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ELCPartially AllowedOriginating Summons dated 13th October 2023· [2025] KEELC 6907 (KLR)

Wamanje & another v Awori (Enviromental and Land Originating Summons E012 of 2023) [2025] KEELC 6907 (KLR)

Environment and Land Court
7 October 2025
1,751 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave a man land he openly farmed and lived on for 18 years, ruling his occupation legally transferred ownership despite the registered owner's title.

What this practically means

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Executive summary

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Peter Odwory Wamanje and Eugine Victor Wandera filed an Originating Summons under Order 37 of the Civil Procedure Rules and Sections 37 and 38 of the Limitation of Actions Act seeking a declaration that the 2nd Plaintiff had acquired land parcel Samia/Bukangala 'A'/152 by adverse possession. The suit land is registered in the name of Joshua Awori, who was served but filed no response, leaving the plaintiffs' evidence un-rebutted. The 1st Plaintiff deposed that his family had occupied and utilised the land until 2005 when, upon selling a portion to the 2nd Plaintiff, they discovered the land was registered to the Defendant, a non-relative residing some 20 kilometres away who professed ignorance of the parcel. The 2nd Plaintiff testified that he took possession in 2005 and had since occupied, farmed and built on the land. The court applied the Kasuve v Mwaani Investments threshold of exclusive, open, peaceful possession without interruption for 12 years and found the 2nd Plaintiff had occupied the suit land for 18 years by the date of filing. However, the court found the 1st Plaintiff was not a proper party: the sale agreement was over 8 hectares out of parcel Samia/Bukhangala 'A'/156, registered in his father's name, and the suit land measured only 3.4 hectares. The 1st Plaintiff's name was struck out, judgment entered for the 2nd Plaintiff declaring adverse possession, and the Land Registrar Busia directed to cancel the Defendant's title and register the 2nd Plaintiff, with no order as to costs.

Key legal issues

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01

Whether the 2nd Plaintiff established adverse possession of the suit land

Holding

Yes - he occupied the suit land openly, peacefully and without interruption from 2005, exceeding the 12-year limitation period

Reasoning

The 2nd Plaintiff's evidence that he entered the suit land in 2005 and used it for grazing, farming and erecting structures was un-rebutted, the Defendant having filed no response. By the time suit was filed in 2023 he had occupied for 18 years, well beyond the statutory 12 years, and the occupation was open, notorious, peaceful and un-interrupted.

p. 4
02

Whether the 1st Plaintiff was a proper party

Holding

No - his own case showed he sold land out of parcel Samia/Bukhangala 'A'/156, not the suit land

Reasoning

The register showed parcel 156 was registered in the name of the 1st Plaintiff's father, Wamanje Aiyo, who was not sued. The 1st Plaintiff could not claim adverse possession of the suit land and his name was struck out.

p. 3

Legal principles established

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  • To be entitled to land by adverse possession, the claimant must prove exclusive possession openly and as of right without interruption for 12 years
  • Possession must be without force, stealth or permission of the owner

Court orders

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  1. 1.The 1st Plaintiff's name is struck out from the Originating Summons
  2. 2.The 2nd Plaintiff has acquired by way of adverse possession the land parcel No Samia/Bukangala/'A'/152
  3. 3.The Defendant shall within 30 days of being served with this judgment surrender to the Land Registrar Busia the original title for the land parcel No Samia/Bukangala/'A'/152 for cancellation and registration of the same in the name of the 2nd Plaintiff
  4. 4.In the absence of the original title deed, the Land Registrar Busia shall cancel the Defendant's title and the Deputy Registrar shall execute any relevant documents on behalf of the Defendant
  5. 5.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37
  • Limitation of Actions ActSections 37 and 38(1)
  • Land Registration ActSection 28(b)

Cases cited (6)

  • Kasuve Mwaani Investments Ltd & Others
    C.A. Civil Appeal No 35 of 2002 [2004 eKLR]
  • Wanje -v- Saikwa (No 2)
    1984 KLR 284
  • Gitu -v- Ndeete
    1984 KLR 776
  • Kimani Ruchine -v- Swift Rutherford Company Ltd
    1980 KLR 10
  • Robert Shome & Others -v- Samson Kazungu Kalama
    2015 eKLR (C.A. Civil Appeal No 32 of 2015)
  • Mtana Lewa -v- Kahindi Ngala Mwagandi
    C.A. Civil Appeal No 56 of 2014 [2015 eKLR]
Jurisdiction invoked
Order 37 of the Civil Procedure Rules; Sections 37 and 38 of the Limitation of Actions Act; Section 28(b) of the Land Registration Act

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, "Wamanje & another v Awori (Enviromental and Land Originating Summons E012 of 2023) [2025] KEELC 6907 (KLR)", Case Analysis (2025). Originating Summons dated 13th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6907/eng@2025-10-07

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