William Taro Oduk (Suing as the Legal Representative of the Estate of Elijah Oduk Ochola, Deceased) v Richard Odhiambo Odhul (Sued as the Legal Representative of the Estate of Arzon Odhul Mambo)

1970s—an era when transactions were sealed under the canopy of acacia trees by a handshake and mutual trust, long before paper titles and formal map registries codified the modern landscape. 2. The Plaintiff, William Taro Oduk, stepping forward as the legal torchbearer for his late father Elijah Oduk Ochola, invites this Court into a homestead built not on transient convenience, but on the enduring sweat of continuous toil. It is a story of a family who arrived on a portion of land parcel GEM/KOYOLO/220 measuring approximately 0.86 hectares (Area B) following an uncompleted purchase transaction with the initial registered owner, Agwanda Adhul, in 1971. What began as an informal acquisition burgeoned over five decades into an irreversible sanctuary: they cleared the wilderness, tilled the fields year after year, planted mature perennial trees, erected permanent residential structures in 1982 and 1992, and, most profoundly, interred their patriarch, Elijah Oduk Ochola, within the homestead's grounds in 1995 with the open participation of the extended clan. 3. Opposing this deep-seated historical reality is the Defendant, Richard Odhiambo Odhul, representing the estate of the late Arzon Odhul Mambo, who relies on the pristine shelter of formal registration entries dating to October 1994. The defense raises a familiar constitutional shield: that under Article 40 of the Constitution of Kenya, private property rights are inviolable and cannot be arbitrarily stripped away. They contend that the Oduk family's occupation was merely permissive—a product of familial accommodation— and that recent family flare-ups and criminal proceedings (Homa Bay CR E145/2025) launched in April 2025 shattered the peace required for prescription. 4. Thus, this Court is tasked with a solemn adjudication: to balance the unyielding sanctity of registered paper title against the formidable, time-tested 2|Page HOMA BAY ELC L OS E029 OF 2025, JUDGEMENT

page 2 of 11

public policy mandate of adverse possession. When a family builds their lives, buries their dead, and watches fifty years slip by under the silent watch of the law, can a paper proprietor invoke constitutional protection to uproot them? This judgment explores that timeless intersection of equity, statute, and human history. 2. Summary of Statement and Evidence A. The Plaintiff's Evidence i. PW1 (William Taro Oduk): Testified that his late father purchased a portion of the land from Agwanda Adhul in 1971. Although formal transfer was never executed, the family has continuously occupied, farmed, and built permanent homes on the property since 1971 without disturbance until April 2025. ii. PW2 (Dor Ogello Kijana): A neighbor who corroborated the continuous history of the claimant family's physical occupation since childhood. iii. PW3 (Evans Omondi): A surveyor whose expert report documented a homestead footprint of approximately 0.86 hectares, inclusive of permanent residential buildings, mature plantations, and family graves. iv. PW4 (Frederick Owuor Odhiambo), PW5 (Peter Oduor) & PW6 (Raphael Ochola Ober): Community elders and family sources who verified historical occupation dating back to the 1970s, the construction of structures in 1982 and 1992, and the burial of Elijah Oduk Ochola on the land in 1995 with the participation of members from the defendant's extended family. B. The Defendant's Evidence 3|Page HOMA BAY ELC L OS E029 OF 2025, JUDGEMENT

