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ELCAllowedOriginating Summons dated 22nd January 2022 (E&L Court, Kapsabet)· [2026] KEELC 1806 (KLR)

Kossio & another v Tum (Enviromental and Land Originating Summons E003 of 2022) [2026] KEELC 1806 (KLR)

Environment and Land Court
23 March 2026
1,377 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave two sisters ownership of land they openly occupied since 1964, ruling that long, uninterrupted possession without permission defeats a registered owner's title.

What this practically means

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Executive summary

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The plaintiffs brought an originating summons dated 22nd January 2022 under sections 17, 30 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, seeking a declaration that the proprietor's interest in land parcel Nandi/Sigot/38 (approx. 2.02 Ha) was extinguished, removal of the registered proprietor from the register, registration of the plaintiffs as proprietors by adverse possession, vesting of the land in them, and costs. The defendant was served by substituted service (affidavit of service sworn 8th March 2024) but did not respond. The court directed the originating summons be treated as a plaint and heard by formal proof under Order 37 Rule 19. The 1st plaintiff testified that she and the 2nd plaintiff, her sister, have lived on the land since 1964 without interruption, relying on their identity cards, an official search, a payment receipt and a copy of the register. Applying the three ingredients in Wilson Kazungu Katana, the court found the land registered in another's name, the plaintiffs in open, exclusive, notorious and adverse possession without permission for over twelve years, and the claim over a definite portion of land. It held that the burden of proof is not lessened by formal proof but found the plaintiffs' case cogent on a balance of probabilities. Judgment was entered for the plaintiffs on all orders sought, including costs. The defendant did not participate.

Key legal issues

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01

Whether the plaintiffs proved adverse possession over Nandi/Sigot/38

Holding

All elements of adverse possession were established on a balance of probabilities; the proprietor's interest was extinguished and the land vested in the plaintiffs.

Reasoning

The register (PExhibits 3a and 3c) showed the land registered in a person other than the plaintiffs. The grounds on the originating summons and paragraphs 7 to 10 of the supporting affidavit, plus PW1's testimony of occupation since 1964 without interruption, established open, continuous, notorious and adverse possession exceeding twelve years. The claim was over a definite portion of 2.02 Ha. Formal proof does not lessen the burden, but the plaintiffs' evidence was held cogent.

p. 3
02

Whether the claim was over a definite and identifiable portion of land

Holding

Yes; the claim concerned a definite portion of approximately 2.02 hectares as evidenced by the official search and register.

Reasoning

The court noted the suit land measures approximately Two Decimal Zero Two Hectares as revealed in PExhibits 3a and 3c, aligning with authority that an adverse possession claim must be over a definite portion of land. This satisfied the identification requirement before orders for extinguishment and registration could issue.

p. 3

Legal principles established

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  • Adverse possession requires: land registered in another's name; open and exclusive possession adverse to the owner's title; and occupation in excess of twelve years with dispossession or discontinuance of possession by the owner.
  • Possession must be without the permission of the owner.
  • The burden of proof remains on the party bringing the suit even where the case proceeds by formal proof.

Court orders

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  1. 1.Declaration that the proprietor's interest in land parcel Nandi/Sigot/38 is extinguished
  2. 2.Removal/deletion of the proprietor's name (and successors/administrators) from the register
  3. 3.Registration of the plaintiffs as proprietors of the whole of the suit land by adverse possession
  4. 4.Vesting of the suit land on the plaintiffs
  5. 5.Defendant to pay the plaintiffs' costs of the case

Authorities

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Legislation

  • Limitation of Actions Actsections 17, 30 and 38
  • Civil Procedure Rules, 2010Order 37 Rules 7, 8 and 19

Cases cited (10)

  • Ogada-vs-Mollin
    (2009) KLR 920
  • Bency Chundra vs Kally Prosonno
    (1878) 4 Cal 1327
  • Gathi Mawngi & 4 others vs Joseph Mwai Kabiru & 4 others
    (2005) KLR
  • Great Lakes Transport Company (U) Ltd vs Kenya Revenue Authority
    2009 KLR
  • Wilson Kazungu Katana and 101 others vs Salim Abdalla Bakshein and another
    (2015) eKLR
  • Richard Wefwafwa Songoi vs Ben Munyitwa Songoi
    (2020) eKLR
  • Muthuita vs Wanoe & 2 others
    (2008) 1 KLR (G&F) 1024
  • Raila Amolo Odinga & Another vs IEBC & 2 Others
    (2017) eKLR
  • Kirugi & another vs Kabiya & 3 others
    (1987) eKLR
  • Godfrey Shimonya and 3 others vs Mary Anyango Ameka and another
    (2018) eKLR
Jurisdiction invoked
Sections 17, 30 and 38 of the Limitation of Actions Act (Cap 22) and Order 37 Rules 7, 8 and 19 of the Civil Procedure Rules, 2010

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, "Kossio & another v Tum (Enviromental and Land Originating Summons E003 of 2022) [2026] KEELC 1806 (KLR)", Case Analysis (2026). Originating Summons dated 22nd January 2022 (E&L Court, Kapsabet). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1806/eng@2026-03-23

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