Kennedy Owiti Ochieng v Tom Mboya Omolo & another; Land Registrar, Bondo (Interested Party)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff proved adverse possession over the half portion of UYOMA/NAYA/2726
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the Plaintiff's father entered permissively under a licence, and the Plaintiff failed to prove the licence was withdrawn more than twelve years before filing, so time never ran.
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.
Whether occupation founded on friendship attracts a presumption of permission
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.
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.
Costs of the suit
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.
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.
Legal principles established
#- 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
#- 1.The Plaintiff's suit commenced by way of Originating Summons dated 15th January 2025 is dismissed.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.