1. The Applicants filed an amended originating summons dated 03/08/2022 seeking the determination of whether they have acquired adverse possession over land parcel no. LR No’s West Bukusu/South Mateka/1892 which has since been sub-divided into 6174,6175,6176,6177,6178,6179,6180 and 6181 by virtue of adverse possession and whether they deserve to acquire vacant possession and have the relevant transfer documents executed by the Respondents or the Deputy Registrar and transferred to them upon the county surveyor and land Registrar confirming acreage of the land on the ground. They also sought for the determination of whether the respondents ought to be permanently injuncted from interfering with their occupation.
2. The summons are supported by the affidavit of the 1st Applicant wherein he deposed that in the year 1975 the Applicants purchased 23.42 Acres comprised in land parcel no. LR No’s West Bukusu/South Mateka/1892(hereinafter referred to as “the suit land”) registered in the name of Lazaro Wandabusi-deceased whose estate is represented by the Respondents. That the said land has been their known home as they have put up constructions thereon and their parents are buried therein.
3. The Respondents filed individual replying affidavits both sworn on 11/02/2019 and 12/03/2020 where they averred that the late Lazaro Wandabusi was their father who died on 11/06/1998. That the deceased was the sole registered owner of the suit land. That the family conducted succession proceedings wherein the 1st Respondent was appointed as the administrator and the said land was subsequently sub-divided into LR No’s West Bukusu/South Mateka/6174-6181 and shared amongst the beneficiaries.
4. The suit proceeded by way of viva voce evidence.
5. PW1 Gerald Nalo Ongado adopted as his supporting affidavit dated 24/05/2019 as his evidence in chief. He averred that the suit land was registered in the name of Lazaro Wandabusi-deceased and that their father purchased 23 acres on 03/11/1975 at Kshs. 900/= per acre thus Kshs.20,7000/=. That a down payment of Kshs.14,000/= was paid at the time of signing the agreement leaving a balance of Kshs.6,680/=. That a further Kshs. 2,810/= was paid on 12/01/1976 and the balance was to be paid at a later date which was completed. He produced s documentary evidence his list of documents dated 24/05/2019 PExhibit 1-9 and a further list dated 02/10/2019 10(a)-(r).
6. It was his testimony that the vendor then moved from the land giving their father possession where they constructed houses and resided therein. That the vendor during his lifetime did not take them to court as trespassers but instead initiated for a consent at the Land Control Board. That the issue currently in court was initially heard before the District Commissioner and village elders and the decision reached was that the vendor had indeed sold the land. During cross-examination the witness testified that the vendor declined to transfer the suit property to them claiming that he had not been paid the full purchase price. He could not prove that the balance was indeed paid.
7. PW2 Jenefa Okuyoti Owino relied on the supporting affidavit annexed to the originating summons dated 22/02/2021. She testified that she is married into the family of the other applicants. That she has resided in the suit land since the year 1978.
8. PW3 Wilson Oduor Ongado gave sworn testimony and was referred his witness statement which he adopted as his witness statement as well as an affidavit sworn on 29/11/2018. He testified that he entered into the suit land in the year 1976 after the same was bought by their father.
9. DW1 Silvester Barasa Wandabusi gave sworn testimony and adopted the replying affidavit dated 19/02/2019 as his evidence in chief. He produced into evidence a list of documents as D-Exhibit 1-7, a further list of documents dated 03/07/2020 containing 12 items as D-Exhibit 8-12 and a further list dated 13/06/2025 as D-Exhibit 20-23. He testified that the suit land measures 23 ½ acres belongs to his father. He admitted that the Applicants have lived in the land since 1976 and reside therein to date. That his father moved out of the land in the year 1976 and that the dispute over the suit land was initially litigated at the Land Disputes Tribunal which award was adopted by the Chief Magistrates Court. That the family did succession and thereafter sub-divided the same where LR No’s West Bukusu/South Mateka/6174 went to Peter Wandabusi, parcel 6175 went to Charles Juma Wandabusi, parcel 6176 Constance Wesonga Wandabusi, parcel 6177 to Jackson Wekesa Wandabusi, parcel 6178 Julius Wandambusi, parcel 6179 Patrick Wabwile Wandambusi and parcel 6180 went to Silvester Barasa Wandambusi. That none of the registered owners reside in the suit land. He denied the alleged sale by his father.
