Odero v Atieno

his father on the land in 2010, and planted trees and seasonal crops. 4. The Defendant filed a Replying Affidavit dated 8 th May 2025 and witness statements resisting the claim. She contends that the suit land was originally registered in the name of her late husband, Jimbo Okwany, in 1972. Following his demise, a restriction was placed on the property, and she subsequently obtained title via succession in 2022. The Defendant asserts that the Plaintiff's family entered the land in 2001 with the express authority and permission of her late father-in-law, Okwany Walse (who managed the land while the registered owner was a minor). She contends that the Plaintiff's occupation was permissive (under license) rather than adverse, and that the Plaintiff only constructed a permanent house on the parcel in 2016/2022. II) PRELIMINARY MATTERS & INTERLOCUTORY APPLICATIONS 5. During the pendency of the main suit, the Defendant/Applicant (Esther Atieno) filed an application by way of Notice of Motion dated 27 th August 2025 under Certificate of Urgency seeking temporary injunctive relief against the Plaintiff/Respondent (Duncan Otieno Odero). The Defendant alleged that the Plaintiff had engaged in continuous sand excavation and had recently commenced soil excavation for gold extraction, causing extensive environmental degradation, waste, and hazards on the suit parcel GEM/KOWUOR KOTIENO/390. She prayed for orders to restrain the Plaintiff, his agents, or proxies from excavating sand or extracting gold pending the hearing and determination of the main suit. 6. This Court noted the severe environmental damage depicted in the photographic exhibits and issued interim directions to preserve the suit land pending final judgment. The ultimate determination as to proprietary entitlement—including rights to mineral pits and resources on the respective portions—is resolved in the body of this Judgment based on the spatial 2|Page HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 2 of 15

determination of ownership. III) SUMMARY OF PLEADINGS A. The Plaintiff's Pleadings 7. Adverse Possession Claim: The Plaintiff asserts that he has been in quiet, active, exclusive, and continuous possession of an 8-acre portion out of parcel GEM/KOWUOR KOTIENO/390 for over 30 years with the full knowledge of the Defendant. 8. The Plaintiff and his family have actively tilled, cultivated, and developed the suit property, planted eucalyptus trees and bananas, built homesteads, and buried kin on the land without interference. 9. The Plaintiff contends that his entry was not by invitation or license from the Defendant or her predecessor-in-title, rendering his occupation adverse to the Defendant's interests. B. The Defendant's Pleadings 10. The Defendant claims that the Plaintiff's entry onto the land was by virtue of an invitation/permission granted to the Plaintiff's parents by her fatherin-law, Okwany Walse. 11. The Defendant disputes that the occupation spans over 12 or 30 years, alleging entry occurred around 2001 and construction in 2016/2022. 12. The Defendant asserts that she was only registered as proprietor via succession in 2022, and thus adverse possession does not apply against her title. IV. EVIDENCE OF THE PARTIES 13. At trial, the suit proceeded by way of oral evidence. Both parties called three witnesses each and filed their respective trial bundles and written submissions. A. The Plaintiff's Case 3|Page HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 3 of 15

14. PW1 (Duncan Otieno Odero): Adopted his affidavit evidence. He testified that he was born on the suit parcel, where his parents had already established occupation. He produced photographic evidence depicting permanent homesteads, banana plantations, mature eucalyptus trees, and livestock grazing on the property. He also produced a copy of the green card showing the land registered in the Defendant's name. On cross-examination, he confirmed that he built his homestead, buried his father on the land in 2010, and maintained uninterrupted physical possession without seeking or obtaining consent. 15. PW2 (Bernardus Otieno Agumba): Aged 58/60 years, he testified that he has known the Plaintiff since childhood and confirmed that the Plaintiff's family has lived, cultivated, and utilized the suit land openly, peacefully, and continuously for over 30 years without any dispute. 16. PW3 (Jackson Juma Adongo): Aged 51 years, corroborated PW1 and PW2’s testimony, stating that the Plaintiff and his family have used the land as owners for over three decades. B. THE DEFENDANT'S CASE 17. DW1 (Esther Atieno): Testified that parcel 390 was registered in 1972 in the name of her late husband, Jimbo Okwany. She maintained that her father-inlaw, Okwany Walse, permitted the Plaintiff’s family to cultivate a portion of the land in 2001, and that the Plaintiff built his house only in 2022. Under cross-examination, she admitted that she was next in line to succeed her husband since 1987 but only chose to do so in 2021/2022, and conceded that neither she nor her family members have ever been in physical possession or occupation of the suit property. 18. DW2 (Francis Obonyo Okwany) & DW3 (Samwel Omollo Onyuka): Both asserted that entry into the land was authorized in 2001 by Okwany Walse. However, DW2 conceded during cross-examination that the Plaintiff’s 4|Page HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 4 of 15

