Omondi v Onduru t/a Monao Education Centre

Originating Summons dated 23rd March 2020 she sought for relief principally a declaration that she had acquired an overriding interest in the land comprised in L. R. NO. 29978 or part thereof situate at Kisumu County by reason of having occupation, user and possession of the land with the knowledge of the owner for a period stretching over 12 years. 3. Judith Akinyi Omondi subsequently initiated Kisumu Elc Misc. Application No. 4 OF 2020 vide which she sought for transfer of KSM CMC ELC Case No. 60 OF 2018 from the Magistrate’s court to the Environment and Land Court at Kisumu for hearing and determination. 4. The record of KSM ELC MISC APPL. NO. 4 OF 2020 shows that the application was allowed and vide an order made on19/4/2021 KSM CMC ELC CASE NO 60 of 2018 was transferred to the ELC for hearing and determination. The suit was upon transfer, registered as KSM ELC NO 4 OF 2023. 5. On 18/1/2023 KSM ELC NO. 4 OF 2023 was consolidated with KSM ELC (OS) NO. E10 OF 2020 with ELC NO 4 OF 2023 being the lead le. Upon consolidation Judith Akinyi Omondi became the Plainti and Maurice Odawo Onduru and NLC the Defendants, the pleadings led by Judith Akinyi Omondi were deemed to be the plaint and the pleadings by Maurice Odawo Onduru deemed to be his defence and Counterclaim. The evidence 6. The Plainti failed to adduce evidence and disowned her own pleadings in the case. On 17th February, 2025, Counsel for the Plainti made an application to have the Plainti’s claim discontinued with no orders as to costs. 7. The application for discontinuance of the suit was unopposed hence the court made an order for withdrawal of the Plainti’s suit. The matter proceeded to hearing of the counterclaim as contained in plaint in Kisumu CMC Case No.60 of 2018 which had been transferred from the Chief Magistrate’s court. 8. On behalf of the Defendant, one witness testied as DW1. She testied that Maurice Odawo Okumu, the Defendant though present in court, was sick, diagnosed with dementia hence unable to testify. DW1 relied on the contents of her witness statement dated 21st March, 2024. 9. She produced the statement recorded by Maurice Odawo Okumu dated 26th January, 2018 and produced as exhibits as exhibit D1 to D 19 10. She stated that the Plainti entered the suit land in the year 2016. That they reported to the police, whereupon she was charged with oence of forcible detainer and convicted of the oence. 11. On cross-examination by the Plainti, DW1 stated that before the land was allocated to the Defendant there was a committee that was set and which brought a report that nobody was in occupation of the land. That it was the time they went to fence when the Plainti was constructing the house. That the Defendant got the land in the year 2006 from the government. 12. After the close of the defence case on the counterclaim, the matter was adjourned twice to enable the Plainti time to adduce her evidence in response to the counterclaim to no avail. On 18th June, 2025 Counsel for the Plainti informed court that he had had lengthy discussions with his client and agreed that the Plainti was not oering any evidence and proceeded to close the case of the Plainti in regard to the counterclaim. Submissions 13. The Plainti opted not to le any submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18558/eng@2025-12-18 2

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14. On behalf of the Defendant, written submissions dated 21st October, 2025 were led by the rm of Olel, Onyango, Ingutiah Advocates LLP. Counsel submitted that the Plainti provided no evidence for her proposition that she lived on the suit property for over 30 years. That no evidence was produced to show that the suit land was ancestral land. That it was clear that vide WINAM PMC CR. CASE NO.561 OF 2016, the Plainti was charged upon the complaint of the Defendant with the oence of forcible detainer of the suit property herein wherein she was found guilty and convicted accordingly vide the judgement made on 25th January, 2018. That the judgement was never appealed against. That as it was clear from the said judgement, the Plainti entered the suit land in the year 2015 and by the time the Originating Summons was led in 2020, she had only been on the land for 5 years and there was already a conviction against her over her entry into the land. 15. Relying on the case of Gatimu Kinguru -vs- Muya Gathangi [1976]KLC where it was held that the period of adverse possession must not be broken for 12 years and Wamui Gikwa -vs- Paul Kimani Muraba [2016]eKLR where it was held inter alia that time stops to run when the title holder asserts his title to the land in question, Counsel submitted that the Criminal case against the Plainti herein was an eective claim by the Defendant over the suit land and the fact that it ended in a conviction against the Plainti is a further demonstration that the Plainti never held the suit property peacefully. 16. Counsel urged the court to nd that adverse possession had not been proved. 17. Relying on the provisions of section 24 of the Land Registration Act, Counsel submitted that the Defendant’s claim for permanent injunctive relief and for orders of eviction are well warranted because the Plainti is occupying land that legally belongs to the Defendant. 18. On sanctity of title to land, Counsel relied on the cases of Dr. Joseph Arap Ngok -vs- Justice Moijo Ole Keiwa & 5 Others, Civil Appeal No.Nai 600 of 1997 and Hassan Mohammed Haji -vs- Mohammed Keynan & another [2019]eKLR and submitted that one ought not to lose his title except by following due process. That there is no fraud on the part of the Defendant when it came to acquisition of the suit property. Counsel urged the court to uphold the sanctity of the Defendant’s title. Issues for determination 19. The Plainti having withdrawn her claim as contained in the Originating Summons in case No. E10 of 2020, what was left for the court to determine was the Defendant’s claim as contained in the plaint in CMC Case NO. 60 of 2018 which became the Defence and Counterclaim upon consolidation. The issue that arises for determination is whether or not the Defendant had proved that the Plainti had trespassed onto the suit land and whether the Defendant was entitled to the relief sought in the plaint dated 26th January, 2018. Analysis and determination 20. The Defendant pleaded in paragraph 3 of the plaint that he was at all material times the registered proprietor of the parcel of land known as Land Reference No.29978 registered under title number I.R. NO.176752 measuring 1.338 hectares and situate within Kibos area of Kisumu County. 21. In paragraph 8, he pleaded that in the year 2015, the Plainti encroached upon the suit land and put up a temporary structure thereon and ploughed part of the suit land for planting. That eorts by the Defendant to negotiate with the Plainti to vacate from the suit land have been responded to by the Plainti by violence, threats and intimidation against the Defendant. That the Plainti’s actions on the land have prevented the Defendant from carrying out intended developments on the land, a fact that has caused the Defendant loss. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18558/eng@2025-12-18 3