10. DW2 Charles Juma Wandabusi, DW3 Julius Mabonga Wandambusi and DW4 Peter Barasa Wandabusi adopted their replying affidavits sworn on 11/02/2019 as their evidence in chief and produced the annexures thereto as D-Exhibit 1-5. They reiterated the evidence of DW1 above.
11. The applicants filed submissions dated 15/12/2025 in support of the claim for adverse possession over the original land parcel NO. West Bukusu/South Mateka/1892, now subdivided into Land parcels NO. W.BUKUSU/S.MATEKA/6174–6181, on the basis that their late father purchased the land in 1976 from the Respondents’ father, with both parties obtaining Land Control Board consent for the intended transfer. A subsequent dispute was heard in Land Case No. 75 of 1996, where the Land Disputes Tribunal found that the seller had received full consideration and ordered transfer of the land to the buyers, a decision later adopted by the Bungoma SPM Court and upheld by the Provincial Appeals Committee in Case No. 11 of 1995. These three determinations have never been appealed or set aside.
12. The Applicants contend that the Respondents later attempted to bypass these binding decisions through succession proceedings that excluded them, despite the confirmed grant and green card entries expressly setting aside nine acres “for buyers,” with no buyers identified other than the applicants’ family. That the Respondents’ own witnesses acknowledged that their father sold the land, that no other buyers exist, and that the Applicants have peacefully occupied the land. Relying on the sale agreement, Land Control Board consent, tribunal and appellate decisions, and the trust entry on the green card, the Applicants argue that the cumulative evidence confirms their family’s purchase and long, uninterrupted occupation, thereby entitling them to the orders sought. Reliance was placed in the cases of Busia ELC Case E019 of 2021, Josephat Charles Onganda Vs. Alice Wanyama Juma & 2 Others and Busia HC ELC Case No. E001 of 2023(O.S) The Chairman, Luanda Cotton Farmers & Another Vs. Small and Company Limited Samia Ginnery.
13. The Respondents filed submissions dated 18/12/2025 where they argued that the Applicants’ claim for adverse possession cannot stand because their occupation began in 1975 with the express permission of the registered owner, Lazaro Wandabusi, as admitted by PW1. They contend that the Applicants’ possession was never peaceful or uninterrupted, pointing to numerous disputes and court cases between the parties beginning in 1980 only five years after entry and continuing through 1986, 1988, 1995, and 1997. They further observed that the defendants’ attempts to access the land were met with hostility, and that the Applicants’ exclusivity resulted from conflict, not adverse possession. Citing appellate authority confirming that permissive and disputed occupation cannot mature into adverse possession, they submit that the statutory requirements were not met and urged the Originating Summons dated 3 August 2022 be dismissed with costs.
Analysis and determination.
14. I have carefully and anxiously considered the parties’ respective pleadings, evidence and the submissions including the issues framed therein. In my view, the issues that distil for determination in this suit are as follows;
a) Whether the Plaintiff has met the threshold for grant of orders of adverse possession and
b) who shall bear the costs?
15. The doctrine of adverse possession in Kenya is founded under Limitation of Actions Act, CAP 22 Laws of Kenya i.e Section 7, 13 and 37. The doctrine of adverse possession was aptly defined in Mtana Lewa - v- Kahindi Ngala Mwangandi (2015) eKLR where 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 to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force of stealth not under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”
16. From the above definition, adverse possession can only arise out of non-permissive possession. In this case and from the evidence presented, it is undisputed that the Applicants entered into the suit property in 1976.What is disputed is the circumstances under which they entered the said land. On their part, the Applicants assert that their father purchased the suit vide an agreement dated 03/11/1975 where a part payment and subsequent instalment was made leaving a balance of about Kshs.3,870/= which they claim was eventually paid despite there being no evidence to this effect.
17. The Respondents on the other hand claim that that their deceased father did not sell the land to the Applicants deceased father and father-in law. It is however noted that the evidence by the Respondents was that they vacated from the suit property around the year the Applicants claim the said purchase was made. This in my view suggests that the Respondents led by their father gave vacant possession to the Applicants family to give effect to the said sale.
18. Courts have held time without number that it is not a strange phenomenon to allow a purchaser possession of the property being sold before the transaction is completed. Therefore, such a purchaser is not allowed onto the property as a trespasser, but they are understood to be on the land with permission from the registered owner. Time for the purposes of adverse possession begins to run from the date of payment of the last instalment as this connotes that the adverse possessor no longer remains on the land under the auspices of the said permission making the registered owner aware of the risk of losing his title.