page 3 of 11

i) DW1 (Richard Odhiambo Bunde): The Defendant, who stated that his father (Arzon Odhul Mambo) was registered on land parcel Koyolo/220 with entries dating back to May 1972 and October 1994. He maintained that the Oduk family's presence was cooperative or permissive due to family ties and that recent issues culminated in criminal proceedings (Homa Bay CR E145/2025). ii) DW2 (John Omollo Vancome): Testified regarding family lineage and cultivation, asserting that Agwanda passed away in 1990 and that the homestead is bounded naturally, though acknowledging that the Oduks were never forcefully evicted. 3. Summary of Exhibits i) Certificate of Official Search: Issued for GEM/KOYOLO/220, confirming registration details and absolute proprietorship under Arzon Odhul Mambo. ii) Green Card Records: Entry 1 reflects Agwanda Odhul as the first registered owner on May 15, 1972, prior to subsequent registration iterations. iii)Photographic Evidence & Certificate of Electronic Evidence: Authenticated photographs capturing the permanent structures, chainlink and oleander perimeter fences, crops, and the family burial site on the disputed portion. iv)Criminal Charge Sheet: Rangwe Police Station Case MCCCR E145/2025 concerning altercations and threats arising from the land dispute in April 2025. v) Grant of Letters of Administration: Issued in Homa Bay Succession Cause No. E121 of 2025 to the Defendant for the estate of Arzon Odhul Mambo. 4. Issues for Determination Upon evaluating the pleadings, witness testimonies, and trial bundles, the Court distills the following core issues for determination: 4|Page HOMA BAY ELC L OS E029 OF 2025, JUDGEMENT

page 4 of 11

1. Whether the Plaintiff has proved uninterrupted physical possession open, of the exclusive, continuous, 0.86-hectare portion and of GEM/KOYOLO/220 for a period exceeding 12 consecutive years. 2. Whether the nature of the Plaintiff's entry and possession was adverse or merely permissive, thereby defeating a claim of adverse possession. 3. Whether the rights of the registered proprietor have been extinguished under Sections 7 and 38 of the Limitation of Actions Act, giving rise to overriding interests under Section 28(h) of the Land Registration Act. 5. Summary of Legal Submissions A. Plaintiff's Submissions i) Entry and Duration: The Plaintiff submitted that physical occupation commenced in 1972 following a purchase from the initial registered owner, Agwanda Odhul, and has endured openly and continuously for over 52 years, well past the 12-year statutory threshold. ii) Extinguishment and Overriding Interests: Relying on Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another and Titus Kigoro Munyi v. Peter Mburu Kimani, the Plaintiff argued that the rights of the initial owner were extinguished after 12 years, and subsequent registrations took effect subject to the Plaintiff's overriding interests under Section 28(h) of the Land Registration Act. iii)Documentary and Physical Proof: The Plaintiff urged the Court to dismiss defense affidavits as legally flawed under Section 88 of the Evidence Act due to misstatements regarding first registration, pointing out that the Green Card confirms Agwanda Odhul as the first registered proprietor in May 1972. B. Defendant's Submissions 5|Page HOMA BAY ELC L OS E029 OF 2025, JUDGEMENT

page 5 of 11

i) Permissive Entry: The Defendant argued that because the Plaintiff’s father originally entered the land via a transaction or family agreement with Agwanda Odhul, the possession was permissive (nec precario) and could not be adverse from inception. ii) Interruption of Time: The Defendant contended that active disputes, succession proceedings, and criminal litigation (Homa Bay MCCR E145 of 2025) interrupted the running of time, demonstrating that the occupation was neither peaceful nor uninterrupted. iii)Constitutional Rights: The Defendant maintained that absolute title protected under Article 40 of the Constitution cannot be arbitrarily expropriated or stripped away without strict fulfillment of all adverse possession requirements. 6. Reference to Case Law and Comparative Jurisprudence 5. In adjudicating this matter, the Court is guided by domestic jurisprudence and persuasive comparative common law across the region: i) Mtana Lewa v. Kahindi Ngala Mwagandi [2015] eKLR (Kenya): The Court of Appeal firmly upheld the constitutionality of adverse possession, ruling that the doctrine does not amount to an arbitrary deprivation of property under Article 40, but serves vital public policy objectives against indolent landowners and stale claims. ii) Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another (Kenya): Setting out the classic criteria that adverse possession must be nec vi, nec clam, nec precario—meaning peaceful, open, and without permission. iii) Titus Kigoro Munyi v. Peter Mburu Kimani (Kenya): Establishing how continuous possession running against predecessors in title binds subsequent registered proprietors who take land subject to overriding 6|Page HOMA BAY ELC L OS E029 OF 2025, JUDGEMENT

