Venah v Ogony & 3 others (Environment and Land Case 19 of 2023) [2026] KEELC 3078 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant proved adverse possession of 2 acres of the suit property
No - the Applicant failed to prove entry and non-permissive possession, cultivation of the disputed portion, identification of the portion claimed, and knowledge by the registered owner
The court found no evidence of how the Applicant's parents entered the land or with what intention, no proof the trees were planted by the Applicant rather than the Respondents, no survey or measurement supporting the 2-acre claim, and compelling contrary evidence from the Respondents' witnesses, some of whom were the Applicant's own relatives and whose evidence was unshaken in cross-examination.
When time begins to run for adverse possession against a proprietor presumed dead under section 118A of the Evidence Act
Time could only start running when Oloo Moi was presumed dead and a grant of letters of administration issued in 2021, since possession must be with the knowledge of the registered owner
Relying on Wines & Spirits Kenya Limited v George Mwachiru Mwango, the court held that possession must be with the knowledge of the registered owner. Oloo Moi disappeared in the 1930s, before registration, and could never have known of the occupation. Section 80(2) of the Law of Succession Act provides that a grant takes effect only from its date; hence time began running only in 2021, far short of 12 years.
Whether the 2-acre extent of the disputed portion was proved
No - there was no survey report or measurements; the photographs bore markings without measurements
The Applicant produced only photographs with markings indicating an alleged area within a tree plantation. The markings had no measurements, approximate or otherwise, and there was no clear evidence where Plot No. 1931 ended and the claimed portion of the suit property started and ended. Identification of the portion is an integral part of proving adverse possession.
Whether the objection to the joint replying affidavit of the 2nd and 3rd Respondents was sustainable
No - it was raised for the first time in submissions and no law bars parties from jointly swearing an affidavit
The Applicant objected to the joint replying affidavit only in submissions, not at trial. The court held the objection was raised too late and that there is no legal bar to a joint affidavit.
Legal principles established
#- Time for adverse possession cannot run against a registered owner who has no knowledge of the occupation; where the owner disappeared decades before, time only begins to run once he is presumed dead and a legal representative of his estate is appointed
- A claimant for adverse possession of a portion of land must identify and prove the exact portion claimed
- A party may not raise an objection to a jointly sworn replying affidavit for the first time in submissions
Court orders
#- 1.The Originating Summons dated 15th May 2023 is dismissed with costs to the 1st, 2nd and 3rd Respondents
- 2.The Deputy Registrar shall return the original court file for Maseno Senior Principal Magistrate's Court Succession Cause No. 26 of 2017, which was produced as an exhibit in this matter, to that court
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under article 162(2) of the Constitution (adverse possession claim over land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Venah v Ogony & 3 others (Environment and Land Case 19 of 2023) [2026] KEELC 3078 (KLR)", Case Analysis (2026). ELC E019 OF 2023 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3078/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.