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ELCPartially AllowedELC No. 92 of 2019 (Kakamega)· [2025] KEELC 4280 (KLR)

Abwoto v Makokha & another (Environment & Land Case 92 of 2019) [2025] KEELC 4280 (KLR)

Environment and Land Court
5 June 2025
2,741 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Plaintiff filed an Originating Summons in the High Court at Kakamega in 2015 (HCC No. 184 of 2015 (OS)) claiming adverse possession over land initially described as E/Wanga/Lubinu/766, alleging he and his late brother purchased a portion from Rajab Makokha Murambi in 1973 for KShs 726, fully paid by 10th November 1975. The case was transferred to the Environment and Land Court, then to the subordinate court, and back, acquiring its current number. By an Amended OS filed without leave, the plaintiff substituted the deceased defendant with Saleh Mwembe Makokha (First Defendant), the original defendant's son, and Fedelis Onjari Masayi (Second Defendant), the registered proprietor of E/Wanga/Lubinu/4223, a subdivision of the mother title. The court deemed the claim against the deceased withdrawn and proceeded to judgment since both new defendants participated in the hearing. The court framed three issues: res judicata, adverse possession, and relief. It found no res judicata, since the cited prior case was this very case and no dismissal on the merits was shown. On adverse possession, applying Public Trustee v Wanduru Ndegwa, it held that time runs from final payment of the purchase price, i.e. 10th November 1975, and that over 12 years of open, undisturbed occupation had elapsed, confirmed by chiefs' testimony and both defendants. Judgment was entered for the Plaintiff: a declaration of adverse possession extinguishing the Second Defendant's title, an order directing the Land Registrar to register the Plaintiff as proprietor of E/Wanga/Lubinu/4223, with each party bearing their own costs.

Key legal issues

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01

Whether the suit is res judicata by virtue of the prior case HCC No. 184 of 2015 (OS)

Holding

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

Reasoning

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.

p. 4
02

Whether the Plaintiff has established adverse possession over E/Wanga/Lubinu/4223

Holding

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

Reasoning

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.

p. 5
03

Whether relief should issue notwithstanding procedural irregularities in the amendment of the OS

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.Ordered the Land Registrar to register the Plaintiff as the proprietor of parcel number E/Wanga/Lubinu/4223
  3. 3.Ordered each party to bear own costs

Authorities

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Legislation

  • Limitation of Actions Actsections 7, 17 and 38
  • Civil Procedure Actsection 7

Cases cited (7)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • S. M. Kenni alias Tamanna Sabeb – v- Mst Bibi Sakina
    AIR 1964 SC 1254
  • Parsimi – v- Sukhi
    1993 4 SCC 375
  • Wambugu –v- Njuguna
    (1983) KLR 173
  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR
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

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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, "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.