keelc-2025-06778

Hearing 6. The matter was commenced by way of an Originating Summons dated 10th December 2021. After several mentions and compliance steps, the court directed that the summons be treated as a plaint and the replying afidavit as a defence, and that the matter proceed by viva voce evidence. The Plaintifi, Isaac Avuyeko Ongeto, testified as PW1, adopting his filed statement and producing a copy of the register and photographs as exhibits. He stated that he had been in occupation of about 1.5 acres of the suit land since 1969, planting trees, rearing livestock, and making bricks. On cross-examination, he admitted the land was not fenced and that he was not a surveyor, but maintained that he had openly and continuously occupied the land without interruption. 7. The defence case was heard on 10th July 2023 after earlier adjournments. The Defendant, Joseph Otieno Oswayo, testified as DW1, adopting his statement and producing the green card for parcel No. 265. He acknowledged that the Plaintifi was his neighbour and had planted trees on a portion of the land but asserted that this was done with the consent of his late mother, Angeline Alouch, who allowed the Plaintifi to drain a swamp and harvest trees for a limited time. He insisted that the Plaintifi’s occupation was not 1.5 acres but about a quarter acre, and that his stay was not adverse as it was premised on permission. Under cross-examination, the Defendant confirmed he became the registered owner in 2015, inheriting the land from his mother who passed away in 2007.At the close of both cases, the court directed parties to file written submissions. Issues for Determination 8. From a consideration of the pleadings filed, the viva voce evidence adduced at the hearing, and the written submissions placed before this Court, the issues framed for determination is just one to wit; Whether the Applicant has proved his claim for adverse possession over the Suit Land; Who bears the costs of this suit? Legal Analysis 9. The plaintifi’s claim is essentially one of adverse possession. Ingredients of adverse possesion were discussed by the Court of Appeal in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR where the court stated: Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms:“ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6778/eng@2025-07-21 2

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10. 11. The Limitation of Actions Act makes further provision for adverse possession at Section 13 that: “ (1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land. (3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3), the land in reversion is taken to be adverse possession of the land.” Sections 37 and 38 of the Limitation of Actions Act stipulate that if the land is registered under one of the registration acts then the title is not extinguished, but held in trust for the person in adverse possession until he shall have obtained and registered a High Court Order vesting the land in him. Section 37 provides that:(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, to land or easement or land comprised in a lease registered under any of those Acts, may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” 12. In the present case, the Plaintifi testified that he has been in open, peaceful, and uninterrupted occupation of a portion of the Defendant’s land since around 1969. He claimed to have utilized approximately 1.5 acres for farming, tree planting, cattle rearing, and brick making, and produced a copy of the register (PExh 1) showing that the Defendant only became registered proprietor in 2015, long after his settlement. He further produced photographs (PExh 2) of his developments on the land. On cross-examination, he admitted that the land was not fenced and that he had not commissioned a survey, but he maintained that the area he occupies is substantial, identifiable, and separated by a sisal boundary. 13. The Defendant conceded that the Plaintifi had occupied part of the land but insisted that the portion was only about a quarter of an acre, and that the occupation was with his late mother’s permission to drain a swamp and plant trees. However, no documentary evidence of consent was produced, and no independent witness corroborated this claim. Moreover, even if permission were assumed, such license would have lapsed upon the death of the Defendant’s mother in 2007. The Plaintifi’s continued stay thereafter, for over 12 years until the date of filing suit in 2021, became adverse to the Defendant’s title. 14. On the question of the exact portion, the burden was on the Defendant, under Section 109 of the Evidence Act, to disprove the Plaintifi’s assertion of 1.5 acres. 15. No survey report, map, or credible measurement evidence was provided by the Defendant to establish the smaller acreage he alleged. In contrast, the Plaintifi produced photographs showing extensive use of the land and gave consistent oral testimony of occupation beyond mere subsistence use. On a balance https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6778/eng@2025-07-21 3

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of probabilities, the Court is persuaded that the Plaintifi has been in occupation of approximately 1.5 acres, and not the 0.25 acres alleged by the Defendant. 16. It follows that the Plaintifi has satisfied the conditions of adverse possession both in terms of duration and extent of occupation. His possession has been continuous, exclusive, and without the permission of the registered proprietor for a period well exceeding twelve years. The Defendant’s title to the 1.5 acres in dispute is therefore held in trust for the Plaintifi, who is entitled to be registered as the proprietor of that portion. Conclusion and Orders 17. From the foregoing analysis, I find that the Plaintifi has proved on a balance of probabilities that: He has been in open, exclusive, and uninterrupted occupation of the disputed land since 1990; His possession was adverse to the title of the registered owner; The portion of land in his occupation measures 1½ acres; and He has therefore acquired title to that portion by way of adverse possession. Judgment is therefore entered for the Plaintifi/Applicant as follows: A declaration is hereby issued that the Plaintifi, Isaac Avuyeko Ongeto, has acquired ownership by way of adverse possession over 1½ acres out of land parcel Suna Manyatta/2996. The Defendant, Joseph Otieno Oswayo, is directed to transfer the said portion to the Plaintifi within ninety (90) days from the date of this judgment. In default, the Deputy Registrar of this Court shall execute all necessary documents on behalf of the Defendant to vest the said portion in the Plaintifi. The Defendant shall bear the costs of this suit. It is so decided! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST DAY OF JULY, 2025. MOHAMMED N. KULLOW JUDGE Judgment delivered in the presence of: Ms. Apandi for the Defendant N/A for the Plaintifi Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6778/eng@2025-07-21 4

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