family had been residing on the suit property prior to 1987 (a period exceeding 38/39 years). V. SUBMISSIONS PRESENTED BY THE PARTIES A. Plaintiff's Submissions (Drawn by Aluoch Odera & Nyauke Advocates) 19. Satisfaction of Elements: The Plaintiff submitted that he has met all statutory requirements under Sections 7 and 38 of the Limitation of Actions Act (Cap 22). Guided by Wilson Njoroge Kamau v Nganga Muceru Kamau (ELC No. 259 of 2017) and M'Mbaoni M'Ithara v James Mbaka (Civil Appeal No. 38 of 2017), adverse possession requires exclusive, continuous, open, notorious, and uninterrupted possession for a period exceeding 12 years. 20. Rebuttal of Defense Assertions: 21. Consent/License: Guided by Farida Zawadi Ali Katana v Nova Holdings Limited (ELC No. 205 of 2021), consent can only be granted by the registered owner. Okwany Walse was never the registered proprietor, making any alleged permission legally invalid. 22. Change of Ownership / Recent Succession: Citing Jonah Muchoki Kariuki v Rahab Wanja Mica (Civil Appeal No. 196 of 2018) (relying on Douglas Mbugua Mungai v Harrison Munyi [2019] eKLR and Githu v Ndeete), the Plaintiff submitted that a change of ownership or transmission of title does not interrupt an ongoing claim of adverse possession. Rights acquired under Section 7 of the Limitation of Actions Act constitute overriding interests under Section 30(f) of the Registered Land Act (RLA) (and Section 28(h) of the Land Registration Act). 23. No Interruption: The Defendant and her witnesses admitted knowing of the Plaintiff's occupation for decades without taking any legal action to assert her rights or evict them prior to this suit. Equity aids the vigilant, not the indolent. B. Defendant's Submissions (Drawn by M.J. Migele & Co. Advocates) 5|Page HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 5 of 15

24. Permissive Entry & Lack of Adversity : The Defendant submitted that the Plaintiff failed to establish how entry was gained. The Defendant's evidence proved that entry was with the authority and consent of Okwany Walse (father-in-law to the Defendant). Occupation under consent cannot be adverse. 25. Failure to Prove Core Ingredients: Citing Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another [2015] eKLR and James Mwangi & Others v Mukinye Enterprises Ltd (cited in Peter Okoth v Ambrose Ochido Andajo & Benedict Odhiambo Oketch [2021] eKLR), the Defendant submitted that a claimant must prove lack of consent, clear possession, and dispossession. Occupying with consent does not dispossess the owner and is not illegal. 26. Recent Development: The Defendant submitted that PW1 admitted constructing his house on the parcel in 2016, failing to establish the requisite 12-year statutory threshold post-construction. VI. ISSUES FOR DETERMINATION 27. Based on the pleadings, oral evidence, and submissions presented by the parties in ELC, the Court distills the following core issues for determination: 28. Whether the Plaintiff’s initial entry and subsequent occupation of the 8-acre portion of parcel GEM/KOWUOR KOTIENO/390 was adverse or by virtue of a valid permissive license. 29. Whether the Plaintiff has satisfied the requisite 12-year statutory period of continuous, open, notorious, and uninterrupted possession as required under the Limitation of Actions Act. 30. Whether the transmission of title to the Defendant via succession in 2022 defeats or interrupts the Plaintiff's accrued claim of adverse possession. 31. Whether the claimed 8-acre portion is sufficiently identifiable to warrant a decree of adverse possession despite the absence of a pre-suit mutation or 6|Page HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 6 of 15

