REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
ELC CASE NO. E038 OF 2024 (OS)
JOSEPHAT BARASA NYONGESA ……………………. APPLICANT
= VERSUS =
PHELISTER ATIENO OLWENGE
(Suing as the legal representative of the
Estate of the late Joseph Opondo Olwenge) …….. RESPONDENT
J U D G M E N T
INTRODUCTION
1. The Applicant, JOSEPHAT BARASA NYONGESA, instituted these proceedings by way of an Originating Summons dated 22nd October 2024 brought pursuant to Sections 7 and 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya, and Order 37 Rule 7 of the Civil Procedure Rules.
2. In the Originating Summons, the Applicant seeks a declaration that he has acquired title by adverse possession over a portion measuring approximately 1.9 hectare comprised in Land Parcel NO BUKHAYO/BUGENGI/351.
3. He further prays for orders that the Respondent’s title to the said portion be declared extinguished, that he be registered as the proprietor thereof, and that the Respondent do execute all the necessary transfer documents to facilitate such registration, failing which the Deputy Registrar of this Court be authorized to execute the requisite instruments on the Respondent’s behalf. The Applicant also seeks the costs of the suit.
4. The record shows that although the Respondent was duly served with the Originating Summons and subsequent hearing notices, she neither entered appearance nor filed any response to controvert the Applicant’s claim. Consequently, the matter proceeded for formal proof as an undefended cause.
THE APPLICANT’S CASE
5. At the hearing, the Applicant testified as PW1 and adopted as his evidence-in-chief his Supporting Affidavit sworn on 22nd October 2024, together with the documents annexed thereto.
6. The Applicant testified that he is a resident of Buriang’i Village, Esikulu Sub-location, Busia County. He stated that the suit property, Land Parcel NO BUKHAYO/BUGENGI/351 is registered in the name of the late Joseph Opondo Olwenge, whose estate is represented by the Respondent as the administratrix.
7. It was the Applicant’s evidence that he has been in actual, open and uninterrupted occupation of a portion measuring approximately 1.9 hectares of the suit property since the year 1959. During this period, he has continuously utilized the land by cultivating both food and cash crops, planting trees, and establishing his homestead thereon. He further testified that the homestead accommodates approximately fifty members of his extended family.
8. The Applicant maintained that his occupation has at all material times been open, peaceful, exclusive and without interruption or objection from either the registered proprietor during his lifetime or from his estate after his demise. According to him, the Respondent only surfaced in the year 2020 after obtaining Letters of Administration in respect of the estate of the deceased registered proprietor.
9. The Applicant further testified that the deceased proprietor had entered into an agreement to purchase the suit property from the Applicant’s late father but failed to complete payment of the agreed purchase price. Despite the incomplete transaction, the Applicant and his family remained in occupation and continued utilizing the land uninterrupted for several decades.
10. In support of his claim, the Applicant produced documentary evidence comprising copies of his National Identity Card, the Green Card relating to the suit property, an Official Search Certificate, the Grant of Letters of Administration issued to the Respondent, the alleged sale agreement, and photographs depicting his occupation, developments and activities on the land.
SUBMISSIONS
11. The Applicant filed written submissions in which counsel contended that the evidence placed before the Court satisfactorily established all the legal ingredients necessary to sustain a claim for adverse possession. Counsel submitted that the Applicant had proved actual, open, notorious, exclusive, peaceful and uninterrupted possession of the suit property for a period well in excess of the statutory twelve years prescribed under the Limitation of Actions Act.
12. It was further submitted that the Applicant has remained in occupation of the disputed portion since 1959, spanning approximately sixty-six years, during which period he has extensively developed the land by constructing permanent residential structures and undertaking agricultural activities. Counsel argued that the registered proprietor had long been dispossessed of the land or had discontinued possession thereof, thereby entitling the Applicant to ownership by operation of law.
13. In support of these submissions, counsel relied on Wambugu v Njuguna [1983] KLR 172, wherein the Court held that adverse possession is established where the registered proprietor has either been dispossessed of the land or has discontinued possession for the statutory period, and Ngati Farmers’ Co-operative Society Ltd -v- Councillor John Ledidi & 15 Others, in support of the principles governing acquisition of land by adverse possession.
14. From the pleadings, the evidence on record, and the submissions filed by the Applicant, I find that the following issues arise for determination:
a) Whether the Applicant has proved his claim for adverse possession over the portion measuring approximately 1.9 hectares comprised in Land Parcel No. BUKHAYO/BUGENGI/351.
b) Whether the Applicant is entitled to the reliefs sought.
c) Who should bear the costs of the suit.
