Otta v Nyumba

Defendant’s title to the suit property had been extinguished by virtue of the Limitation of Actions Act, Chapter 22, Laws of Kenya. 4. The Plainti annexed to her adavit in support of the Originating Summons, among others, a copy of a certicate of ocial search in respect of the suit property, copies of the agreements of sale entered into with the Defendant, and photographs said to be of the suit property. 5. The Defendant was served personally with the Originating Summons. The Defendant did not enter an appearance and, as such, did not defend the Originating Summons. The Originating Summons was heard by way of oral evidence. At the trial, the Plainti adopted her witness statement dated 26th February 2025 as part of her evidence in chief and produced the documents attached to her list of documents of the same date as a bundle as P.EXH.1. The Plainti told the court that she purchased the suit property from the Defendant, but the Defendant refused to transfer the property to her. On examination by the court, the Plainti stated that the name “Otta” was her deceased husband’s name. She stated that she took possession of the suit property in 2006 and had been cultivating it since then. She stated that she was living on a parcel of land adjacent to the suit property. She stated that the Defendant had refused to transfer to her the suit property and was planning to resell it to other parties. She stated that the name of the Defendant was John Otene Nyumba and not John Oteng Nyumba. 6. After the close of the Plainti’s evidence, the Plainti’s advocate informed the court that the Plainti wished to rely entirely on the evidence on record and did not wish to make closing submissions. 7. I have considered the Originating Summons together with the supporting adavit. I have also considered the evidence tendered by the Plainti in support of her case. In Salim v Boyd and Another [1971] E.A 550, it was held that for a claimant of land by adverse possession to succeed, he must prove that he has been in open, continuous and uninterrupted occupation of the land for a period of 12 years or more. In Kimani Ruchine & Another v. Swift, Rutherford Co. Ltd. & another [1977] KLR 10 Kneller J. stated as follows at page 16: “ The Plaintis have to prove that they have used this land which they claim as of right, necvi, nec clam, nec plecario (no force, no secrecy, no evasion) …The possession must be continuous. It must not be broken for any temporary purposes or by any endeavours to interrupt it or by any recurrent consideration.” 8. As I have stated earlier in this judgment, the Defendant did not defend the Originating Summons. This means that the evidence that was tendered by the Plainti as to the circumstances under which she entered the suit property and when she made the entry was not controverted. The averment that the Plainti took possession of the suit property in February 2006 and had remained in possession since then was not disputed. It was also not disputed that the Plainti’s occupation of the property was open, continuous, and uninterrupted. It was also not disputed that the Defendant is the registered owner of the suit property and that, as at the time of ling this suit, the Plainti had occupied the suit property for over 12 years. 9. I am satised that the Plainti has proved her adverse possession claim against the Defendant. I therefore enter judgment for the Plainti against the Defendant as follows; a. I declare that the Plainti has acquired all that parcel of land known as Title No. Kisumu/ Buoye/4172 measuring approximately 0.09 hectares by adverse possession. b. The Deputy Registrar of this court shall execute on behalf of the Defendant all documents necessary to facilitate the transfer of all that parcel of land known as Title No. Kisumu/ Buoye/4172 to the name of the Plainti. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18546/eng@2025-12-17 2

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c. The Plainti shall pay all fees and other statutory charges required for the transfer of the suit property from the Defendant to the Plainti. d. Immediately after registering the Plainti as the owner of all that parcel of land known as Title No. Kisumu/Buoye/4172, the Land Registrar shall place an inhibition on the register of the property inhibiting the registration of any dealings with the property for a period of 3 years from the date of registration of the inhibition. e. Since the suit was not defended, each party shall bear its own costs. DELIVERED AND SIGNED AT KISUMU ON THIS 17TH DAY OF DECEMBER 2025 S. OKONG’O JUDGE Judgment delivered through Microsoft Teams Video Conferencing Platform in the presence of: Mr. Sala for the Plainti N/A for the Defendant Ms. J.Omondi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18546/eng@2025-12-17 3

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