Introduction
Catherine Atieno Ayieko, the Plaintiff/Applicant herein who claims proprietary interest by way of adverse possession in a portion of land parcel number KISUMU/BAR/1893 filed this suit vide the Originating Summons dated 26th May 2023 expressed to be filed pursuant to the provisions of Article 159 of the Constitution of Kenya 2010, section 38 of the Limitation of Actions Act, Order 37 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act Cap 21 Laws of Kenya. The Originating Summons was later amended and replaced with the Originating Summons dated 29th February, 2024.
The Plaintiff/Applicant sought that the court grant the following relief against the Defendants/Respondents herein: -
1) An order that the Applicant herein is entitled to land parcels KISUMU/BAR/2785 and KISUMU/BAR/2786 by reason of adverse possession having occupied the said parcel of land for a period exceeding 12 years without any interference from the Respondents.
2) An order that the Respondents’ proprietary interest in the said parcel land numbers KISUMU/BAR/2785 and KISUMU/BAR/2786 has been extinguished by virtue of the Applicant’s adverse possession and that the Respondents are now holding the Title to the said parcel of land in trust of the Applicant.
3) An order that the title deed that was issued in the name of SHADRACK ANYANGE ODENDO AND BENJAMIN OTIENO OLIECH, as the absolute proprietors of land parcel number KISUMU/BAR/2785 and KISUMU/BAR 2786, should now be revoked and cancelled, and the said parcel of land number KISUMU/BAR/1893 be transferred to CATHERINE ATIENO AYIEKO as the sole proprietor thereof.
4) An order that the Defendants should do the transfer of the said land parcel number KISUMU/BAR/2785 and KISUMU/BAR/2786 to the Plaintiff free from any encumbrances failing to which this Court Deputy Registrar be authorized to sign all the necessary papers, documents ana transfer forms, application for consent of the land control board to ensure that the Plaintiff is the registered owner of the said parcels of land free from all encumbrances.
5) Whether the costs of summons should be provided for, and who should pay the said costs.
The grounds upon which the Originating Summons was brought were that;
1. That on or about May 1991, the Plaintiff purchased land parcel originally known as KISUMU/BAR/1855 from one Joseph Opondo Ochieng (Deceased) at a purchase price of Kshs. 16,500, an amount that she paid in full and the same was subdivided into two numbers: KISUMU/BAR/1893 and 1855.
2. That after the said purchase, the Plaintiff and the said Joseph Opondo followed the due procedure, and the said parcels of land were transferred in the name of the Plaintiff, whereby she was issued with a title deed to effect the same.
3. That immediately after the said purchase, the Plaintiff immediately took possession of the said parcel of land by planting trees, cultivating and building a semi-permanent structure.
4. That sometimes in February 1994 as the Plaintiff was doing her business at the police station in Vihiga she received a call from the CID Headquarters from Kisumu asking her to carry her title deed to the police station.
5. That she went as was ordered accompanied by his son James David Omondi and on arrival they found Joseph Opondo’s daughter Jane Adoyo Opondo and her husband and she was forced to sit down at gun point an was forced to remove the title deed for land parcel number KISUMU/BAR/1893.
6. The police officers then came with the transfer documents to enable the Plaintiff to transfer the said land from her name to the name of Jane Adoyo whereby she signed all the transfer documents and the said land was later transferred to the name of Jane Adoyo (Deceased).
7. That at all material time, the Plaintiff was in occupation of the said parcel of land and she stated the process of regaining back her parcel of land unfortunately Jane Adoyo Opondo passed on in the process and she cited the beneficiaries of the estate of Jane Adoyo to take out grant of letters of administration so that she can sue the estate for fraudulent transfer, unfortunately, she fell ill in the process therefore she could not pursue the whole process.
8. That sometimes in 2013 the Defendants herein came to claim the ownership of the suit parcel of land and when the Plaintiff went to do a search at the land registry, she discovered that the Defendants herein had already done succession to the estate of Jane Adoyo Opondo, and they had already transferred the land in their names and subdivided the same into two numbers being KISUMU/BAR/2785 and KISUMU/BAR 2786
9. That despite registration of the suit parcel of land in the name of the Respondent, the Applicant herein has continued to stay on the said parcel of land uninterrupted, undisturbed, and peacefully without any interference for over 12 years from 1994 July.