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22. The Defendant produced documents including certicate of title to show that the land belonged to him. The certicate of title dated 27th May, 2016 shows that the land NO.IR NO.176752 belonged to Maurice Odawo Onduru t/a Monao Education Centre holder of a 99 years lease running from 1st November, 2007. 23. It was common ground that the Plainti had entered and was on the suit land. Her justication for her presence on the suit land was that she had acquired overriding interest by way of adverse possession of the suit land. However, she withdrew the claim of adverse possession. The proceedings of the criminal case produced by the Defendant are evidence that her stay on the land was not peaceful and uninterrupted. Further the legality of her presence and occupation of the land was tested in the Winam PMC Criminal Case No 561 Of 2016 wherein the court found that her presence on the land was unlawful and convicted and sentenced her. 24. Trespass to land is constituted by an unjustied interference with the possession of land. In Black’s Law Dictionary 11th Edition, it is dened as; “ a person’s unlawful entry on another’s land that is visibly enclosed. This tort consists of doing any of the following without lawful justication: (1) entering on to land in possession of another, (2) remaining on the land, or (3) placing or projecting any object on it.” Wineld and Jolowizc on Tort 12th edition at page 359 states that: “ trespass to land is the name given to that form of trespass which is constituted by unjustiable interference with possession of land……it consists of interference with possession.” section 3 of the Trespass Act, Cap 294 Laws of Kenya provides; “ any person who without reasonable excuse enters or remains upon or erects any structure on or cultivates, tills or grazes or permits stock to be on private land without the consent of the occupier thereof shall be guilty of an oence. 25. The elements of the tort of trespass thus include; unauthorized entry onto another’s land, remaining on another’s land without permission, carrying out activities such as cultivating, tilling or even grazing animals, or construction on another’s land without permission or placing /projecting an object over someone’s land without permission. 26. Evidence produced herein show that the Defendant is the owner of the suit land, that the plainti entered the suit land unlawfully and while thereat constructed structures thereon, ploughed the land and remained thereon. The valuation report produced by the Defendant indicated that the developments on the suit land included a temporary residential house erected thereon. This corroborated the testimony of DW1 and the pleadings in the plaint. The court vide the criminal case found that her actions amount to an oence of forcible detainer. It is clear that the plainti trespassed onto the suit land and has persisted in the trespass. 27. On the basis of the evidence placed before court, I nd that the Defendant has proved his claim against the Plainti on a balance of probabilities and that he is entitled to the relief sought. Judgement is hereby entered in favour of the Defendant, Maurice Odawo Onduru, against the Plainti, Judith Akinyi Omondi, on the Counterclaim for: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18558/eng@2025-12-18 4

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a. An order of permanent injunction restraining the Plainti (Judith akinyi Akinyi Omondi), whether acting by herself, her servants, agents or any other person from entering, remaining upon, constructing any structures, ploughing, scooping murram or from generally using or dealing with the suit parcel herein being L. R. No. 29978 registered under title No. IR 176752 situate in Kibos in any way detrimental to the plainti’s interests herein. b. An order of eviction of the Plainti (Judith Akinyi Omondi) from the suit property as follows: the plainti is hereby given sixty (60) days from the date hereof to vacate the suit land and hand over vacant possession thereof to the Defendant in default of which the plainti shall be evicted from the suit land as by law provided. c. Costs of the suit. Orders accordingly. JUDGMENT DATED AND SIGNED AT KISUMU, DELIVERED VIRTUALLY THIS 18TH DAY OF DECEMBER, 2025. E. ASATI, JUDGE. In the presence of: Maureen: Court Assistant. N/A for the Plainti Odhong for the Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18558/eng@2025-12-18 5

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