page 6 of 11

interests of actual occupants. iv) Gabriel Mbui v. Mukindia Maranya & Karuntimi Raiji v. M'Makinya M'itunga (Kenya): Establishing that once the statutory period lapses, the title of the registered owner is extinguished, and they hold the land thereafter as a trustee for the adverse possessor. v) Rwajuma v. Jingo (Uganda High Court): Providing persuasive comparative value on the East African statutory framework, affirming that long, uninterrupted physical occupation exceeding twelve years extinguishes the paper owner's right of recovery and confirms that an adverse occupant can acquire absolute entitlement against registered interests. vi) Welgemoed v. Coetzer 1946 TPD 701 & Pienaar v. Rabie (South Africa): Illustrating Roman-Dutch principles of acquisitive prescription, emphasizing that open, continuous civil possession (civilis possessio) exercised as if one were the owner for the prescribed statutory period fosters legal certainty and cures historical transactional defects. vii) Molosoni Chipabwamba & 12 Others v. Yssel Enterprises Limited Appeal No. 104/2020 (Zambia Court of Appeal): Highlighting the regional judicial imperative to protect long-standing, peaceful community and family settlement footprints against later administrative or statutory title overlain without regard to historic, un-evicted possessory rights. 7. Analysis and Determination: The Constitutional Mandate of Article 40 and 7|Page HOMA BAY ELC L OS E029 OF 2025, JUDGEMENT

page 7 of 11

Individual Elements of Adverse Possession 6. The centerpiece of the defense centers on the inviolability of private property enshrined under Article 40 of the Constitution of Kenya. The Defendant invokes this supreme constitutional provision as an impenetrable shield, arguing that the estate's paper title represents an absolute right that cannot be defeated by prescriptive claims. 7. This Court recognizes that Article 40 guarantees every person the right, either individually or in association with others, to acquire and own property of any description in any part of Kenya. However, constitutional ownership is neither absolute nor vacuously static. Article 40(6) explicitly stipulates that the rights protected under this Article do not extend to any property that has been unlawfully acquired. Furthermore, property rights under the constitutional scheme operate within the matrix of public interest, social justice, and statutory limitations enacted by Parliament, such as the Limitation of Actions Act. 8. As authoritatively pronounced by the Court of Appeal in Mtana Lewa v. Kahindi Ngala Mwagandi [2015] eKLR, the doctrine of adverse possession is entirely constitutional. It does not constitute an arbitrary, unconstitutional deprivation of property under Article 40; rather, it is a legislative and judicial balancing mechanism. It penalizes indolence—punishing landowners who sleep on their rights for over twelve consecutive years—while giving effect to public policy, social stability, and legal certainty by ensuring that land does not remain abandoned, contested, and economically unproductive indefinitely. When a registered owner slumbers for decades while another family builds homes, cultivates crops, and buries their dead, the operation of adverse possession does not steal property; it merely recognizes that the paper title has legally died by operation of the statute, transforming the paper owner into a 8|Page HOMA BAY ELC L OS E029 OF 2025, JUDGEMENT

