Peter Otieno Achieng v Joshua Ombuya Odhong & Margaret Auma Owiti

JOSHUA OMBUYA ODHONG and MARGARET AUMA OWITI, the Defendants; a. That the Plaintiff became entitled by adverse possession to the whole of land parcel number KISUMU/NYALUNYA/2137 and KISUMU/NYALUNYA/2138 on the 15th of November, 2017, which was the 12th anniversary of his open, peaceful and uninterrupted occupation thereof. b. That the 1st Defendant’s proprietorship over land parcel number KISUMU/NYALUNYA/2138, which he acquired on 31st August, 2023, is subject and subordinate to the Plaintiff’s overriding interest thereon. c. That the 2nd Defendant’s proprietorship over land parcel number KISUMU/NYALUNYA/2137, which she acquired on 8th March, 2023, is equally subject and subordinate to the Plaintiff’s overriding interest thereon. d. That the Plaintiff is entitled to and should be registered as the proprietor of the two parcels ELC (OS) E012/2024 JUDGEMENT Page 2

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and the registration of the Defendants is ordered to be cancelled forthwith. e. That an injunction be issued restraining the Defendants, whether by their servants, agents, employees or otherwise howsoever, from fencing, subdividing, building, alienating or otherwise dealing with the two parcels. f. That an injunction be issued restraining the Defendants, whether by their servants, agents, employees or otherwise howsoever, from illegally or otherwise interfering with the Plaintiff’s quiet possession and enjoyment of the two parcels. g. That costs of the application be provided. 2. The case of the Plaintiff is that he has acquired title by adverse possession to land parcel numbers KISUMU/NYALUNYA/2137 and 2138 (herein called the suit lands) by reason of being in possession thereof for a period of over 12 years before the filing of these proceedings. That the defendants have, by various activities between the 29th of April, 2024 and the date of filing this suit, sought to realign, fence, alienate and/or to forcefully take possession of the suit lands from the Plaintiff and are intent on so ELC (OS) E012/2024 JUDGEMENT Page 3

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acting unless restrained by orders of this court. That the defendants are the current registered proprietors of the suit lands, having acquired their titles in 2023 with full knowledge of the Plaintiff’s open, peaceful and uninterrupted occupation thereof from November 2005. That the green card for parcel number KISUMU/NYALUNYA/2138 confirms that the 1st Defendant acquired his title by way of transfer to him as a person entitled under a Will or Intestacy (Form 42 of The Land Registration Forms) after the land had been transferred to one JOHN MASEKO NYAGOL, who got it as the Personal Representative of the first proprietor, one APIYO MASEKO (Form 39 of The Land Registration Forms) in Succession Cause number E839 of 2016. That the green card for parcel number KISUMU/NYALUNYA/2137 confirms that the 2 nd Defendant acquired his title by way of transfer to her as the personal representative of the first proprietor ALRED OWITI (Form 39 of The Land Registration Forms) in Succession Cause number 65 of 2021. That the Plaintiff’s title to the two parcels crystallized in November 2017 and the two parcels were therefore no longer part of the assets of the estates referred to in the two green cards and were not available for transfer in the manner that the Defendants purported. That the Defendants have resorted to violent and ELC (OS) E012/2024 JUDGEMENT Page 4

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lawless entry, fencing and wanton destruction of the Plaintiff’s developments on the suit lands, thereby putting to risk his life and that of his family, and the court’s intervention is therefore urgently sought in order to restore law and order. 3. The Originating Summons was opposed by the 1 st Defendant, who filed his Replying Affidavit sworn on 20 th May, 2024. He denied the Plaintiff’s claim KISUMU/NYALUNYA/2138 and averred belongs to that land parcel him. That the No. Plaintiff encroached onto his land. That since the Plaintiff’s entry onto the suit lands in the year 2014, there have been concerted efforts to have the Plaintiff removed from the land; hence, his stay on the land has not been peaceful. 4. The 2nd Defendant’s response to the Plaintiff’s claim was vide her Replying Affidavit sworn on 4th February, 2025. She denied the Plaintiff’s claim and averred that she was the registered owner of land parcel No. KISUMU/NYALUNYA/2137 and that the Plaintiff had trespassed onto parts of her land. That the Applicant has not occupied the portion of land parcel No.2137 for 12 years; that his occupation has not been peaceful; that the possession lacks animus possidendi; and that she has had the land for only one ELC (OS) E012/2024 JUDGEMENT Page 5

