Otengo v Andango (Land Originating Summons E024 of 2024) [2026] KEELC 3814 (KLR)

2. 6. That pending the hearing and determination of this Originating Summons, there be interim orders in terms of prayer 5 herein. 7. That costs of this application be provided for. In reply to the Plaintifi’s claim, the Defendant filed his Replying Afidavit sworn on 13th March 2025. The evidence 3. Pursuant to directions taken on 19th March, 2025, the suit was disposed of by way of viva voce evidence. PW1 was the Plaintifi who adopted the contents of his Supporting Afidavit as his evidence in chief. 4. The Defendant testified as DW1. He relied on the contents of his Replying Afidavit sworn on 13th March, 2025 and the witness statement dated 15th June, 2025 as his evidence in chief. The Defendant produced exhibits. 5. On cross-examination, the Defendant stated that the Plaintifi was a trespasser on the land. Submissions 6. At the close of the evidence, parties filed submissions on the case. Written submissions dated 16th March, 2026 were filed on behalf of the Plaintifi by Juliet Dima Associates Advocates, while written submissions dated 18th March 2026 were filed on behalf of the Defendant by Olel, Onyango Ingutiah Advocates. Issues for determination 7. 8. The Plaintifi framed 2 issues for determination, namely; a. whether the Plaintifi has acquired title to the suit land by adverse possession. b. whether the Applicant is entitled to injunctive orders restraining the Defendant from interfering with the suit property. The court adopts these as the issues for determination herein. Analysis and determination The 1st issue for determination is whether or not the Plaintifi has acquired title to the suit land by adverse possession. 9. The case of the Plaintifi as pleaded in the Originating Summons and the Supporting Afidavit is that her husband by the name of John Pius Otengo bought land parcel No. KISUMU/OJOLA/682 from the Defendant in the year 1973 and paid the full consideration for it. That he also bought land parcel numbers KISUMU/OJOLA/101 KISUMU/OJOLA/and 680, both of which abut the suit land. 10. That her father-in-law, her husband and four of her children were buried on the suit property when they died. 11. That the suit land is agricultural land hence subject to the provisions of the Land Control Act, and failure to obtain consent of the Land Control Board within 6 months from the date of the sale contract, the sale contract became void and unenforceable. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3814/eng@2026-06-18 2

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12. That after the contract became void, the Plaintifi’s continued occupation of the suit land was adverse to the interest of the registered title holder. That time began to run in favour of the adverse possessor from the 7th month of the life of the sale contract, which was in the middle of the year 1974. 1.3 That the twelfth anniversary of her adverse occupation of the suit land fell due at the close of the year 1986. That she has remained in uninterrupted, open and peaceful occupation of the suit land with the knowledge of the Defendant. That the Defendant’s title became extinguished in 1986. 14. That even though the Defendant’s name remains on the records of the Land Registrar as the registered proprietor of the suit land, he is but a trustee for the Plaintifi and that the court has powers to cancel his title. 15. The Plaintifi adopted the contents of her Supporting Afidavit as her evidence in chief. On crossexamination, she stated that she did not have a copy of the land sale agreement. 16. The Defendant denied that the Plaintifi had had adverse possession of the suit land. Vide his Replying Afidavit sworn on 13th March, 2025, he denied that the Plaintifi’s husband bought the suit land in 1973 or at all. He stated that in the year 1973 he was a child aged about 5 and could not enter into a land sale agreement. 17. He averred that he had always cultivated the suit land without anybody stopping him, not even the Plaintifi. That it is in the recent past that the Plaintifi encroached onto a smaller portion of the suit parcel of land. He averred further that he is the registered proprietor of the land, in active occupation and use thereof by cultivating it and that he has a title deed in respect of the same. 18. The Defendant, who testified as DW1, adopted the contents of his Replying Afidavit and witness statement as his evidence in chief. He had stated in the witness statement that it was only sometime in March, 2024 that the Plaintifi entered onto the suit land, built a structure that looks like a gazebo, cut down and removed aloe vera plants that had been planted by the Defendant’s father, demarcating the boundary of the land and started farming on the land. That when the Defendant objected, the Plaintifi brought the case to court. 19. That it is not true that the Plaintifi has been living on the suit land without interruption. That the place where the Plaintifi has been living is a separate parcel from the Defendant’s land and that it is the Plaintifi who has trespassed onto the Defendant’s property. 20. The Defendant produced documents as exhibits as contained in the list of documents dated 13th March, 2025, namely a certificate of oficial search for the suit land dated 12th September, 2024, copy of title deed for the suit land, copy of National Identity card and photographs. 21. It was submitted on behalf of the Plaintifi that the principles governing adverse possession have been settled in numerous court decisions. Counsel cited Wambugu -vs- Njuguna (1983) KLR 172 where it was held that adverse possession contemplates possession that is open, continuous and consistent with the title of the registered owner and Mtana Lewa -vs- Kahindi Ngala Mwagandi (2015)eKLR where the Court of Appeal explained that adverse possession is essentially a situation where a person takes possession of land and asserts rights over it in a manner inconsistent with the rights of the registered owner. 22 Counsel also relied on Samuel Miki Waweru -vs- Jane Njeri Richu (2007)eKLR where it was held that where a purchaser takes possession of land pursuant to a sale agreement that later becomes void for lack of consent of the Land Control Board, the purchaser's continued occupation may give rise to adverse possession. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3814/eng@2026-06-18 3

