REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT HOMA BAY ELC OS NO. E040 OF 2025 BETWEEN LINET ACHIENG OOKO .................................................................... APPLICANT VERSUS PETER OKELLO OBONDI ......................................................... RESPONDENT JUDGMENT 1. Introduction. a) This matter comes before this Court via an Originating Summons dated 26th June 2025, instituted under Sections 7, 13, 17, and 38 of the Limitation of Actions Act (Cap 22) and Order 37 of the Civil Procedure Rules. b) The Applicant seeks a judicial declaration that she has acquired title to a portion measuring approximately 0.6 hectares (or 1.5 acres) of land parcel known as WAONDO/WASAKI/1224 by way of adverse possession, alongside consequential orders for registration and the issuance of a title deed. c) Land litigation grounded in adverse possession often invites profound tension between formal paper title and long-standing physical occupation. As observed in judicial authorities, courts must carefully interrogate whether the essential ingredients of adverse possession have been strictly met without distortion by shifting causes of action. 2. Quote "When customary law rights failed to unseat rights acquired on the first registration of land titles, there was a shift to the trust concept; when there was a leak in the trust tent, refuge was sought under the umbrella of fraud; when fraud 1|Page HOMA BAY ELC OS NO E040 OF 2025 -JUDGMENT
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proved too porous a cover, there arose a stampede for the adverse possession edifice at which most land litigation now seems docked, engulfing Courts like wild fire..." — R.C.N. Kuloba, J. (as he then was) in Mbui v. Maranya (Civil Case 283 of 1990) [1993] KEHC 161. 3. Summary of Evidence The Applicant's Case (PW1 - Linet Achieng Ooko): a) The Applicant testified that she took physical possession of the 0.6-hectare portion of land parcel WAONDO/WASAKI/1224 in or around 1979 following the death of her husband, Samson Ooko, after which her father-in-law, Muya Ong'ongo, permitted her to use and farm the land. b) She stated that she has maintained continuous, open, exclusive, and uninterrupted occupation, farming, and utilization of the portion for over 40 years against the interests of the Respondent. c) During cross-examination and through her supporting witnesses (PW2, Walter Ogembo Asanyo; PW3, Selemia Oguna; and PW4, Kiche Oguma), the narrative shifted to allege that her late father-in-law originally bought the land from one Ayoko Koi, and that the Respondent clandestinely or fraudulently registered the land in his name during the local land adjudication and registration process. d) She admitted that her home photographs (Exhibits 2a–e) and the disputed parcel photographs (Exhibits 2f–h) represented different sections, while maintaining that the Respondent's title was acquired improperly. The Respondent's Case (DW1 - Peter Okello Obondi): a) The Respondent testified that he is the bona fide, registered absolute proprietor of land parcel GEMBE/WAONDO/WASAKI/1224 measuring 0.6 Ha, having 2|Page HOMA BAY ELC OS NO E040 OF 2025 -JUDGMENT
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obtained a valid Certificate of Title on 28th November 2014. b) He maintained that the Applicant's occupation was entirely permissive; as a neighbor and close acquaintance from the same village, he permitted her to till the land to feed her children while he and his family lived and worked in Nairobi. c) He produced chief's tribunal proceedings and letters confirming that village elders and the assistant chief arbitrated the dispute and found that the Applicant could not produce ownership documents, whereas the Respondent held the valid registered title. 4. Frame of Issues From the pleadings, oral testimony, and rival submissions, the core issues for determination are: a) Whether the Applicant has proved the elements of open, continuous, exclusive, and non-permissive adverse possession for the statutory period of 12 years under the Limitation of Actions Act. b) Whether the Applicant’s occupation was permissive, thereby defeating a claim of adverse possession. c) Whether a claim of adverse possession can co-exist with, or be sustained by, allegations that the Respondent's title was fraudulently or clandestinely acquired during land adjudication. 5. Reference to Submissions The Applicant’s Submissions: a) Counsel for the Applicant argued that she proved open, notorious, exclusive, and continuous occupation of the 0.6-hectare portion since 1979, exceeding the 3|Page HOMA BAY ELC OS NO E040 OF 2025 -JUDGMENT