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year and 2 months. She prayed that the Plaintiff be evicted from the part of L.R. NO. KISUMU/NYALUNYA/2137 that he occupied. The evidence 5. Pursuant to directions taken on 24 th October, 2024, the suit was heard by way of oral evidence. 6. The Plaintiff testified as PW1 and called 5 witnesses. He produced five exhibits, namely; a. agreement dated 15th November, 2005, b. sale agreement dated 30th January, 2006, c. photographs and, d. letter dated 29th April, 2024. He adopted the contents of his witness statement dated 30 th April, 2024 as his evidence in chief. 6. PW2 was Charles Olimba Mbom, who testified that he sold land to the Plaintiff. PW3 was Kennedy Ochieng. PW4 was Maurice Allan Were, and PW6 was Ruth Agalo Adundo. 7. The Defendants testified and called 3 witnesses. Submissions 8. Parties filed closing submissions on the case. On behalf of the Plaintiff, written submissions dated 24 th February, 2026 were filed by Juliet Dima & Company Associates Advocates, while on behalf ELC (OS) E012/2024 JUDGEMENT Page 6

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of the 1st Defendant, written submissions dated 18th May, 2024 were filed by Charles O. Onyango of Olel Onyango Ingutiah Advocates, and on behalf of the 2 nd Defendant, no submissions were filed. Issues for determination 10. From the pleadings filed, the evidence tendered and submissions filed by Counsel, the following emerge as the issues for determination; a) Whether or not the Plaintiff has had adverse possession of the suit lands. b) Whether or not the 1st Defendant’s proprietary rights over the suit land have become extinguished by operation of law. c) Whether the Plaintiff is entitled to the relief sought. d) Costs. Analysis and determination The first issue for determination is whether or not the Plaintiff has had adverse possession of the suit lands. 11. The Plaintiff pleaded in the Originating Summons that he has been in adverse ELC (OS) E012/2024 possession of JUDGEMENT land parcel numbers Page 7

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KISUMU/NYALUNYA/2137 and KISUMU/NYALUNYA/2137 (the suit lands for a period of over 12 years before the filing of the proceedings. That his title to the two parcels of land crystallized in November 2017. That the Defendants, who are the current registered proprietors of the suit lands, only acquired title thereto in 2023 with the full knowledge of the Plaintiff’s open, peaceful and uninterrupted occupation thereof from November 2005. 12. The Plaintiff testified as PW1 and adopted the contents of his witness statement dated 30th April, 2024 as his evidence. He had, in the witness statement, narrated how he acquired and entered the suit land in the year 2005. That he bought the land from one Philip Achieng Mbom at Kshs.105,000/-. That Mr. Philip Achieng Mbom allowed him to take up immediate occupation of the suit lands in 2005. That before the purchase, it was the family of Philip Achieng Mbom that had been farming the lands exclusively. That the land he bought was supposed to be a portion of land parcel number KISUMU/NYALUNYA/2184. That upon taking possession of the lands, he authorized his mother to farm it and that from the first season of the year, she planted seasonal crops such as maize, beans and cassava continuously, peacefully and without any ELC (OS) E012/2024 JUDGEMENT Page 8

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interruption from anyone, until December 2024 when he (Plaintiff) took over, built his home thereon and did farming. 13. That he continued in open, peaceful and uninterrupted occupation till April 2024 when the 1st Defendant came to the land with surveyors and fenced off the portion he had been farming, hence the suit. That it was then that he realized that what he had all along thought as part of land parcel number 2784 was actually two parcels and that their numbers are 2137 and 2138 respectively. That the Defendants, who were living in the neighborhood, had been seeing him cultivating the suit lands from the date he established his home thereon. That none of the Defendants raised any complaints or claim about his occupation of the land. 14. In cross-examination, the Plaintiff stated that he did not have a sale agreement for the suit land. That although the land he bought was No.2784, he entered the suit lands having been shown the same by the seller as the land he bought. That he had dug a pit latrine in the year 2007 and that he only entered the land because he believed it was No.2784, the land he had bought. That he now realized that the suit lands were registered in the names of the Defendants and that number 2784 could be somewhere lying idle ELC (OS) E012/2024 JUDGEMENT Page 9

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within the locality of where he lives. That the land he occupies today is No.3414 registered in the 1 st Defendant’s name. That he only occupies a portion of parcel No. 2137 and not the whole of it. That he did not know the size of the portion of parcel No. 2137 that he occupies. 15. The witnesses called by the Plaintiff essentially testified to confirm that the Plaintiff bought land from Philip Achieng Mbom and took possession thereof. PW2, a brother of the seller, testified that he was the one who showed the Plaintiff the sold parcel of land. On cross-examination, he stated that he has not been to the suit land and does not know what is on the land currently. PW3, a brother of the Plaintiff, testified that the land the Plaintiff bought is where he (Plaintiff) had built a home where he resides to date. PW4, who claimed to be a neighbour of the Plaintiff, stated that the Plaintiff had been occupying the suit land since the year 2005. He stated further on cross-examination that he got to know about land parcel No.2137 in the year 2024. That there are two homesteads on the said parcel of land and that Joshua Odhong stays on the land. 16. PW5 stated that he saw the Plaintiff’s mother ploughing the suit land from the year 2006 until the year 2014 when the Plaintiff ELC (OS) E012/2024 JUDGEMENT P a g e 10