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23. Counsel submitted that there was no step taken by the Defendant upon attaining the age of majority to assert ownership or recover possession until the issuance of the title in 2019. 24. That by the time the suit property was registered in the Defendant’s name in 2019, the Plaintifi’s adverse rights had already crystallized and that the Defendant could not acquire a title free from those accrued rights. 25. Counsel submitted further that time runs against the land and not against the owner. 26. On behalf of the Defendant, reliance was placed on the case of Kisumu Civil Application NO.110 of 2016 Richard Wefwafwa Songoi -vs- Ben Munyifwa Songoi [2020]eKLR where the court opined that a person claiming adverse possession must establish; a. on what date he came into possession, b. what was the nature of his possession, c. whether the fact of his possession was known to the other party, SUBPARA d. for how long his possession has continued and SUBPARA e. that the possession was open and undisturbed for the requisite 12 years. 27. Counsel submitted that proof of possession and/or occupation of the subject land for the prescribed period is the heart of a claim of adverse possession. That the Plaintifi failed to prove that she had had exclusive open, continuous, peaceful and uninterrupted possession of the land. 28. That since the Plaintifi trespassed onto the suit land in the year 2024, the requisite 12 years have not elapsed. 29. I have considered the evidence, the pleadings and the submissions placed before court. My findings are that; i. The Plaintifi has not proved the pleading or claim that her husband bought the suit land alongside other parcels of land in the year 1973. She had no land sale agreement or any documents evidencing the sale. She did not know how much the purchase price was. When asked how much the purchase price was on cross-examination, she replied; "I cannot tell how my husband agreed with the seller of the land and how much the purchase price was, but the land was bought” The Plaintifi did not demonstrate that the alleged seller (the Defendant herein) had capacity to sell land. The Defendant produced a copy of his National Identity card No.9893701 as Exhibit P5, which shows that he was born on 9th November, 1968, meaning that in the year 1973 when the sale is alleged to have taken place, he was only aged 5. He denied having sold the land. The Plaintifi called no independent witness to support her claim that the land was bought. The burden of proof was with the Plaintifi, and she did not discharge it. ii. The Plaintifi has failed to prove occupation and/or possession of the suit land. Although the Plaintifi pleaded in the Originating Summons that she, together with her husband, took possession of the suit land in the year 1973 and have remained in open, peaceful https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3814/eng@2026-06-18 4

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and uninterrupted occupation of the suit land, there was no evidence to prove this. There was no surveyor’s report or photographs or independent witness’s evidence to prove this. Possession and/or occupation is a fact that must be proved by evidence. The case of Samuel Kinambu -vs- Mary Mbaisi (2015)eKLR and Gabriel Mbui -vs- Mukindia Muranya (1993)eKLR relied on by the Defendant, held that:"That adverse possession must be established as a fact. It cannot be assumed as a matter of law from mere exclusive possession even if the possession has been for twelve years. In addition, there must be facts showing clear intention to hold adversely and under a claim of right; de facto use and de facto occupation must be shown.” The Defendant produced photographs of the suit land. The same did not show the home of the Plaintifi, the burial sites or the farming activities claimed by the Plaintifi. The photographs were not contested. The Plaintifi admitted on cross-examination that her children have built their homes on parcel number 1010. iii. iv) Having failed to prove occupation and/or possession of the suit land, I find that the Plaintifi failed to prove adverse possession. As submitted by the Defendant, proof of possession and/ or occupation of the subject land for the prescribed period is the heart of a claim of adverse possession. Section 13 of the Limitation of Actions Act provides that (1) A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of Limitation can run (which possession is this Act referred to as adverse possession), where under sections 9, 10, 11 and 12 of this Act 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 a fresh right of action does not accrue unless and until some person again takes adverse possession of the land. For the foregoing reason, I find no basis for granting the relief sought. I find that the Plaintifi is only a trespasser on the suit land onto which she unlawfully entered in the year 2024, as stated by the Defendant, and erected the structure shown in the photograph produced as Exhibit by the Defendant. The second issue for determination is whether the Plaintifi is entitled to injunctive orders restraining the Defendant from interfering with the suit property. 30 The Plaintifi, having failed to prove that she is entitled to the suit land, has no basis for a claim of injunctive orders in respect of the suit land and against the Defendant who is the registered owner. 31. As the registered owner, the Defendant is entitled to the protection of his proprietary rights provided by the Constitution and Statute. 32. I find that the Plaintifi has failed to prove her case on a balance of probabilities. The upshot is that i. the suit is dismissed. ii. costs are awarded to the Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3814/eng@2026-06-18 5

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Orders accordingly. JUDGEMENT DATED AND SIGNED AT KISUMU AND DELIVERED THIS 18TH DAY OF JUNE, 2026 VIRTUALLY THROUGH MICROSOFT TEAMS ONLINE APPLICATION. E. ASATI, JUDGE. In the presence of: Atika: Court Assistant. Cheruiyot h/b for Juliet Dima for the Plaintifi/Applicant. Odhong for the defendant/Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3814/eng@2026-06-18 6

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