Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELCLOS E022 OF 2024

Ogwa & another v Bondo (Civil Suit E022 of 2024) [2026] KEELC 3475 (KLR)

Environment and Land Court
8 June 2026
3,166 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Migori declared two long-term occupiers owners of land through adverse possession, because the registered owner ignored their claim for over 12 years.

What this practically means

#

Executive summary

#
Ellen Ogot Ogwa and Larius Ogola Okech (applicants) brought an Originating Summons under Order 37 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act against Adoyo Bondo (respondent), seeking a declaration that they were entitled to be registered as proprietors of Title Number Kamagambo/Kanyimach/204; that the respondent held the title in trust for them; rectification of the register; damages; and costs. They deponed that the land was ancestral, originally registered in 1977 in the names of Ochola Raodo and Nyatenya Agayi, who died childless, and that their family had occupied, farmed, fenced and developed it continuously; the 2nd applicant had built a home thereon since 2001. They learned in 2023 that one Adoyo Bondo had been registered on 28/8/89. The respondent did not defend the suit, leaving the applicants' evidence uncontroverted. The court framed one issue: whether the applicants had proved their case on a balance of probabilities. Guided by the Limitation of Actions Act (Sections 7, 13, 17 and 38) and the adverse possession jurisprudence of Mtana Lewa, Chevron and the Mazurui decision, the court held that the applicants proved open, uninterrupted possession of the respondent's land for over twelve years without permission. Judgment was entered for the applicants: declarations of acquisition by adverse possession and trust; registration with rectification of the register in defined shares (approximately 3.8 Ha to the 1st applicant and 0.809 Ha to the 2nd); subdivision at their cost; and the respondent to bear costs and interest. The claim for damages was disallowed for want of proof.

Questions the Court framed

#

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

  1. 1.Whether the applicants have proved their case on a balance of probabilities
  2. 2.Who to bear the costs of the Originating Summons

Key legal issues

#
01

Whether the applicants proved adverse possession of Kamagambo/Kanyimach/204

Holding

Yes. The applicants proved occupation of the respondent's land for over twelve years in an uninterrupted, open manner without permission, and were entitled to registration as proprietors.

Reasoning

The court applied Section 38(1) of the Limitation of Actions Act read with Sections 7, 13 and 17, and the elements drawn from Mtana Lewa and Chevron. The green card and official search showed registration in the defendant's name, initially in Ochola Raodo and Nyatenya Agayi on 17.10.1977. The 1st applicant used the larger portion, farmed, fenced and planted trees; the 2nd applicant built a home in 2001, fenced off roughly two acres and farmed continuously. The respondent did not defend the suit, leaving the applicants' evidence uncontroverted, and the court found the nec vi, nec clam, nec precario standard met on a balance of probabilities.

p. 16
02

Whether damages were payable to the applicants

Holding

No. The claim for damages was disallowed as unproved.

Reasoning

Although the Originating Summons sought damages and their quantum, no evidence was tendered on the loss the applicants suffered by reason of the respondent's registration as owner. The court therefore declined that head of relief and granted only the registration, rectification and trust-related orders.

p. 16

Legal principles established

#
  • Adverse possession requires possession that is neither by force, stealth nor under licence of the owner, and must be adequate in continuity, publicity and extent
  • The burden of proving adverse possession lies on the claimant, who must show open, peaceful possession without the owner's consent for an uninterrupted period of twelve years
  • Where the defendant does not defend the suit, the plaintiff's uncontroverted evidence may be accepted

Court orders

#
  1. 1.A declaration that the Applicants have acquired the land parcel No. Kamagambo/Kanyimach/204 by way of adverse possession and are entitled to be registered as proprietors thereof
  2. 2.A declaration that the Respondent holds the title Number Kamagambo/Kanyimach/204 in trust for the Applicants
  3. 3.The Respondent directed to sign all instruments of transfer in favour of the applicants within 30 days, in default the Deputy Registrar to execute the same
  4. 4.The Land Registrar Migori County ordered to rectify the register by registering the Applicants as proprietors, the 1st Applicant approximately 3.8 Ha and the 2nd Applicant approximately 0.809 Ha (approximately 2 acres)
  5. 5.The applicants to partition and or subdivide the parcel in the respective portions they each claim, with the cost of survey and subdivision met by them
  6. 6.The Respondent to bear the costs of the Summons and interest thereon

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 37 Rules 7, 8, 14-19 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Section 38 of the Limitation of Actions Act

Relief refused

#

Damages to the applicants

No evidence was led proving what damage the applicants suffered by the respondent's registration as owner

p. 16

Costs

The Respondent is to bear the costs of the Summons and interest thereon

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a) The Applicants have acquired the land parcel No. Kamagambo/Kanyimach/204 by way of adverse possession and are entitled to be registered as proprietors thereof.
p. 17final orders - acquisition by adverse possession
The Land Registrar Migori County is ordered to rectify the Land register by registering the Applicants Ellen Ogot Ogwa and Larius Ogola Okech as proprietors of Title Number Kamagambo/ Kanyimach/204
p. 17final orders - rectification of register
e) The Respondent is to bear the costs of these Summons and interest thereon.
p. 18final orders - costs
Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years.
p. 11doctrine of adverse possession
Regarding the claim for damages., it was not proved. There was no evidence led as to what damage the applicants had suffered by the Respondent being registered as owner. I thus disallow it.
p. 16damages refused

Issues in the judgment

#
minor

Delivery date appears to be after 2024 filing and reads '08th day of June 2026', which may be an error for 2025

minor

The 2nd applicant's affidavit depositions use feminine pronouns ('She added') although the deponent is male, suggesting clerical copying errors

minor

The depositions state the two deceased registered owners 'died in 1980 and 1986' whereas the 1st applicant's affidavit earlier says Nyatenya Agayi 'and his wife died in 1996'

minor

The ground card records initial registration in 1977 and registration of Adoyo Bondo on 28/8/89, but the applicants plead possession 'from the date of registration of title in 1977 which was upwards of 35 years from the time Adoyo Bondo got registered', mixing inconsistent possession dates

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ogwa & another v Bondo (Civil Suit E022 of 2024) [2026] KEELC 3475 (KLR)", Case Analysis (2026). ELCLOS E022 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3475/eng@2026-06-08

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