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ELCPartially AllowedNot stated in the judgment (Siaya ELC matter arising from Kisumu ELC 58 of 2018 (OS))· [2025] KEELC 4944 (KLR)

Mbuya alias Raphael Odhiambo Oundo v Mwaro & 2 others (Environment and Land Case E008 of 2023) [2025] KEELC 4944 (KLR)

Environment and Land Court
3 July 2025
ADA.E. Dena
1,425 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Siaya court ordered defendants permanently evicted from land acquired through adverse possession, confirming that winning a title still requires follow-through enforcement.

What this practically means

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Executive summary

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The plaintiff had previously obtained judgment in Kisumu ELC Case No. 58 of 2018 (OS) on 22 April 2021, in which Ombwayo J declared that he had acquired 1.4 ha of LR North Ugenya/Ndenga/271 by adverse possession, with a permanent injunction restraining the defendants from interfering with that portion. The defendants allegedly defied the judgment and moved onto the subdivisions North Ugenya/Ndenga/1798 and 1799, which the plaintiff had created after registration. Contempt proceedings followed, with the 1st defendant released on a personal undertaking by Okong'o J on 1 February 2023 and later arrested and jailed for six months, yet the defendants returned to the land. This suit, seeking eviction, was undefended; the defendants never entered appearance, and the matter proceeded to formal proof on 25 February 2025, with no submissions filed despite directions. The court, applying Kirugi v Kabiya, held that an undefended plaintiff must still prove his case on a balance of probabilities. The plaintiff produced the prior judgment order, an enforcement order of 22 November 2022, green cards and official searches establishing his registration as proprietor of the subdivisions, and uncontroverted evidence that the defendants had returned and planted crops. The court found the claim proved and entered judgment for the plaintiff, ordering the permanent eviction of the defendants, their families and workers from parcels 1798 and 1799, with 45 days for voluntary vacation, police assistance from the OCS Ukwala in enforcement, and no orders as to costs. Judgment was delivered virtually at Siaya on 3 July 2025 by Dena J.

Key legal issues

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01

Whether the plaintiff proved his claim in an undefended suit to warrant an eviction order

Holding

The plaintiff proved title derived from the Kisumu ELC 58 of 2018 judgment and the defendants' continued occupation, and judgment for eviction was entered

Reasoning

The court held that even in an undefended suit the plaintiff must formally prove his case on a balance of probabilities. The plaintiff produced the 21st May 2021 order pursuant to the adverse possession judgment, an enforcement order by Okong'o J dated 22/11/2022, green cards and official searches showing his registration as proprietor of the subdivisions, and uncontroverted evidence that the defendants had returned to occupy and cultivate the land. On this evidence the claim was proved and eviction orders issued.

p. 3

Legal principles established

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  • Even in an undefended suit heard by formal proof, the plaintiff bears the burden of proving the case on a balance of probabilities throughout the trial

Court orders

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  1. 1.The Defendants, their families, workers and or anyone working on the suit land on their behalf shall be permanently evicted from the suit land namely LR North Ugenya/Ndega/1798 and 1799
  2. 2.The Defendants shall voluntarily vacate the portion of suit property registered in the plaintiff's name within 45 days of the judgment, failing which the plaintiff shall proceed to execute the judgment
  3. 3.The OCS Ukwala Police Station to assist the plaintiff in enforcement of the orders of the court by providing security
  4. 4.No orders as to costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; suit commenced by plaint following prior judgment in Kisumu ELC 58 of 2018 (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, "Mbuya alias Raphael Odhiambo Oundo v Mwaro & 2 others (Environment and Land Case E008 of 2023) [2025] KEELC 4944 (KLR)", Case Analysis (2025). Not stated in the judgment (Siaya ELC matter arising from Kisumu ELC 58 of 2018 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4944/eng@2025-07-03

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