10. That the Applicant has been exercising all the rights of ownership over the said parcel of land number KISUMU/BAR/2785 and 2786 without any interference from the Respondent, and that she has built permanent structures which have taken more than 12 years.
11. That in the premise the Respondent’s proprietary interest in the land parcel number KISUMU/BAR/1893 have been extinguished by operation of the law and that he is now holding the same in trust of the Applicant.
12. That it would be just and equitable if the said parcel of land number KISUMU/BAR/2785 and 2786 should now be registered in the name of the Applicant by virtue of his continuous, peaceful, exclusive and uninterrupted occupation of the same for a period totalling to more than 12 years and or cumulative.
13. That it is in the interest of the overriding objective to grant the orders sought.
In response to the Originating Summons, the Respondents filed a Replying Affidavit sworn on 2nd November, 2023.
The evidence
Vide directions taken on 4th March, 2025, the matter was disposed of by Affidavit evidence and submissions.
The Plaintiff/Applicant relied on her Supporting Affidavit, sworn on 30th May, 2023, as her evidence. The applicant attached to the Supporting Affidavit the following documents: a copy of the title deed, a copy of newspaper extract, a copy of citation application and a copy of certificate of official search.
The Respondents’ evidence as contained in the Replying Affidavit, was that land parcel No. KISUMU/BAR/1893 ceased to exist when it was subdivided into parcel No. KISUMU/BAR/2785 and 2786, which are currently under different title holders. The respondents contended that the plaintiff never bought the land parcel NO KISUMU/BAR/1855. That land parcel KISUMU/BAR/1855 belonged to one Joseph Opondo Ochieng, who was an uncle to the respondents, who subdivided the land on 23/8/1990 to create KISUMU/BAR/1893 and 1894.
That land parcel No KISUMU/BAR /1893 remained in the name of Joseph Opondo Ochieng, who occupied it together with his only child, one Jane Adoyo Opondo, a first cousin to the respondents.
That the plaintiff only bought parcel KISUMU/BAR/1894, which she left vacant for some time until the year 2012, when she put up a semi-permanent house thereon and placed a caretaker in occupation thereof.
The respondents contended further that they filed a suit at the Kisumu Magistrate’s court, namely, Case No. ELC 190 OF 2018 against the applicant and obtained injunctive orders prohibiting the applicant from entering or doing anything on the suit land. That an appeal vide KISUMU ELC APPEAL NO E012 OF 2021 by the plaintiff against the Magistrate’s decision was dismissed with costs.
That the current status of land parcel No KISUMU/BAR/1893 is that the land was subdivided to create KISUMU/BAR 2785 and 2786. That parcel KISUMU/BAR2785 is in the names of the respondents and has commercial structures that had been developed by Joseph Opondo Ochieng, the original owner, while No. KISUMU/BAR/2786 is in the name of one Nevile Odalo. That the applicant has no structures on either of the two parcels of land.
Submissions
Written submissions dated 15th January, 2026 were filed on behalf of the Applicant. Counsel relied on the case of Richard Wafwafwa -vs- Ben Mungiwa Songoi [2020]eKLR, where the elements of adverse possession, which a claimant must prove, were identified as
a) the date the claimant came into possession,
b) the nature of his possession,
c) whether the fact of his possession was known to the other party,
d) the length (duration) of the possession has continued, and
e) whether possession was open and undisturbed.
Counsel also relied on the case of Wambugu -vs- Njuguna (1983)KLR 173 and Mtana Lewa -vs- Kahindi Ngala Mwangandi (2005)eKLR on the ingredients of adverse possession and submitted that the Defendants have never taken any steps to enter the suit land or assert their rights as the owners and yet the Plaintiff has been in open and notorious possession of the suit parcel of land to the knowledge of the Defendants herein who are the owners of the land as evident from the copy of certificate of official search produced before court.