survey. 32. Which party bears the proprietary entitlement and rights over the gold pit and excavation site situated on the suit property. 33. Whether the Plaintiff is entitled to the declarations and orders sought, and who shall bear the costs of the suit. VII. ANALYSIS OF THE LAW AND JURISPRUDENCE 34. Pursuant to Sections 107 and 109 of the Evidence Act (Cap 80), the burden of proof rests on the Plaintiff to establish his claim on a balance of probabilities. Under Sections 7, 13, and 38 of the Limitation of Actions Act (Cap 22), an owner’s title to land is extinguished if they fail to assert their right of action to recover the land within 12 years of continuous adverse possession. Rights acquired under adverse possession constitute overriding interests under Section 28(h) of the Land Registration Act, 2012. 35. The classical elements of adverse possession are encapsulated in the Latin maxim nec vi, nec clam, nec precario—possession acquired without force, without secrecy, and without permission. The claimant must prove actual, physical, open, notorious, exclusive, continuous, and hostile possession (animus possidendi) for a period exceeding 12 years. 36. In evaluating the physical acts of ownership, this Court takes into account the extensive physical developments on the land. The Plaintiff was born on the suit land, built his permanent homestead, buried his father there in 2010, and established banana plantations and mature eucalyptus trees. These open acts are captured in the photographic exhibits. 37. In England & Wales (Buckinghamshire County Council v Moran [1990] Ch 623), Slade LJ established that an adverse possessor must demonstrate both factual possession and the requisite intention to possess (animus possidendi). Physical acts such as erecting permanent structures, enclosing land, or planting long-term trees demonstrate explicit physical control 7|Page HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 7 of 15

sufficient to exclude the world at large, including the paper owner. 38. In South Africa (Margaret Loretta de Haan v Cranberry Bush Property Investments (Pty) Ltd, Case No. 18595/2007), the court observed that visible physical structures, long-term boundary developments, and undisturbed open presence establish open and peaceful possession as of right (possessio civilis). 39. In Uganda (In the Estate of Moses - Administration of the Estate of the Late Lutalo Phoebe v Ojebe Abdalla Bin Coha, SCCA 1/2015), the Supreme Court of Uganda laid down six mandatory criteria: (a) physical possession and control, (b) continuous duration exceeding 12 years, (c) clear animus possidendi, (d) adverse character without consent, (e) open, notorious, and exclusive possession, and (f) dispossession of the paper owner. The Plaintiff’s uncontradicted occupation satisfies all six conditions. 40. The Defendant admitted during cross-examination that neither she nor her family members have ever lived on or been in physical possession of the suit property. DW2 further admitted that the Plaintiff’s family was on the land prior to 1987. 41. The Defendant’s claim of permissive entry granted in 2001 by Okwany Walse fails as a matter of law. Okwany Walse was never the registered proprietor. As held in Farida Zawadi Ali Katana v Nova Holdings Limited [2021] eKLR, a defense of permissive entry cannot stand if the alleged grantor lacked registered legal authority over the property. Furthermore, as settled in Bobanex v Registered Trustees of the Archdiocese of Dar es Salaam (Court of Appeal of Tanzania), while permissive entry prevents time from running, long user accompanied by open hostile acts—such as constructing permanent homes and burying family members—extinguishes initial permission and asserts an adverse claim to the knowledge of the owner. 42. In Kimani Ruchire v Swift Rutherfords & Co. Limited (1980) KLR 10 at 8|Page HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 8 of 15

page 16 letter B, Kneller J. held that the Plaintiffs have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no permission), that the Plaintiff must show that the owner had knowledge (or the means of knowing, actual or constructive) of the possession or occupation, and that possession must be continuous and must not be broken for any temporary purposes or any endeavors to interrupt it by way of recurrent consideration. 43. Justice Kuloba J. (as he then was) in Nairobi Civ No. 283 of 1990 Gabriel Mbui v Mukindia Maranya [1993] eKLR held that the adverse character of the possession must be established as a fact. It cannot be assumed as a matter of law from mere exclusive possession, even if the mere possession has been for twelve or more years. In addition, there must be facts showing a clear intention to hold adversely and under a claim of right. That implies de facto use, and de facto occupation must be shown. 44. Additionally, the Defendant's registration of title via transmission in 2022 does not reset the clock. In Peter Gichuka Wangohi v Juliah Wambui Muchina (CA No. 65 of 2016) and Jonah Muchoki Kariuki v Rahab Wanja Mica (CA No. 196 of 2018), the Court of Appeal confirmed that transmission upon death does not interrupt time that has already accrued under Section 7 of the Limitation of Actions Act. 45. As to whether the mere change of ownership of land that is occupied by another under adverse possession would interrupt such person’s adverse possession, the answer in Douglas Mbugua Mungai v Harrison Munyi [2019] eKLR is that under Section 7 of the Limitation of Actions Act, those rights are overriding interests by virtue of Section 30(f) of the RLA, to which the new registered purchaser’s title will be subject. The new owner takes title subject to the crystallized overriding interests of the adverse possessor. 46. It is instructive to note that under Section 7 of the Limitation of Actions Act, 9|Page HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 9 of 15

