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ELCDismissedELC (OS) Case No. E003 of 2025· [2026] KEELC 5840 (KLR)

Kennedy Owiti Ochieng v Tom Mboya Omolo & another; Land Registrar, Bondo (Interested Party)

Environment and Land Court of Kenya
24 September 2026
6,441 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Siaya court dismissed a man's claim to own land through adverse possession because his family's occupation was permissive, not hostile.

What this practically means

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Executive summary

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The Plaintiff brought an Originating Summons under Sections 7, 37 and 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, claiming he had been in adverse possession of a half portion of land parcel UYOMA/NAYA/2726 for over twelve years and seeking registration as proprietor in place of the deceased registered half-owner, Daniel Omolo, whose sons (the Defendants, sued as administrators) were to be restrained from evicting him. The Originating Summons was converted to a plaint and tried viva voce. The Plaintiff testified that his father bought the land from Daniel Omolo in the 1970s and that the family had occupied and developed rental structures since then. The Defendants, through DW1 (son of the deceased) and DW2 (the deceased's widow), maintained that the Plaintiff's father was permitted to occupy the land on grounds of friendship, first to dry fish and later to live, and that no sale occurred. The court found the alleged purchase unproven - the Plaintiff's evidence on acquisition was secondhand and unsupported by any sale agreement - and held that the father's entry was permissive. Applying Mtana Lewa, Kasuve, Wambugu v Njuguna and Rodgers Mwamboje, the court held that occupation founded on friendship or kinship attracts a rebuttable presumption of permission, and the burden lay on the Plaintiff to prove withdrawal of the licence and twelve years of hostile possession thereafter. The 2024 demand to vacate was held not to evidence an earlier revocation, and even if it were revocation, only months had elapsed before suit. The claim for adverse possession failed, the suit was dismissed in its entirety, and, in the court's discretion under Section 27 of the Civil Procedure Act, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Plaintiff proved adverse possession over the half portion of UYOMA/NAYA/2726

Holding

Claim dismissed; the Plaintiff's father entered permissively under a licence, and the Plaintiff failed to prove the licence was withdrawn more than twelve years before filing, so time never ran.

Reasoning

The court found the alleged purchase unproven: PW1's knowledge was secondhand with no sale agreement or price; PW2's account was hearsay from a sister; PW3 arrived after the events. DW1 and DW2 consistently testified the entry was permissive. Even treating the 2024 demand to vacate as revocation, only months elapsed before suit, far short of twelve years under Sections 7 and 13 of the Limitation of Actions Act.

p. 28
02

Whether occupation founded on friendship attracts a presumption of permission

Holding

Yes; a rebuttable presumption of permissive occupation applies to friends, kin and similar relationships, with the burden on the adverse possession claimant to rebut it.

Reasoning

Relying on Rodgers Mwamboje and Kuloba J in Mbui v Maranya, the court held that African customary practice of accommodating kin and friends on land justifies a rebuttable presumption of consent, protecting innocent occupants and preventing the doctrine of adverse possession from destabilising society. Here the presumption was not merely inferred but confirmed by direct testimony of DW1 and DW2.

p. 26
03

Costs of the suit

Holding

Although costs follow the event under Section 27(1) of the Civil Procedure Act, the court exercised discretion to order each party to bear its own costs.

Reasoning

The court recited Section 27(1), acknowledged the general rule that costs follow the event, but found that on the facts and circumstances of the case it was prudent to let each party bear its own costs of the litigation.

p. 29

Legal principles established

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  • Where occupation arises out of ties of friendship, kinship or a similarly close relationship, there is a rebuttable presumption that the occupation was permitted, and the burden of rebutting it and proving withdrawal of consent lies on the claimant.
  • Possession under a licence becomes adverse only from the date the licence is determined; a demand to vacate is not itself evidence of an earlier withdrawal of consent.

Court orders

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  1. 1.The Plaintiff's suit commenced by way of Originating Summons dated 15th January 2025 is dismissed.
  2. 2.Each party shall bear its own costs of the suit.
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Sections 7, 37 and 38 of the Limitation of Actions Act (Cap 22); Order 37 Rule 7 of the Civil Procedure Rules

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, "Kennedy Owiti Ochieng v Tom Mboya Omolo & another; Land Registrar, Bondo (Interested Party)", Case Analysis (2026). ELC (OS) Case No. E003 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5840/eng@2026-09-24

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