On whether the Applicant has proved his claim for adverse possession over the portion measuring approximately 1.9 Ha comprised in Land Parcel NO BUKHAYO/BUGENGI/351
15. The law governing the acquisition of title by adverse possession is settled. Sections 7, 13, 17 and 38 of the Limitation of Actions Act provide that where a registered proprietor fails to assert his proprietary rights within the statutory period of twelve years while another person remains in adverse possession of the land, the proprietor’s title is extinguished and the person in possession may apply to be registered as proprietor.
16. The Court of Appeal in the case of Mtana Lewa -v- Kahindi Ngala Mwagandi [2015] eKLR succinctly explained the doctrine of adverse possession in the following terms:
“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 or stealth or 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. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act….”
17. The Court further observed that the doctrine is anchored on the principle that the law does not aid an indolent proprietor who has slept on his rights while another person has openly occupied and treated the land as his own for the prescribed statutory period.
18. Similarly in the case of Titus Mutuku Kasuve -v- Mwaani Investments Limited & 4 others [2004] KECA 161 (KLR), the Court of Appeal further held that a claimant must demonstrate exclusive possession that is open, continuous and uninterrupted for at least twelve years, either after dispossessing the owner or after the owner has discontinued possession.
19. This Honorauble Court being guided by the foregoing principles, the question then is whether the Applicant has established, on a balance of probabilities, that his occupation of the disputed portion has been actual, open, exclusive, continuous, uninterrupted and adverse to the interests of the registered proprietor for a period of at least twelve years.
20. In the present case, the Applicant testified that he has occupied approximately 1.9 hectares forming part of Land Parcel NO BUKHAYO/BUGENGI/351 since 1959. His evidence was that throughout this period, he had established his homestead on the land, cultivated both food and cash crops, planted trees and settled his family thereon. He testified that approximately fifty members of his family presently reside on the suit property. To demonstrate the nature of his occupation, he produced photographs depicting the developments undertaken on the land.
21. The Applicant further testified that neither the deceased registered proprietor nor his estate ever challenged or interrupted his occupation. According to him, the Respondent only came into the picture in 2020 after obtaining letters of administration in respect of the estate of the deceased proprietor. Notably, despite being duly served with these proceedings, the Respondent neither entered appearance nor filed any response to controvert the Applicant’s evidence. Consequently, the Applicant’s testimony remained unchallenged and uncontroverted.
22. The documentary evidence produced, including the Green Card and the Official Search, confirms that the suit property is registered in the name of the late Joseph Opondo Olwenge, while the Grant of Letters of Administration establishes the Respondent’s capacity as the legal representative of the deceased’s estate.
23. The Court also notes the Applicant’s evidence that the deceased had allegedly entered into a sale agreement with the Applicant’s late father but failed to complete payment of the purchase price. While that assertion forms part of the factual background, this Court is alive to the principle that where a claimant relies on adverse possession, the claim ultimately turns not on the validity of any sale agreement but on whether the claimant’s possession became adverse and continued uninterrupted for the statutory period. The existence or otherwise of the alleged sale agreement is therefore not determinative of the present claim.
24. Having carefully considered the evidence placed before the Court, I am satisfied that the Applicant has demonstrated actual, open, peaceful and exclusive possession of the disputed portion for a period far exceeding the statutory twelve years.
25. There is no evidence that the registered proprietor or his estate ever asserted their proprietary rights by taking legal action to recover possession or interrupt the Applicant’s occupation. The Applicant’s possession was therefore adverse to the title of the registered proprietor and continued uninterrupted for approximately six decades.
26. Accordingly, I find that the Applicant has proved, on a balance of probabilities, all the essential ingredients of adverse possession as enunciated in the above authorities. The first issue is therefore answered in the affirmative.
On whether the Applicant is entitled to the reliefs sought
27. Having found that the Applicant has proved his claim for adverse possession, the next question is whether he is entitled to the declaratory and consequential reliefs sought in the Originating Summons dated 22nd October 2024.
28. The legal consequence of a successful claim for adverse possession is that the registered proprietor’s title to the portion adversely possessed is extinguished by operation of law and the successful claimant becomes entitled to be registered as proprietor thereof.
29. This principle is expressly provided for under Section 17 of the Limitation of Actions Act, which stipulates:
“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.”
30. Further, Section 38(1) of the Act provides that:
“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37... he may apply to the High Court for an order that he be registered as the proprietor of the land in place of the person then registered as proprietor.”