the law relating to prescription affects the former as well as the present title holder. 47. An adverse possessor in ‘actual occupation’ at the time of a first registration or disposition may have an overriding interest. This was established in Re Chowood’s Registered Land [1933] Ch 574. Overriding interests, though not registered at the Land Registry, still bind a party who acquires land that is subject to such interests. In essence, the registered proprietor’s estate is not paramount where any part of the proprietor's parcel was adversely occupied at the time of registration. 48. In Strand Securities v Caswell [1965] Ch 958, Denning MR held that "fundamentally," the purpose of protecting overriding interests by actual occupation is "to protect the person […] from having his rights lost in the welter of registration. The concept of overriding interests is intended to encourage a practice of careful enquiry as to the fact of occupation, and if necessary, as to the rights of occupiers." 49. The law enjoins an intending transferee to make inquiries as to any and all occupants of a property, even where such occupancy is not inconsistent with the title being sold. If there is actual occupation, and the occupation carries rights, the purchaser takes subject to them. Actual occupation of part of the land comprised in a registered disposition protects a right or interest in relation to that part of that land (see Ferrishurst Ltd v Wallcite Ltd [1999] 1 All ER 977; [1999] Ch 355). 50. The interest of an adverse possessor will override the title if it would have been obvious on a reasonably careful inspection of the land at the time of creation of the title, or where the registered proprietor had actual knowledge of the occupier’s interest at the time of creation of the title. 51. Actual possession means apparent or patent possession, such as would put a person inspecting the land on notice that there was someone in occupation 10 | P a g e HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 10 of 15

(see Williams & Glyn’s Bank Ltd v Boland [1981] A.C. 487 and Malory Enterprises Ltd v Cheshire Homes Ltd [2002] Ch. 216). 52. The focal point of actual occupation is an objective and factual perspective. Actual occupation is a matter of fact, not a matter of law. A person should be regarded as being in actual occupation of land only if he or she is physically present on the land and his or her occupation is apparent on a reasonable inspection of the land. If there is actual occupation, and the occupier has rights, the purchaser takes subject to them. 53. Overriding interests bind the registered proprietor even though they have been neither substantively registered nor protected by means of an entry on the register. The rights of a person in actual occupation will override only to the extent that they coincide with that occupation. As a result, the person who claims the overriding interests is authorized to exercise the right against the land even though these are unregistered interests that disregard the registered title. 54. In the instant case, the fact that the Plaintiff buried his father on the land in dispute is inconsistent with his being a mere licensee. It is more consistent with his having a proprietary interest in the land. At the time the Respondent processed her title, she had actual notice of the Plaintiff’s adverse possession. She therefore acquired title subject to that interest. 55. In Kariuki v Mica [2025] KECA 31 (KLR), the Court of Appeal observed that where a claimant was born on the land, lived thereon continuously, and remained following parents' demise without permission from the paper owner, the trial court rightly holds that occupation is not permissive. 56. On this score, I find that the Plaintiff was brought up on the suit land courtesy of his parents, and after he came of age, he took over the management of the said parcel from his parents. He put up a home and carried out extensive developments in an open, quiet, continuous, and 11 | P a g e HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 11 of 15

