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ELCDismissedELC Case No. E002 of 2021· [2026] KEELC 6085 (KLR)

Charles Lukoye Shiyuka v James Muyanda Nduku & 2 Others

Environment and Land Court
23 September 2026
ANA. Nyukuri
3,083 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court dismissed a 40-year adverse possession claim because the claimant couldn't prove which parcel of land he actually occupied.

What this practically means

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Executive summary

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The plaintiff, Charles Lukoye Shiyuka, sued by Originating Summons dated 19th January 2021 seeking a declaration that he had acquired 0.15 hectares of Parcel No. Butsotso/Shikoti/2648 by adverse possession, an order registering him as proprietor in place of the defendants, an order compelling transfer, a permanent injunction against the defendants, and costs. He claimed he purchased the land in 1972 from the late Adriana Muyanda, took possession, built a home and remained in open, continuous occupation for over forty years, though the title stayed in the deceased's name. The defendants, sons of the deceased who obtained joint registration after Succession Cause No. 34 of 2014, denied his occupation, asserting he lives on Parcel No. Butsotso/Shikoti/14329 registered in his son's name, separated from the suit property by a public access road. They also noted the suit against the 1st defendant, who died during the proceedings, was incompetent for want of substitution. The court found the suit against the 1st defendant had abated. On the merits, the court applied sections 7, 13, 17 and 38 of the Limitation of Actions Act and the established case law on adverse possession. The decisive issue was the location of the plaintiff's occupation: he produced no evidence, and notably no expert report, proving his occupation was on parcel 2648 rather than 14329. The claim failed for want of proof, and the Originating Summons was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiff acquired title to Parcel No. Butsotso/Shikoti/2648 by adverse possession

Holding

No; the plaintiff failed to prove exclusive possession of the suit property as opposed to the neighbouring parcel registered in his son's name

Reasoning

The court accepted the statutory framework under sections 7, 13, 17 and 38 of the Limitation of Actions Act and the requirement of exclusive, open, continuous and uninterrupted possession for 12 years. The pivotal contest was factual: whether the plaintiff occupied parcel 2648 or parcel 14329. The plaintiff produced no evidence, such as an expert's report, locating his occupation on parcel 2648; mutation forms, chief's letter, searches and green cards could not resolve the location question. The claim therefore failed on proof of possession, not on limitation arithmetic.

p. 17
02

Status of the suit against the deceased 1st defendant

Holding

The suit against the 1st defendant abated as he died during the pendency of the suit and no substitution was effected within one year

Reasoning

The court noted the 1st defendant died during the proceedings and no legal representative was appointed or substituted. More than a year having lapsed since his death, the suit against him abated, confining the court's determination to the claims against the 2nd and 3rd defendants.

p. 12

Legal principles established

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  • A claimant seeking title by adverse possession must demonstrate with clarity the date of entry, exclusive and uninterrupted possession for 12 years, and plead and prove the nature of occupation.
  • A suit against a deceased defendant abates where no legal representative is substituted within one year of death.

Court orders

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  1. 1.The suit as against the 1st defendant abated for want of substitution of his legal representative.
  2. 2.The Originating Summons is dismissed with costs to the defendants.
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (implied); claim brought under sections 7, 13, 17 and 38 of the Limitation of Actions Act

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, "Charles Lukoye Shiyuka v James Muyanda Nduku & 2 Others", Case Analysis (2026). ELC Case No. E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6085/eng@2026-09-23

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