That the Plaintiff took possession of the land way back in 1991 after purchase from the original owner. That the Plaintiff has constructed semi-permanent structures, planted trees, and cultivates the remaining portion.
Counsel submitted that time started running against the Defendants and in favour of the Plaintiff from the time the Plaintiff occupied the suit property and was engaged in acts that were inconsistent with the Defendants’ title. Further, that the Plaintiff has been in occupation of the land for a period in excess of 12 years, having inherited it from his father, who purchased it without any interruption for all that period. Counsel submitted that there was no evidence to contradict the averments by the Plaintiff.
Counsel urged the court to allow the claim.
On behalf of the Defendants, written submissions dated 26th January, 2026 were filed by Juliet Dima & Associates Advocates. Counsel submitted that adverse possession is governed by sections 7, 13, 17 and 38 of the Limitation of Actions Act. That the burden of proof lies on the Applicant.
Counsel relied on the case of Mtana Lewa -vs- Kahindi Ngala Mwandangi (2015)eKLR, where the court held that the possession must be peaceful, open, continuous, hostile to the title of the true owner, and the case of Titus Mutuke Kasure -vs- Mwam Investment Ltd & 4 Others [2004]eKLR, that a claimant must prove exclusive, continuous, and uninterrupted possession of at least 12 years over a clearly identifiable land.
Counsel submitted that the period when the land was registered in the name of the Applicant is irrelevant for purposes of adverse possession. That the applicant was required to prove that after losing title, she remained on the land openly, exclusively and without permission for a continuous period of 12 years.
Counsel submitted further that the Applicants’ pleadings were utterly contradictory. That adverse possession presupposes absence of lawful title and a possession which is hostile to the registered owner. That possession founded on lawful entitlement cannot be adverse.
Counsel further submitted that by lodging a caution on the suit land, the Applicant acknowledged the registered ownership of Jane Adoyo Opondo and asserted an alleged interest through a statutory process. That such conduct is inconsistent with adverse possession, which requires possession in denial of the owner’s title. Counsel relied on the case of Public Trustee -vs- Wanduru [1984]KLR 314, where it was held that where possession is interrupted by legal proceedings, time ceases to run for purposes of adverse possession.
That the Applicant cannot rely on time that was interrupted or stopped by judicial process.
Counsel submitted further that the Applicant failed to prove continuous and exclusive possession, that there were long gaps in occupation and particularly between 1994 and 2012, that the land remained vacant for long periods and that the Applicant only asserted possession around 2012 by erecting a temporary structure and placing a caretaker. That sporadic acts do not constitute continuous possession for purposes of adverse possession.
That the Respondents’ eviction suit and resultant decree decisively interrupted any alleged possession and broke the continuity required by law.
Counsel concluded that the Respondents lawfully acquired the suit land through succession proceedings and their titles remain valid and indefeasible. Counsel urged the court to dismiss the amended Originating Summons with costs.
Issues for determination
From the pleadings, the Affidavit and documentary evidence presented and written submissions filed by Counsel, the issues that emerge for determination are: -
(a) whether or not the Applicant is entitled to land parcel numbers KISUMU/BAR/2785 and KISUMU/BAR/2786 by reason of adverse possession
(b) whether or not the Respondents’ titles/interests in land parcel KISUMU/BAR/2785 and 2786 have become extinguished by operation of law, and whether therefore the Respondents are holding title over the suit land in trust for the Applicant.
(c) whether the Respondents’ title to the suit land should now be cancelled and the suit land be transferred in favour of the Applicant.
(d) Costs.
Analysis and determination
The first issue for determination is whether or not the Applicant is entitled to land parcel numbers KISUMU/BAR/2785 and 2786 by reason of adverse possession.
There is no dispute that these two land parcels are products of sub-division of land parcel number KISUMU/BAR/1893. The evidence placed before the court vide the copy of the title deed dated 29th June, 1993, is that at some point, the land parcel KISUMU/BAR/1893 was registered in the name of the Applicant, but that the said registration was cancelled in the year 1994 and the land was registered in the name of Jane Adoyo Opondo. The green card produced by the Respondents as exhibit shows that the land was registered in the name of Jane Adoyo Opondo on 18th February, 1994, and remained so registered until 20th July, 2017, when it was transmitted into the name of the Respondents herein upon succession to the estate of Jane Adoyo Opondo. The green card shows further that the title was later closed when the land was subdivided to create parcel numbers KISUMU/BAR/2785 and 2786.