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built his home on the land. That the Plaintiff lives on parcel No. 2138, which borders his (PW5’s) plot. That there is a new fence erected by the 1st Defendant in 2024. PW6 also testified on the fencing of the suit lands in 2024 by the Plaintiff’s neighbours. PW7 claimed that between the years 2005 and 2014, his mother, one Phoebe Achola, deceased, used to cultivate land parcels 1481 and 2138 which she had leased from a person he did not know. 17. The Defendants, on the other hand, denied that the Plaintiff had had adverse possession of the suit lands. The 1 st Defendant, who testified as DW1, stated that the Plaintiff entered land parcel number KISUMU/NYALUNYA/2137 and 1481 in the year 2014. That land parcel No. KISUMU/NYALUNYA/2137, which is one of the suit lands herein, belongs to him, and that he bought the land from one John Maseku Nyagol. That he also bought land number KISUMU/NYALUNYA/1481 from Ogola Owiti in 2006, both of which parcels are registered in his name. 18. That in 2006 he established his home on what he believed to be the upper part of land parcel No. KISUMU/NYALUNYA/1481, which later turned out to be that his home was actually established on LR NO.2137, which belongs to the 2nd Defendant. ELC (OS) E012/2024 JUDGEMENT P a g e 11

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19. That in the year 2014, he discovered that the Plaintiff had encroached on parts of land parcel No.2138 and 1481. That he had fenced off 1481 as part of his home, and on parcel No.2138, he was growing crops. That he called a surveyor, one Mr. Luke Otieno, now deceased, who confirmed the encroachment, whereupon he demanded of the Plaintiff that he move away from the land, but that the Plaintiff refused 20. That again in the year 2016, he caused a second survey to be conducted with similar results. That he purchased the portion of No. 2137 which he had occupied. That in 2017, he discovered that the Plaintiff was constructing a permanent house on parcel No.2137 and that when he asked the Plaintiff to stop, he did not heed. 21. That since entry of the Plaintiff onto the suit parcels in the year 2014, there have been concerted efforts to have the Plaintiff removed from the land and that his stay on the land has not been peaceful at all. That upon completion of the survey, he moved in and fenced off parcel No.2138 and took possession; hence, the same cannot be a subject of adverse possession claim. 22. On cross-examination, the 1st Defendant stated that the Plaintiff owned Kisumu/Nyalunya/3414, which was a sub-division of ELC (OS) E012/2024 JUDGEMENT P a g e 12

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2784, which was registered in the Plaintiff's name in the year 2006. DW2 testified that he tilled land parcel No.2138 for 2 years with the permission of the 1 st Defendant before he left it in 2008, when the land remained idle till 2024 because the owner was away. 23. DW3 testified that he sold land parcel No.2138 to the 1 st Defendant in the year 2006. And DW4 was the 2 nd Defendant. She denied ever selling land to the Plaintiff. She stated that land parcel No.2137 belonged to her late husband and that she did succession to cause it to be transmitted to her name. That the people in occupation of land parcel No.2137 are three. That she does not reside on the land. 24. Adverse possession is a doctrine of law. A claimant must prove on a balance of probabilities that he/she has had actual, exclusive, continuous, open and uninterrupted occupation of the subject land with the knowledge but without the permission of the registered owner for a period in excess of 12 years. In Kimani Ruchure vs Swift Rutherfords & Co. Ltd (1980)KLR 10, it was 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 persuasion).” ELC (OS) E012/2024 JUDGEMENT P a g e 13

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25. The absence of permission of the registered owner as an ingredient of adverse possession was emphasized in the case of Gabriel Mbui vs Mukindia Maranya [1993] eKLR, where the court defined adverse possession as “... the non-permissive physical control over land coupled with the intention of doing so, by a stranger having actual occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owner’s enjoyment of land for purposes for which the owner intended to use it.” In the case of Mtana Lewa –vs- Kahindi Ngala Mwagandi [2015] e KLR, the Court of Appeal held that: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it, and the person having title omits or neglects to take action against such person in assertion of his title for a ELC (OS) E012/2024 JUDGEMENT P a g e 14

