Tombo v Chunga & 4 others (Environment and Land Case E006 of 2023) [2026] KEELC 4126 (KLR)
The bottom line
#A Siaya court ruled that a man who occupied 10 acres he bought in 1982 now owns the land through adverse possession, even after the seller died.
What this practically means
#Executive summary
#Key legal issues
#Whether adverse possession was established
Yes - the plaintiff occupied the defined portion openly, peacefully and without interruption from 1982, exceeding the statutory 12-year period, and the claim crystallised before the succession proceedings
The court found the plaintiff entered with permission under the 1982 sale but possession became adverse once the sale was complete and the owner made no move to recover the land. Occupation for over 22 years during the deceased's lifetime, unchallenged until after the 2018 confirmation of grant, met the statutory threshold. Failure to object in the succession does not displace the claim.
Whether constructive trust was established
Not determined - unnecessary given the adverse possession finding
The plaintiff framed constructive trust as an overriding interest under section 28 of the Land Registration Act, relying on M'Iinanga on customary trust. Since the adverse possession claim succeeded and the plaintiff was declared entitled to the portion, the court declined to reach the merits of the trust claim.
Whether the counterclaim for injunction and eviction was proved
No - the counterclaim failed because the plaintiff proved adverse possession of the occupied portion
The defendants' counterclaim described the plaintiff as a trespasser and sought a permanent injunction, mandatory eviction orders enforceable by the OCS, and general damages. With adverse possession established, the plaintiff could not be a trespasser; the defendants also conceded they had never sued to evict him.
Admissibility of the survey report photographs/satellite images
Photographs inadmissible for want of a certificate under sections 78A and 106B(4) Evidence Act, but the claim survived on the surveyor's findings and the defendants' non-denial of occupation
Applying Rapando v Ojwang, photographs are electronic records requiring a certificate identifying who took them. None was produced, so the photos were expunged. However, the drawn figure 1(b) of the survey report identified and defined the occupied portion, and the defendants did not deny the occupation itself.
Legal principles established
#- A claim of adverse possession based on a sale agreement is properly maintainable, and time runs from the date of payment of the purchase price and taking possession
- The running of time under adverse possession is cumulative against both the original owner and successors in title, including a deceased owner's estate
- Land adversely possessed must be definitely identified, defined or at least an identifiable portion with a clear boundary
- Photographs as electronic records require a certificate under sections 78A and 106B(4) of the Evidence Act to be admissible
Court orders
#- 1.Counterclaim dismissed with no orders as to costs
- 2.Declaration that the plaintiff is entitled by way of adverse possession of over 12 years to the portion measuring approximately 4 Hectares/10 acres in land parcel No. North Sakwa/Maranda/40
- 3.Order directing the portion identified in Figure 1(b) of the Surveyors report dated 12th May 2024, re-authenticated by the District Land Surveyor in the presence of all parties, be hived off from North Sakwa/Maranda/40 within 90 days
- 4.Land Registrar in charge North Sakwa/Maranda area to register the plaintiff Meshack Ouma Tombo as absolute proprietor of the hived portion without further reference to the Defendants
- 5.Costs of the survey/subdivision order to be borne by the Plaintiff
- 6.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Environment and Land Court Act, Section 13 (adverse possession claim over registered land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tombo v Chunga & 4 others (Environment and Land Case E006 of 2023) [2026] KEELC 4126 (KLR)", Case Analysis (2026). Originating Summons (ELC, Siaya) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4126/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.