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ELCPartially AllowedOriginating Summons dated 23rd July 2020 (as further amended on 3rd March 2023)· [2025] KEELC 8386 (KLR)

Asomba v Ombura & another (Environment and Land Case 29 of 2020) [2025] KEELC 8386 (KLR)

Environment and Land Court
3 December 2025
BOBoaz N. Olao
3,726 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Busia court gave a man the ¾ acre he had lived on for over 30 years, ruling a new owner cannot defeat long occupation.

What this practically means

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Executive summary

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By an Originating Summons dated 23rd July 2020 (further amended 3rd March 2023), Fredrick Wesonga Asomba claimed ¾ of an acre out of land parcel Marach/Elukongo/2166 by adverse possession against Joyce Mmbone Ombura (1st Defendant) and Bonventure Ouma Opondo (2nd Defendant). The suit land, measuring about 2 acres, was a sub-division of the Plaintiff's late father's parcel Marach/Elukongo/1794, first registered in 1999 in the name of the 1st Defendant (purchased with her husband), sold in 2019 to the 2nd Defendant, who was registered as proprietor on 2nd May 2019. The Plaintiff testified that he had occupied the ¾ acre portion - apportioned to him by his father, on which he built his homestead and buried family members - peacefully since around 1990. The 2nd Defendant, who purchased 0.82 hectares (2.026 acres), conceded in cross-examination that he utilised only 1¼ acres and that the Plaintiff occupied the remainder. Applying Section 38(1) of the Limitation of Actions Act and authorities including Kasuve v Mwaani Investments, Githu v Ndeete and Mweu v Kiu Ranching, the court held that the Plaintiff's open, exclusive and uninterrupted possession for well over 12 years extinguished the Defendants' title to the ¾ acre; that the change of ownership did not interrupt possession; and that the Plaintiff's interest was an overriding interest under Section 28(h) of the Land Registration Act, binding the 2nd Defendant who held the portion in trust for him. The claim against the 1st Defendant, no longer the registered proprietor, was dismissed with costs. Judgment was entered for the Plaintiff against the 2nd Defendant with orders for surrender of title, survey, sub-division and registration of the ¾ acre in his name, with the Deputy Registrar to execute documents in default. The 2nd Defendant was ordered to pay the Plaintiff's costs.

Key legal issues

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01

Whether the Plaintiff established adverse possession of ¾ acre of the suit land

Holding

Yes - the Plaintiff was in open, exclusive, peaceful and uninterrupted possession of the ¾ acre well beyond 12 years before filing suit; the Defendants' title thereto stands extinguished

Reasoning

The Plaintiff's occupation since around 1990, with a homestead and family graves, was open and notorious and known to the 2nd Defendant, who conceded in cross-examination that he does not utilise the claimed portion. By the time the suit was filed on 23rd July 2020, the statutory 12-year period had long expired. No eviction action was ever taken against the Plaintiff, and the change of ownership in 2019 did not interrupt possession.

p. 6
02

Whether the adverse possession claim binds a subsequent purchaser of the whole registered parcel

Holding

Yes - the Plaintiff's interest was an overriding interest; the 2nd Defendant holds the ¾ acre in trust for the Plaintiff notwithstanding registration of the whole parcel in his name

Reasoning

Relying on Section 28(h) of the Land Registration Act, rights being acquired under limitation law attach to registered land as overriding interests. Section 25(2) does not relieve a proprietor of trustee obligations. The purchaser, having failed to inspect who was in possession, took subject to the Plaintiff's possession, consistent with Mweu v Kiu Ranching & Farming Co-operative Society Ltd.

p. 7
03

Whether the suit was properly maintained against the 1st Defendant

Holding

No - the claim lies only against the registered proprietor; the 1st Defendant had transferred the suit land and was wrongly impleaded

Reasoning

Section 38(1) of the Limitation of Actions Act contemplates an order that the claimant be registered in place of the person then registered as proprietor. The 1st Defendant ceased to be the registered proprietor upon transfer to the 2nd Defendant and therefore could not be the proper defendant to the adverse possession claim.

p. 5

Legal principles established

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  • A claim for land by adverse possession can only be maintained against the registered proprietor of the land as at the time the suit is filed
  • A change of ownership of land occupied under adverse possession does not interrupt the adverse possession, and time continues to run
  • A claim in adverse possession can be made for only a portion of the land registered in the name of the proprietor
  • Rights acquired by adverse possession are an overriding interest under Section 28(h) of the Land Registration Act, binding on subsequent purchasers

Court orders

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  1. 1.The Plaintiff's suit as against the 1st Defendant is dismissed with costs agreed or taxed
  2. 2.Declaration that the Plaintiff has acquired by way of adverse possession a portion measuring ¾ of an acre out of the land parcel No Marach/Elukongo/2166
  3. 3.The 2nd Defendant shall within 30 days of the delivery of the judgment surrender to the Land Registrar Busia the original title deed for the land parcel No Marach/Elukongo/2166 for cancellation and a portion thereof measuring ¾ of an acre be surveyed and registered in the name of the Plaintiff
  4. 4.The 2nd Defendant shall within the same period execute all the necessary documents to facilitate the registration of the ¾ acre portion in the name of the Plaintiff
  5. 5.The Land Registrar and County Surveyor Busia shall ensure that the ¾ acre is as much as possible the portion occupied by the Plaintiff
  6. 6.In default of execution by the 2nd Defendant, the Deputy Registrar of the Court shall execute all the necessary documents on behalf of the 2nd Defendant
  7. 7.The Plaintiff shall meet the costs of the survey and registration of the ¾ acre in his names
  8. 8.The 2nd Defendant shall meet the Plaintiff's costs of the suit agreed or taxed

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Land Registration ActSection 28(h)
  • Land Registration ActSection 25(1) and 25(2)
  • Land Registration Act (Cap 300 reference)Cap 300

Cases cited (6)

  • Kasuve v Mwaani Investments Ltd
    C.A. Civil Appeal No 35 of 2002 (NBI) [2004 KECA 161 KLR]
  • Wanje v Saikwa (No 2)
    1984 KLR 284
  • Githu v Ndeete
    1984 KLR 776
  • Karnataka Board of Wakf v Government of India & Others
    2004 16 SCC 779
  • Sisto Wambugu v Kamau Njuguna
    C.A. Civil Appeal No 10 of 1982 [1983 KECA 69 KLR]
  • Mweu v Kiu Ranching & Farming Co-operative Society Ltd
    1985 KLR 430
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act - application for registration as proprietor by adverse possession of registered land

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, "Asomba v Ombura & another (Environment and Land Case 29 of 2020) [2025] KEELC 8386 (KLR)", Case Analysis (2025). Originating Summons dated 23rd July 2020 (as further amended on 3rd March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8386/eng@2025-12-03

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