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certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 26. In the present case, the Plaintiff’s explanation on his entry onto the suit land is that he had bought parcel No. 2784, but was misled by the seller to believe that the suit lands were parcel No. 2784 and he therefore entered the suit land with the permission of the seller and started to develop the same. 27. Although he claimed to have entered the suit lands in the year 2006, no evidence was adduced on this. His development of the suit land parcel No. 2137 began in the year 2014 when he built a house. 28. Although the Plaintiff claims the entire suit lands and seeks for an order that he has become entitled by adverse possession to the whole KISUMU/NYALUNYA/2137 and of land parcel numbers KISUMU/NYALUNYA/2138, it emerged from the evidence that 3 people occupy parcel No. ELC (OS) E012/2024 JUDGEMENT P a g e 15

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2137, namely the Plaintiff, the 1st Defendant, and one Benard Ogutu. The Plaintiff did not thus demonstrate that he has exclusive possession of land parcel No. 2137. The plaintiff readily admitted on cross-examination that he only occupies a portion thereof and the rest of the land was occupied by other people. He did not plead or prove the size of the portion of parcel No. 2137 that he occupied. Where the claim is for only a portion of the land, the size of that portion must be pleaded and proved. 29. Concerning parcel No. 2138, as at the time of filing suit, the same had been fenced off and possession thereof taken by the 1st Defendant, who is the registered owner thereof. DW1 testified that he had fenced off the land, taken possession, planted trees, and placed DW2 as the caretaker thereof. Adverse possession ceased and time stopped to run when the owner asserted his rights and took possession. In Githu vs Ndeete [1994] KLR cited in Kenya Commercial Bank (suing as Administrator of the Estate of Paul Njoroge Muchene) vs Sarah Njeri Muchene, the court held that: “ time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his rights or ELC (OS) E012/2024 JUDGEMENT P a g e 16

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when his right is admitted by adverse possession. Assertion occurs when the owner takes legal proceedings or makes an entry into land. Giving notice to quit cannot be effective assertion of right for the purpose of stopping the running of time under the Limitation of Actions Act. A title by adverse possession can be acquired under the Limitation of Actions Act to a part of the parcel of land to which the owner holds title.” 30. From the evidence placed before the Court, it is observable that from the year 2014 when the Plaintiff took possession to 2024 when the suit was filed, the period of 12 years had not elapsed. Secondly, time could not run against the Defendants before they became registered as owners of the suit lands. Further, the people previously registered as owners have not been sued herein. 31. The burden of proof, pursuant to the provisions of section 107 of the Evidence Act, was on the Plaintiff to prove adverse possession. He has failed to discharge the burden. He has his own parcel of land in the neighbourhood which he admitted was lying idle. ELC (OS) E012/2024 JUDGEMENT P a g e 17

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32. I find that the plaintiff has not proved that he has had adverse possession of the suit lands as claimed. 33. The plaintiff urged the court to find that the Defendants' titles to the suit lands were subject and subordinate to the plaintiff’s overriding interest on the lands. Section 28 of the Land Registration Act provides concerning overriding interests as follows: ‘Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted in the registera. …. b. ….. c. …. d. …. e. …. f. …. g. …. h. Rights acquired or in the process of being acquired by virtue of any ELC (OS) E012/2024 JUDGEMENT P a g e 18

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written limitation law relating to the of actions or by prescription. The plaintiff, however, has not proved the existence of the overriding interest of adverse possession. The second issue for determination was whether the Defendants’ title to the suit land had become extinguished. 34. Section 17 of the Limitation of Actions Act provides that “Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.” If the plaintiff entered the suit land in 2005 or 2006, as claimed, or even in 2014, the person(s) who ought to have brought an action to recover the land are the person(s) in whose names the suit lands were registered then. Such person(s) have not been sued herein. The court has already found that the plaintiff entered the suit land in 2014, not earlier. The court has also found that adverse possession has not been proved. For these reasons, there is no basis for a ELC (OS) E012/2024 JUDGEMENT P a g e 19

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declaration that the present defendants’ titles to the suit land, acquired in 2023, have become extinguished. The third issue is whether the Plaintiff is entitled to the relief sought. For the foregoing reasons, the court finds that the Plaintiff is not entitled to the relief sought. Under section 27 of the Civil Procedure Act, costs follow the event. The upshot is that the Plaintiff has not proved his claim on a balance of probabilities, with the result that the suit is hereby dismissed. Costs are awarded to the Defendants. Orders accordingly. Judgment dated and signed at Kisumu and delivered this 24th day of September, 2026, virtually through Microsoft Teams Online Application. E. ASATI, JUDGE. In the presence of: Timothy/Zeddy/Atika: Court Assistant. No appearance for the Plaintiff/Applicant. Onyango for the 1st defendant/Respondent. ELC (OS) E012/2024 JUDGEMENT P a g e 20

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No appearance for the 2nd defendant/Respondent. ELC (OS) E012/2024 JUDGEMENT P a g e 21

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