The Plaintiff bears the burden of proving adverse possession on a balance of probabilities

Court orders

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  1. 1.The Originating Summons is dismissed
  2. 2.Each party to bear own costs of the Originating Summons

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act, Cap 22 (section 38) and sections 107-109 of the Evidence Act

Relief refused

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Declaration that the Plaintiff is entitled to the whole of land parcel No.Kisumu/South West Ojola/4565 by virtue of adverse possession

Adverse possession not proved; entry was permissive and the 12-year period had not elapsed

p. 8

Declaration that the Defendant holds the land in trust and his interest is extinguished

Title not extinguished since the requisite period had not run

p. 8

Revocation/cancellation of the Defendant's title and registration of the Plaintiff as proprietor

No basis to order cancellation absent proof of adverse possession; such a finding would violate the owner's property rights

p. 8

Costs

Each party to bear own costs of the Originating Summons.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that adverse possession has not been proved. Question 1 on the Originating Summons is determined in the negative.
p. 8adverse possession not proved
In the present case the court finds that the Plaintifi/applicant has not proved her case on a balance of probabilities. The case is therefore hereby dismissed. Each party to bear own costs of the Originating Summons.
p. 8disposition and costs
Where entry onto the land is on the basis of purchase, time begins to run from the date of the last payment towards the purchase price.
p. 7when time runs in purchase-based adverse possession
In a claim of adverse possession, the portion/size of the land claimed is a material fact that ought to be pleaded and proved.
p. 7identification of land claimed
Without such proof, a finding in favour of the applicant will amount to violation of the registered owner's right to property.
p. 8property rights of registered owner

Issues in the judgment

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material

Internal contradiction in the Plaintiff's pleadings on the extent of land claimed - 0.05Ha in question (a) versus the whole 0.13Ha in the prayers, noted by the court

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, "Ogendo v Miyare (Enviromental and Land Originating Summons E035 of 2021) [2025] KEELC 3994 (KLR)", Case Analysis (2025). Originating Summons dated 26th August 2021 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3994/eng@2025-05-08

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