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ELCPartially AllowedOriginating Summons dated 23rd April 2024 (Bukhayo/Lupida/645)· [2025] KEELC 5791 (KLR)

Oteba v Matayo; Okello (Interested Party) (Enviromental and Land Originating Summons E015 of 2024) [2025] KEELC 5791 (KLR)

Environment and Land Court (High Court)
30 July 2025
1,686 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 gave a man land he occupied openly for 18 years, but made him pay his own legal costs.

What this practically means

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Executive summary

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George Ouma Oteba filed an Originating Summons on 23rd April 2024 against Barasa Matayo claiming land parcel Bukhayo/Lupida/645 by adverse possession. He testified that he purchased the land in 2006 from Agnes Mutua Musikari Kanda, to whom the Respondent had handed the original title deed and a signed Land Control Board consent application; the underlying transaction was never completed. The Respondent's whereabouts being unknown, substituted service was allowed and the notice published in the Star Newspaper on 4th February 2025, but no response was filed. Robert Humphrey Okello sought to be enjoined as an Interested Party, claiming his late father had also purchased the land from the Respondent in 1975, but never prosecuted the application; the court observed his recourse was to file his own suit against the Respondent. At the ex-parte hearing on 23rd July 2025 the Plaintiff and his witness testified and produced the acknowledgment letter of 19th December 2023, the 1979 consent application and the copy title. Relying on section 38(1) of the Limitation of Actions Act and the Kasuve, Kimani Ruchine and Shume authorities, the court found 18 years of open, continuous and uninterrupted occupation, with the original title deed in the Plaintiff's hands, sufficient to extinguish the Respondent's title. Judgment was entered for the Plaintiff, with directions for cancellation of the Respondent's title and registration of the Plaintiff, and the Plaintiff to bear his own costs.

Key legal issues

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01

Whether the Plaintiff acquired title by adverse possession

Holding

Yes - 18 years of open, continuous and uninterrupted occupation since 2006, evidenced by possession of the original title deed, extinguished the Respondent's title

Reasoning

The Respondent was served by substituted service but filed no reply, so the Plaintiff's evidence stood uncontroverted. He purchased the land in 2006, took possession and established a home, and held the original title deed. Suit filed in 2024 followed 18 years of occupation, well beyond the statutory 12-year period, satisfying the tests in Kasuve, Kimani Ruchine and Shume.

p. 3
02

Whether the Interested Party should be enjoined

Holding

No - his claim lies in a separate suit against the Respondent, subject to limitation of time

Reasoning

The Interested Party claimed his late father had purchased the same land from the Respondent in 1975. The court observed that since the land remains registered in the Respondent's name, an adverse possession claimant's recourse is to file his own suit against the registered owner; the court declined to determine his unprosecuted application.

p. 3

Legal principles established

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  • A claimant in adverse possession must prove exclusive, open possession as of right without interruption for 12 years, either after dispossessing the owner or after discontinuation of possession by the owner
  • Such possession must be without force, stealth or the permission of the owner, and must be open, continuous, peaceful, notorious and with the knowledge of the owner

Court orders

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  1. 1.The Plaintiff has acquired the land parcel No Bukhayo/Lupida/645 by way of adverse possession
  2. 2.The Respondent's right to the land parcel No Bukhayo/Lupida/645 has been extinguished by effluxion of the law
  3. 3.The Plaintiff shall hand over the original title deed to the Land Registrar for cancellation and the Respondent shall within 30 days execute all relevant documents to facilitate registration of the Plaintiff as proprietor
  4. 4.In default, the Land Registrar Busia shall execute all such documents on behalf of the Respondent
  5. 5.The Plaintiff shall meet his own costs of the suit and the registration process

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 37

Cases cited (3)

  • Kasuve -V- Mwaani Investments Ltd & Another
    2004 1 KLR 184
  • Kimani Ruchine -V- Swift Rutherford Company Ltd
    1980 KLR 10
  • Robert Shume & Others -V- Samson Kazungu Kalama
    C.A. Civil Appeal No 32 of 2015 [2015 eKLR]
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act - application to the High Court for an order that the claimant in adverse possession be registered as proprietor

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, "Oteba v Matayo; Okello (Interested Party) (Enviromental and Land Originating Summons E015 of 2024) [2025] KEELC 5791 (KLR)", Case Analysis (2025). Originating Summons dated 23rd April 2024 (Bukhayo/Lupida/645). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5791/eng@2025-07-30

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