The Applicant claims to have taken possession of the suit land in the year 1991. This claim was denied by the Respondents. The burden of proof of entry onto the land in the year 1991 and continuous, exclusive, open, peaceful, and uninterrupted occupation thereof for the requisite period of 12 years was with the Applicant. No witness was called to adduce evidence in support of the Applicant’s claim.
The Respondents’ case was that the Applicant put up temporary structures, but that the same were on land parcel number 1894 and only in the year 2012, and that the Applicant had not had continuous and exclusive possession of the land parcel number 1893.
The Applicant produced no photographs or surveyor’s report to show evidence of her occupation, particularly for the period before the year 2012, which was contested by the respondents.
Also produced as exhibits were a copy of the decree in KSM CMC EL CASE NO.190 OF 2018 and a copy of the judgment in KISUMU ELC Appeal NO. E012 OF 2021.
The decree shows that the Respondents filed the suit against the Applicant and obtained judgement for a permanent injunction restraining the Applicant and her agents from interfering in any way with land parcel No. KISUMU/BAR/1893. The copy of the judgment shows that an appeal against the said decree was dismissed with costs.
One way to terminate adverse possession is to bring legal proceedings against the trespasser (adverse possessor). The Court of Appeal in Civil Appeal No. 121 of 2006 Benson Mukuwa Wachira vs Assumption Sisters of Nairobi Registered Trustees [2016], affirming the decision in Amos Wer Murigu vs Marata Wangari Kambi & Others, held that
“as regards assertion of title, it is not enough for a proprietor to merely write to the trespasser (to vacate). A letter by the proprietor even if it is through an Advocate or the chief of the area does not amount to assertion of title in law and cannot therefore interrupt the passage of time for the purpose of computing the period of adverse possession. For there to be interruption, the proprietor must evict or eject the trespasser, but because eviction is not always possible without preach of peace, institution of suit against a trespasser does interrupt and stop time from running.”
Also in Githu vs Ndeete [1994] KLR quoted by the Court of Appeal 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 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.
The suit No. KISUMU CMC EL CASE NO.190 OF 2018 was filed by the respondents as the owners after the land was registered in their names in the year 2017 after succession to the estate of Jane Adoyo Opondo (see green card).
On the grounds that the Applicant has failed to prove date of entry onto the suit land and exclusive, adverse, open and continuous occupation and further given that the registered owners filed suit seeking to bar the Applicant from interfering with the suit land and obtained judgement and decree in their favour, I find that issue No.1 cannot be determined in the positive.
I find that the Applicant has not demonstrated to the required degree that she has acquired title to the suit land by adverse possession.
The second issue for determination is whether or not the Respondents’ title had become extinguished by operation of law.
Under Section 17 of the Limitation of Actions Act, the title of a registered owner becomes extinguished if the said registered owner fails to take action to assert his/her title within the limitation period. Having found that the Plaintiff failed to prove the date of entry onto the land or continuous occupation for a period in excess of 12 years, I find that the conditions in section 17 for the title to become extinguished have not been proved.
I further find that it has not been proved that the Respondents hold title in trust for the Applicant.
There is therefore no basis for finding or holding that the Applicant is entitled to an order of transfer of suit land in her favour. Further, no cause has been shown for making an order for cancellation of the respondents’ titles to the suit lands.
For the foregoing reasons, I find that the Plaintiff/applicant has failed to prove her claim on a balance of probabilities.
i. The suit is hereby dismissed.
ii. Costs to the Respondents.
Orders accordingly.
Judgment dated and signed at Kisumu and delivered virtually this 5th day of March, 2026.
E. ASATI,
JUDGE.
In the presence of:
Maureen - Court Assistant.
No appearance for the Plaintiff/applicant.
Atieno for the Defendant s/Respondents.
| ELC (OS) E022/2023 RULING Page 2 |