19. This element of permissive possession was well explained in Gabriel Mbui - v- Mukindia Maranya (1993) eKLR, where Rtd Justice Kuloba had this to say:-
“(3)The occupation of the land by the intruder who pleads adverse possession must be non-permissive use, i.e. without permission from the true owner of the land occupied. It has been held many times that acts done under licence or permitted by, or with love of, the owner do not amount to adverse possession and do not give the licensee or permitted entrant any title under the limitation statute. If one is in possession as a result of permission given to him by the owner, or if he is in possession of the land as a licensee from the owner, he is not in adverse possession. Permissive occupation is inconsistent with adverse possession. The stranger must show how and when his possession ceased to be permissive and became adverse.The rule on permissive possession is that possession does not become adverse before the end of the period during which one is permitted to occupy the land…where possession was consensual or contractual in its inception, it cannot be called “adverse”. Thus, when possession is given by the vendor in pursuance of a sale, it is by leave and licence of the vendor; it is not just taken… The actual possessor must have usurped the land without leave. Possession by leave and licence of the owner is not adverse possession, for then the owner who has given leave has no cause of action during the time span of his permission or licence and the limitation period does not run against him until the licence has ended. If possession has commenced and continued in accordance with any contract, express or implied, between the parties in and out of possession, to which the possession may be referred as legal and proper, it cannot be presumed adverse. So also in cases between mortgagor and mortgagee. The ingredient of unpermitted occupation is usually expressed as “hostile” possession, to emphasize that “hostility” is the very marrow of adverse possession. And to say that possession is hostile means nothing more than that it is without permission of the one legally empowered to give possession. Any kind of permissive use, as by a tenant, licensee, contract purchaser in possession, or easement holder, is rightful and not hostile. Any time an adverse possessor and owner have discussed the adverse possession, permissive agreement may have occurred, and that destroys adverse possession (Cobb v Lane [1952] 1 All E R 1199; Denning, MR, in Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and B P Ltd [1974] 3 All ER 575 at p 580; Chanan Singh, J, Jandu v Kirpal and another (1975) EA 225 at pp 233, 234, 237; Madan, J (as he then was), in Gatimu Kinguru - v- Muya Gathangi, 1[1976] Kenya L R 253, at pp 257, 258);”
20. Applying this to the present case, this court observes that the Applicants entry in 1976 was pursuant to a sale agreement and therefore permissive. This court has also considered the findings of the Provincial Land Disputes Appeals Tribunal which stated that the relevant receipts in support of payment of the consideration were produced and they determined that the entire amount was paid and therefore ordered for the transfer of the suit land from Lazaro Wandabusi to Charles Owino and John Okelo Ongado. There is no evidence that the decision of the said tribunal was ever overturned and no further evidence has been placed before this court challenging the Applicants occupation of the land. The evidence before court shows the transaction was known to the family and lends credence to the Applicants uninterrupted occupation claim.
21. In this case, the Defendant’s omission to cancel the agreement or to take any measures to remove the Plaintiff from the suit property must be construed as neglect or inaction, thereby triggering the computation of time under Section 7 of the Limitation of Actions Act. Further, the Plaintiff’s activities on the land were not only consistent with ownership but were also open, continuous, and unequivocal. These acts of possession were neither hidden nor clandestine. The sustained development of the land by the Applicants demonstrates a clear and deliberate intention to possess and occupy it as of right. Established jurisprudence confirms that such open and notorious possession is sufficient to notify a reasonable registered owner of the occupier’s assertion of ownership.
22. Taking all the evidence into consideration, this court finds that the Plaintiff has discharged the burden of proof required under Section 107 and 109 of the Evidence Act, having demonstrated factual possession, animus possidendi (intention to possess), and a lapse of the statutory period without interruption.
23. Accordingly, the amended originating summons dated 03/08/2022 is hereby allowed as prayed.
24. Orders Accordingly.
DATED SIGNED and DELIVERED VIRTUALLY this 12th day of FEBRUARY, 2026.
……………………………..
HON.E.C CHERONO
ELC JUDGE
In the presence of;
1. M/S Masengeli for the Respondent.
2. Applicant/Advocate-absent.
3. Diana Kemboi C/A.
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