Abwoto v Makokha & another (Environment & Land Case 92 of 2019) [2025] KEELC 4280 (KLR)
The bottom line
#A man who bought land in 1973 and occupied it openly for decades won it permanently after a Kenyan court declared the registered owner's title extinguished through adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata by virtue of the prior case HCC No. 184 of 2015 (OS)
The suit is not res judicata; HCC No. 184 of 2015 (OS) was this very case before transfer, and no decision on the merits was demonstrated
The Second Defendant argued that HCC No. 184 of 2015 (OS) was dismissed, triggering section 7 of the Civil Procedure Act. The court found that case was the same matter before transfer, and no dismissal upon hearing and determination on the merits was demonstrated. The effect of the Amended OS was that the claim against the deceased original defendant was deemed withdrawn, so the ingredients of res judicata were not established.
Whether the Plaintiff has established adverse possession over E/Wanga/Lubinu/4223
Adverse possession was established; time ran from final payment of the purchase price on 10th November 1975 and 12 years elapsed well before the Amended OS
Entry under a sale agreement is normally permissive, but once the purchase price is fully paid, possession ceases to be permissive and limitation time begins. The agreement dated 18th October 1973 showed final payment on 10th November 1975. The Plaintiff was in open, continuous and undisturbed occupation, confirmed by the Chiefs and by both Defendants, for over 12 years, so the Second Defendant's title was extinguished.
Whether relief should issue notwithstanding procedural irregularities in the amendment of the OS
The court proceeded to judgment in the interest of justice, treating the claim against the original defendant as withdrawn and the Proposed Respondents as First and Second Defendants
The Amended OS was filed without leave, replaced the deceased defendant with new parties, but both Proposed Respondents participated in the hearing. The court weighed the procedural defect against the interest of justice and the parties' participation, deeming the claim against Rajab Makokha Murambi withdrawn and proceeding on the amended pleadings.
Legal principles established
#- Once a purchaser completes paying the purchase price, his possession of the purchased property is no longer by permission of the seller, and time for adverse possession starts running from the moment of final payment of the purchase price
- Res judicata requires a previous suit between the same parties or those claiming under them, heard and finally determined by a competent court
Court orders
#- 1.Declared that the Plaintiff has established adverse possession in respect of parcel number E/Wanga/Lubinu/4223 and that the Second Defendant's title in respect of the said parcel is extinguished
- 2.Ordered the Land Registrar to register the Plaintiff as the proprietor of parcel number E/Wanga/Lubinu/4223
- 3.Ordered each party to bear own costs
- Jurisdiction invoked
- Original jurisdiction under the Limitation of Actions Act (sections 7, 17 and 38) in respect of a claim for adverse possession of land; matter transferred from the High Court at Kakamega (HCC No. 184 of 2015 (OS))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abwoto v Makokha & another (Environment & Land Case 92 of 2019) [2025] KEELC 4280 (KLR)", Case Analysis (2025). ELC No. 92 of 2019 (Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4280/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.