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ELCAllowedEnvironment and Land Court Case (OS) No. E002 of 2025· [2026] KEELC 4267 (KLR)

Atieno v Change (Environment and Land Case E002 of 2025) [2026] KEELC 4267 (KLR)

Environment and Land Court
16 June 2026
NYNYAGAKA
2,044 words in judgment
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The bottom line

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A Homa Bay court handed a man ownership of land he openly farmed for over 30 years without the owner ever objecting.

What this practically means

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Executive summary

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The Applicant brought a Summons by Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Sections 7, 17 and 38 of the Limitation of Actions Act, seeking a declaration that he had acquired KANYADA/K/KATUMA-B/46 by adverse possession, that the Respondent's title was extinguished, and an order directing the Land Registrar, Homa Bay to register him as proprietor. He deponed that from 1989 he fenced the vacant suit land with euphorbia, later adding barbed wire and a gate, and openly, peacefully and exclusively farmed and grazed animals on it for over thirty years without permission or interruption. He corroborated this with a neighbour's affidavit, the area chief's statement, photographs, a land search and Green Book. The Respondent, served by substituted service as permitted by the court, neither entered appearance nor filed a response. The court framed a sole issue: whether the Applicant had acquired title by adverse possession. Setting out Sections 7, 13, 17 and 38 of the Limitation of Actions Act and the Court of Appeal's definition in Mtana Lewa v Kahindi Ngala Mwangandi, the court identified the required elements: possession that is adverse, actual, open and notorious, peaceful, exclusive, and continuous for twelve years. On the uncontroverted evidence, all elements were satisfied, and the Respondent's title stood extinguished. The court declared the Applicant owner by adverse possession, directed the Land Registrar to register him forthwith, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the Applicant acquired title to the suit land by adverse possession

Holding

Yes. The Applicant's occupation was open, notorious and exclusive since 1989, exceeding twelve years, and the registered owner never took steps to interrupt it.

Reasoning

The court set out the statutory framework under Sections 7, 13, 17 and 38 of the Limitation of Actions Act and the elements from Mtana Lewa. Evidence showed the Applicant fenced the vacant land in 1989, farmed, grazed animals and enjoyed open, peaceful and exclusive possession for over thirty years. Neighbour and chief's testimony corroborated the occupation. The Respondent, duly served by substitution, did not appear or controvert the claim. Title was accordingly extinguished.

p. 8

Legal principles established

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  • Adverse possession requires possession that is adverse, actual, open and notorious, without force, exclusive, and continuous and uninterrupted for twelve years.

Court orders

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  1. 1.The Applicant has acquired ownership of the suit land known as KANYADA/K/KATUMA-B/46 by way of adverse possession.
  2. 2.The Land Registrar, Homa Bay County is hereby directed to register forthwith the Applicant as the owner of the suit land.
  3. 3.Each party shall bear its own costs.
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules and Sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22)

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, "Atieno v Change (Environment and Land Case E002 of 2025) [2026] KEELC 4267 (KLR)", Case Analysis (2026). Environment and Land Court Case (OS) No. E002 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4267/eng@2026-06-16

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