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ELCDismissedOriginating Summons dated 25th July, 2023

Ajowi (Suing as Legal Representative of Pitalis Ajowi Owuor) v Fredrick Omondi Omollo (Suing as Legal Representative of Paul Ariwa - Deceased) & another (Enviromental and Land Originating Summons E004 of 2023) [2025] KEELC 6874 (KLR)

Environment and Land Court
9 October 2025
2,791 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu dismissed a son's adverse possession land claim because he provided no real proof of occupation and disputed the owners' title.

What this practically means

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Executive summary

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The Plaintiff, John Osango Ajowi, sued by Originating Summons dated 25th July 2023 in his capacity as legal representative of his late father, Pitalis Ajowi Owuor, seeking a declaration of adverse possession over land parcels Kisumu/Karateng’/2624 and 2625 (formerly Kisumu/Karateng’/1616), registration as proprietor, and revocation of the Respondents' registration. He alleged his father occupied the land from about 1973 until his death and burial thereon in 2002, and that the land was fraudulently registered in the name of Paul Ariwa in 1977 and transferred to the 1st Respondent in 2017. The Respondents denied that the Plaintiff or his father ever occupied the suit land. The court identified the questions in the Originating Summons as the issues for determination. It restated the elements of adverse possession under sections 7, 13 and 38 of the Limitation of Actions Act and the requirement of nec vi, nec clam, nec precario possession for 12 years. The court found no evidence of actual occupation: no photographs were produced, the Plaintiff's testimony on the houses was contradicted by PW2, and the Plaintiff disputed the Respondents' title, alleging fraudulent acquisition, which is inconsistent with adverse possession since a claimant must acknowledge the titleholder's title. Further, on the Plaintiff's own evidence, the Defendant entered the land in 2019 as registered owner, fenced it and denied the Plaintiff access, which stopped time from running and terminated any accrued rights. The court held the claim was not proved on a balance of probabilities and dismissed the Originating Summons with costs to the Respondents.

Questions the Court framed

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

  1. 1.Whether the Applicant has been in open, public, continuous and notorious possession and occupation of land parcel numbers Kisumu/Karateng’/2624 and Kisumu/Karateng’/2625 for a period exceeding 12 years
  2. 2.Whether the Respondents’ title to the said parcels became extinguished upon expiry of 12 years from the time the Applicant’s deceased father went into occupation
  3. 3.Whether the Applicant is entitled to be registered as proprietor of the suit parcels by virtue of adverse possession
  4. 4.Whether the registration of the Respondents as absolute owners stands revoked
  5. 5.Who should bear the costs of the Originating Summons

Key legal issues

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01

Whether the Plaintiff and his father were in open, continuous and exclusive possession of the suit land for over 12 years

Holding

Not proved - no evidence of actual possession was exhibited

Reasoning

The court found the plaintiff's testimony contradicted: he said the 1st Defendant demolished the houses on the land in 2019, while PW2 said the houses of the plaintiff and his father still stood on the land. No photographs or other evidence of occupation were produced. The claim by a party suing as administrator of his father's estate, alleging the owner obtained title by fraud, failed on a balance of probabilities.

p. 5
02

Whether a plaintiff alleging fraudulent registration can rely on adverse possession

Holding

No - adverse possession requires acknowledgement of the registered owner's title

Reasoning

The plaintiff claimed the Respondents obtained registration by false representation and trickery. The court held that the doctrine of adverse possession requires the claimant to recognise ownership of the land by the defendant, citing Langat v Byomdo, Yaa v Nyaje and Lukholola v Aluvale. A claimant who disputes the defendant's title cannot simultaneously hinge a claim on that title.

p. 5
03

Whether the Defendant's 2019 entry and fencing terminated any accrued adverse possession rights

Holding

Yes - the owner's effective entry and taking possession stopped time from running

Reasoning

On the plaintiff's own evidence, the Defendant entered the land as registered owner, fenced it, took possession and denied the plaintiff access in 2019. Relying on Kiritu v Kabura, Maungu v Were, Kim Pavey and Githu v Ndeete, the court held that such assertion of right by effective entry stops time running under the Limitation of Actions Act, terminating any rights the plaintiff may have acquired.

p. 6

Legal principles established

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  • A claimant of adverse possession must first acknowledge the ownership of the suit land by the titleholder against whom the claim is made
  • Time ceased to run in favour of an adverse possessor when the registered owner asserts his right by effective entry or legal proceedings

Court orders

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  1. 1.The Originating Summons is dismissed
  2. 2.Costs are awarded to the Respondents

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 sections 7, 13 and 38 of the Limitation of Actions Act (adverse possession claim by Originating Summons)

Relief refused

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Declaration of adverse possession and registration of the Plaintiff as proprietor of Kisumu/Karateng’/2624 and 2625

Plaintiff failed to prove actual possession for 12 years and did not acknowledge the Respondents' title; any possession was terminated by the owner's entry in 2019

p. 6

Revocation of the Respondents' registration as absolute owners

No basis for allowing the prayers having found no adverse possession established

p. 6

Costs

Costs are awarded to the Respondents.

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.

The court finds that the Plaintifi has not proved his claim on a balance of probabilities. The suit is hereby dismissed.
p. 6disposition - dismissal of the Originating Summons
Costs are awarded to the Respondents.
p. 6costs order
I find that the Plaintifi is not entitled to the suit land by virtue of the doctrine of adverse possession.
p. 6failure of adverse possession claim
The meaning or efiect of this action by the Defendant is that any rights acquired by the plaintifi under the doctrine of adverse possession were terminated.
p. 6termination of adverse possession by owner's entry
the occupation has been open, actual, continuous, uninterrupted, peaceful, exclusive and with the knowledge but without the consent or permission of the registered owner for the prescribed period of 12 years.
p. 4elements of adverse possession
the Plaintifis have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion).
p. 4burden and standard of proof in adverse possession

Issues in the judgment

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minor

Contradictory evidence on the existence of houses on the suit land noted by the court itself

minor

Typographical error in the judgment stating the year of the Defendant's entry as 2029 instead of 2019

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, "Ajowi (Suing as Legal Representative of Pitalis Ajowi Owuor) v Fredrick Omondi Omollo (Suing as Legal Representative of Paul Ariwa - Deceased) & another (Enviromental and Land Originating Summons E004 of 2023) [2025] KEELC 6874 (KLR)", Case Analysis (2025). Originating Summons dated 25th July, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6874/eng@2025-10-09

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