page 8 of 11

trustee for the actual possessor (Gabriel Mbui v. Mukindia Maranya). 9. To successfully claim this constitutional and statutory recognition under Sections 7 and 38 of the Limitation of Actions Act, the Plaintiff must establish three classic elements, which this Court examines individually: A. Continuity of Possession 10.The statutory clock requires a continuous, uninterrupted period of 12 years. The evidence from PW1, PW2, and corroborating community elders (PW5 and PW6) demonstrates that the Plaintiff's family entered the land in the early 1970s and maintained an unbroken physical presence. They built permanent structures in 1982 and 1992, farmed the land continuously, and buried their patriarch, Elijah Oduk Ochola, on the property in 1995. The defense's assertion of interruptions via 2025 criminal proceedings (Homa Bay CR E145/2025) and succession disputes fails because the 12-year statutory period had already lapsed decades prior to 2025. As held in Titus Kigoro Munyi v. Peter Mburu Kimani, once the 12-year period matures, the prior owner’s title is extinguished, leaving no room for subsequent events or belated criminal complaints to reverse accrued prescriptive rights. B. Exclusivity of Possession 11.Exclusivity requires that the claimant occupies the land as their own, to the exclusion of the registered owner. The survey report by PW3 and photographic evidence confirm that the Oduk family established a distinct homestead footprint spanning 0.86 hectares, marked by perimeter fencing (oleander and chainlink) and internal structures. While the defense argued that family ties permitted shared presence, DW1 and DW2 admitted that the Oduk family was never evicted and exercised exclusive control over their specific homestead 9|Page HOMA BAY ELC L OS E029 OF 2025, JUDGEMENT

page 9 of 11

sector. The establishment of homes, a permanent grave site, and continuous agricultural tillage points to an exclusive dominion over Area B. C. Openness and Notoriety (Without Secrecy or Force) 12.Possession must be open and notorious so that a diligent owner would have notice of the adverse claim. The open erection of residential houses in 1982 and 1992, the open cultivation of crops, and, above all, the internment of a family member (Elijah Oduk Ochola) within the homestead in 1995—with the participation of members of the defendant's extended family—completely negate any element of clandestineness. Regarding the defense argument of permissive entry, even if initial entry stemmed from an uncompleted purchase agreement with Agwanda Odhul in 1971, the failure to formalize the transfer combined with over 50 years of open, uninterrupted occupation converted any initial permissive license into an adverse holding. The subsequent registration of Arzon Odhul Mambo in 1994 did not reset this timeline, as a registered proprietor takes the land subject to overriding interests under Section 28(h) of the Land Registration Act. 8. Judgment and Orders 13.Accordingly, upon evaluating the individual elements of adverse possession, reconciling the constitutional parameters of Article 40, weighing comparative jurisprudence, and applying binding case law, the Court finds that the Plaintiff has satisfied the strict legal thresholds required. Judgment is hereby entered for the Plaintiff against the Defendant in the following terms: 1. IT IS HEREBY DECLARED that the Plaintiff's family has acquired ownership 10 | P a g e HOMA BAY ELC L OS E029 OF 2025, JUDGEMENT

page 10 of 11

of the portion measuring approximately 0.86 hectares (Area B) of land parcel GEM/KOYOLO/220 by way of adverse possession. 2. AN ORDER OF PERMANENT INJUNCTION is hereby issued restraining the Defendant, his agents, servants, or anyone claiming through him from entering, trespassing upon, evicting, or in any manner interfering with the Plaintiff's quiet and peaceful possession of the 0.86-hectare portion of GEM/KOYOLO/220. 3. The Land Registrar, Homa Bay, is hereby ordered to facilitate the subdivision and excision of the 0.86-hectare portion from land parcel GEM/KOYOLO/220 and register the same in the name of William Taro Oduk (as the legal representative of the estate of Elijah Oduk Ochola). 4. Homa Bay Succession Cause No. E121 of 2025 shall stand restricted to exclude the 0.86-hectare portion awarded herein from distribution as part of the estate of Arzon Odhul Mambo. 5. Each party shall bear their own costs of the suit in view of the historical family background of the dispute. DATED, SIGNED, AND DELIVERED AT HOMA BAY THIS 28TH DAY OF SEPTEMBER, 2026. JUDGE ENVIRONMENT AND LAND COURT AT HOMA BAY In the presence of: 1. Kimberly holding brief for Obwanda for the Plaintiff / Applicant 2. Wabwire for the Defendant / Respondent 3. Court Assistant, Ms. Awino. 11 | P a g e HOMA BAY ELC L OS E029 OF 2025, JUDGEMENT

page 11 of 11