hostile manner. His acts amounted to actual, physical, open, notorious, exclusive, continuous, and hostile possession. There is no evidence that Jimbo Okwany ever attempted to stop him. Although it is alleged that Jimbo’s father granted permission, such permission was of no legal consequence as he possessed no title. The occupation of the Plaintiff was based on the goodwill of his parents, which continued after their demise to the extent that the Plaintiff acquired an overriding interest in the title by way of adverse possession under Section 7 of the Limitation of Actions Act by virtue of Section 30(f) of the Registered Land Act (RLA). 57. Identification of the Occupied Portion and Entitlement to Minerals/Gold Pit: 58. The requirement of identification was crystallized by the mandatory provisions of Order 37 Rule 7 of the Civil Procedure Rules, 2010, which requires that an application for adverse possession be accompanied by a title deed extract (Katana v Nova Holdings Limited [2024] KEELC 3261 (KLR)). The Applicant attached a copy of a title deed extract as required by law. 59. In Kenyan jurisprudence, in Gatimu Kinguru v Muya Gathangi [1976] KLR 253, the court observed that where an occupied portion is definitely identified and identifiable with clear boundaries on the ground, the absence of a pre-existing plot or title number presents no bar to establishing a claim. 60. In Wilson Kazungu Katana v Salim Abdalla Bakshwein [2015] eKLR, the court held that the law requires that the portion claimed be sufficiently identified. A lack of a pre-suit survey is not fatal where the pleadings, affidavits, oral evidence, and photographic exhibits clearly define the spatial extent of the Plaintiff’s actual physical occupation on the ground. 61. The Plaintiff has explicitly established his continuous physical footprint over the 8-acre portion. The lack of a formal mutation prior to filing does not extinguish an accrued equitable title; rather, it is a technical detail that the 12 | P a g e HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 12 of 15

Court resolves by issuing appropriate orders for an official survey and excision. 62. Regarding the gold pit and sand excavation activities raised in the Defendant's application, proprietary rights to surface land features and user activities follow spatial ownership on the ground. Once the County Surveyor visits the suit parcel to excise and define the exact boundaries of the Plaintiff's 8-acre portion: 63. If the gold pit and excavation site fall within the excised 8-acre portion, the rights and responsibilities over that specific spatial area belong to the Plaintiff, subject to statutory mining laws. 64. If the gold pit and excavation site fall outside the excised 8-acre portion (remaining within the Defendant's residual 5.8-acre portion), the Defendant shall retain exclusive entitlement and control over that portion, and the Plaintiff shall be permanently restrained from entering or conducting any excavation thereon. VIII. DISPOSITION & ORDERS 65. The Plaintiff has proved his claim on a balance of probabilities. Judgment is hereby entered for the Plaintiff in the following terms: A. DECLARATION: A declaration is hereby made that the Plaintiff, DUNCAN OTIENO ODERO, has acquired title by way of Adverse Possession over an 8-acre portion out of land parcel GEM/KOWUOR KOTIENO/390. B. ORDER OF SUBDIVISION & SURVEY: The County Surveyor, Homa Bay, is directed to visit the suit parcel within thirty (30) days from the date hereof to excise and establish the clear boundary of the 8-acre portion currently occupied, developed, and cultivated by the Plaintiff. C. ENTITLEMENT TO GOLD PIT & EXCAVATION SITE : Entitlement to the gold pit and excavation site shall depend entirely on location upon 13 | P a g e HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 13 of 15

boundary identification by the County Surveyor. Should the gold pit fall within the excised 8-acre portion, the Plaintiff shall be entitled to possession thereof; if it falls within the Defendant's residual land, the Defendant shall retain exclusive control and the Plaintiff is restrained from interfering therewith. D. ORDER OF TRANSFER & EXECUTION : The Defendant, ESTHER ATIENO, is hereby ordered to execute a transfer and all necessary instruments, mutation forms, and Land Control Board applications to affect the transfer of the excised 8-acre portion to the Plaintiff within thirty (30) days of the approval of the mutation form. The Land Registrar, Homa Bay, shall thereupon register the said 8-acre portion in the name of the Plaintiff. E. DEFAULT ORDER & DEPUTY REGISTRAR'S AUTHORITY : In the event of non-compliance, refusal, or failure by the Defendant to execute the transfer instruments within the stipulated timeline, the Deputy Registrar of this Court is hereby authorized and directed to execute all necessary transfer instruments, mutation forms, and Land Control Board applications on behalf of the Defendant, and the Plaintiff shall be at liberty to engage the services of the County Land Surveyor and Land Registrar, Homa Bay, to finalize the excision and transfer. F. COSTS: Considering the family relationship between the parties, each party shall bear their own costs of this suit. FILE CLOSED. DATED, DELIVERED, AND SIGNED ELECTRONICALLY AT HOMA BAY THIS 17TH DAY OF SEPTEMBER 2026. J. W. WANYONYI JUDGE, ENVIRONMENT AND LAND COURT. 14 | P a g e HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 14 of 15

In the Present of; 1. Shikuku for Odera for the plaintiff. 2. Migele, present for the defendant. 3. Court Assistant, Mercy. 15 | P a g e HOMA BAY ELC O.S NO. E019 OF 2025 – JUDGMENT

page 15 of 15