31. The Court of Appeal in Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] KECA 161 (KLR) stated that:
“Section 38(1) of the Limitation of Actions Act chapter 22 Laws of Kenya authorizes a person who claims to have been entitled to land by adverse possession to apply to the High Court for an order that he be registered as proprietor in place of the registered proprietor”
32. In the present case, the Applicant specifically seeks registration as proprietor of approximately 1.9 hectares out of Land Parcel NO BUKHAYO/BUGENGI/351. The Court has already found that the Applicant has been in open, peaceful, exclusive and uninterrupted occupation of the said portion for a period exceeding six decades. Consequently, the Respondent’s title over that portion has been extinguished by operation of Sections 7 and 17 of the Limitation of Actions Act.
33. This Honourable Court is therefore satisfied that the Applicant is entitled to an order declaring that he has acquired title by adverse possession over the portion measuring approximately 1.9 hectares comprised in Land Parcel NO BUKHAYO/BUGENGI/351.
34. The Applicant also seeks an order directing the Respondent to execute all documents necessary to facilitate the transfer of the said portion, and in default, that the Deputy Registrar of this Court be authorized to execute the requisite instruments.
35. Such an order is both appropriate and necessary to give effect to the judgment of the Court. It ensures that the decree is not defeated by the unwillingness or inaction of the registered proprietor or the legal representative of the estate. Courts have routinely granted such consequential orders pursuant to Section 38 of the Limitation of Actions Act to facilitate implementation of successful adverse possession claims.
36. The Court also notes that the Applicant`s seeks registration of only a portion measuring 1.9 hectares out of the larger parcel NO BUKHAYO/BUGENGI/351. While the Court has found that the Applicant has acquired title to that portion by adverse possession, the evidence on record does not sufficiently delineate the precise boundaries of the portion to facilitate immediate transfer. In order to give effect to this judgment and to avoid future disputes, it is necessary that the portion adjudged to belong to the applicant be identified, surveyed and excised from the parent parcel by the County Surveyor, Busia County, in the presence of the parties or their representatives, before registration is effected.
37. Accordingly, I find that the Applicant is entitled to the declaratory and consequential reliefs sought in the Originating Summons dated 22nd October 2024, subject to the excising and survey of the portion measuring approximately 1.9 Hectares from Land Parcel NO BUKHAYO/BUGENGI/351 before registration in the Applicant’s name.
On who shall bear the costs of this suit?
38. The general principle governing the award of costs is set out under Section 27(1) of the Civil Procedure Act, which provides that costs shall follow the event unless the Court, for good reason, orders otherwise. The provision vests the Court with discretion as to costs, but such discretion must be exercised judicially and not capriciously.
39. In the present case, the Applicant has succeeded in proving his claim for adverse possession. The Respondent, despite being duly served with the pleadings and hearing notices, neither entered an appearance nor filed any response to challenge the Applicant’s claim. There are no exceptional or special circumstances that would justify this Court departing from the general rule that costs follow the event.
40. Accordingly, I find that the Applicant is entitled to the costs of this suit.
DECLARATION AND FINAL ORDERS
41. As a result, I find that the Applicant has proved his claim on a balance of probabilities. Consequently, judgment is hereby entered in favour of the Applicant against the Respondent in the following terms:
a) A declaration is hereby issued that the Applicant, Josphat Barasa Nyongesa, has acquired title by adverse possession over a portion measuring approximately 1.9 hectares (5 acres) comprised in Land Parcel No. BUKHAYO/BUGENGI/351.
b) It is hereby declared that the title of the estate of the late Joseph Opondo Olwenge, in so far as it relates to the aforesaid portion measuring approximately 1.9 hectares, has been extinguished by operation of Sections 7, 17 and 38 of the Limitation of Actions Act.
c) The County Surveyor, Busia County, shall, within ninety (90) days from the date hereof, visit Land Parcel No. BUKHAYO/BUGENGI/351, in the presence of the Applicant and the Respondent or their duly appointed representatives, for the purpose of identifying, surveying and excising the portion measuring approximately 1.9 hectares found by this Court to have been under the Applicant’s occupation and possession, and shall prepare the requisite survey records to facilitate its registration.
d) Upon completion of the survey and excision, the Land Registrar, Busia County, shall register the Applicant as the proprietor of the excised portion in accordance with the provisions of the Land Registration Act and issue him with the appropriate certificate of title.
e) The Respondent shall execute all the necessary transfer and registration documents within thirty (30) days of being called upon to do so after completion of the survey and excision, failing which the Deputy Registrar of this Court is hereby authorized to execute the requisite documents on behalf of the Respondent
f) The Applicant shall have the costs of this suit.
g) It is so ordered.
Judgment dated, signed and delivered in open Court on this 20th day of July 2026.
C. MUGAMBI
JUDGE
20TH JULY 2026
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