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40-year threshold. b) It was submitted that the Respondent failed to substantiate the defense of permission with credible, consistent evidence, and that changes in parcel numbering or road excision during land adjudication did not interrupt the continuity of physical possession. The Respondent’s Submissions: a) Counsel for the Respondent contended that the Applicant's occupation was explicitly permissive, rooted in neighborly and kinship accommodation while the Respondent was away in Nairobi. b) Relying on recent appellate jurisprudence, the Respondent strongly submitted that the Applicant abandoned her claim of adverse possession midstream by introducing evidence alleging fraud, clandestine registration, and a customary purchase by her father-in-law—pleadings and causes of action that are mutually exclusive and fatal to an adverse possession claim. 6. Reference to Authorities This Court has been guided by several binding statutory provisions and judicial precedents: a) Limitation of Actions Act (Cap 22, Laws of Kenya): Sections 7, 13, 17, and 38, which set out the 12-year limitation period, the strict necessity of adverse (nonpermissive) possession, and the procedure for seeking registration. b) Wanyama & another v Nyuki & 8 others (Registered Trustees of Methodist Church in Kenya) [2026] KECA 261 (KLR) / Mwalimu & 6 Others v. Halal & Another (Civil Appeal E036 of 2023) [2025] KECA 1186: The Court of Appeal emphasized that claims of adverse possession and allegations of fraudulent title 4|Page HOMA BAY ELC OS NO E040 OF 2025 -JUDGMENT
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acquisition are fundamentally incongruent causes of action that cannot ride on the same wheels of justice. c) Kasuve v. Mwaani Investments Ltd & 4 Others [2004] 1 KLR 184: Setting the standard that a claimant must establish open, notorious, continuous, and exclusive possession adverse to the true owner's title for at least 12 years. d) Wambugu v. Njuguna [1983] KLR 173: Affirming that where initial occupation is permissive or tied to a contractual arrangement, time does not begin to run until that permission is unequivocally terminated or repudiated. e) Haro Yonda Juaje v. Sadaka Dzengo Mbauro & Another [2014] KEHC 6665: Establishing that a party cannot acknowledge or impugn a registered proprietor's title as fraudulent while simultaneously seeking to claim the same land through adverse possession. f) Njue v. Matiabe & 3 Others [2023] KEELC 17361: Emphasizing that the moment a claimant contests and impugns the validity of the registered proprietor's title, the claim for adverse possession is defeated. 7. Analysis and Determination a) It is a well-settled principle of land law that a party who seeks to uproot a registered proprietor's title via adverse possession bears the heavy burden of establishing that their occupation is nec vi, nec clam, nec precario—meaning without force, without secrecy, and without permission—for a continuous period of not less than 12 years. b) In the present case, a critical evaluation of the record reveals a fatal contradiction in the Applicant's case. While the Originating Summons is framed under the doctrine of adverse possession, the Applicant's oral testimony and the evidence of her witnesses (PW2, PW3, and PW4) aggressively shifted the substratum of the dispute by challenging the validity of the Respondent's title, 5|Page HOMA BAY ELC OS NO E040 OF 2025 -JUDGMENT
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claiming that the land originally belonged to her late father-in-law through a customary purchase and that the Respondent fraudulently secured registration in his name. c) As correctly highlighted by the Respondent and reinforced by the Court of Appeal in Wanyama & another v Nyuki and Mwalimu & 6 Others v. Halal & Another (supra), a claim of adverse possession is fundamentally antithetical to a claim of fraud or illegal registration. To claim adverse possession, a party must implicitly or explicitly acknowledge that the land belongs to another, but that the statutory limitation period has barred the owner from recovering it. The moment a claimant turns around to impugn the root of the title, alleging fraud, trust, or unlawful registration during adjudication, the substratum of adverse possession collapses. d) Furthermore, the record before the Assistant Chief's tribunal (Respondent's Exhibit 4) and the Respondent's consistent testimony demonstrate that the Applicant's initial entry and utilization were accommodated through communal and neighborly permission. The Applicant failed to establish an unequivocal act terminating such permission and setting the clock of adverse possession in motion prior to the statutory threshold. e) Additionally, discrepancies regarding the physical location of the Applicant's home (situated on parcel 1227) versus the suit property (parcel 1224) and the lack of precise survey evidence identifying the exact 0.6-hectare portion adversely possessed further compound the failure of proof. 8. Disposition Accordingly, and for the reasons set out above, this Court finds that the Applicant has failed to prove her claim of adverse possession on a balance of probabilities. 6|Page HOMA BAY ELC OS NO E040 OF 2025 -JUDGMENT
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The orders that commend themselves and are hereby issued are as follows: 1. The Applicant's Originating Summons dated 26th June 2025 is hereby dismissed in its entirety. 2. The Respondent, being the registered and absolute proprietor of land parcel GEMBE/WAONDO/WASAKI/1224, retains his indefeasible rights pursuant to Section 26 of the Land Registration Act. 3. In view of the family and community context of this dispute, each party shall bear their own costs. 4. File is marked as closed. DELIVERED VIRTUALLY, DATED, AND SIGNED AT HOMA BAY THIS 6TH DAY OF OCTOBER, 2026. HON. JUSTICE J. W. WANYONYI JUDGE, ENVIRONMENT AND LAND COURT, HOMA BAY 1. Omondi for the Respondent – Present 2. Obach for the Applicant-Present (Ms. Ochieng holding brief ) 3. Court Assistant; Ms. Awino. 7|Page HOMA BAY ELC OS NO E040 OF 2025 -JUDGMENT
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