1. Before this Court for determination is the Originating Summons dated 30th May 2024 by which the Applicant seeks to be declared proprietor of seven (7) acres out of land parcel number Bokoli/Mukuyuni/847 by way of adverse possession, and for consequential orders vesting the said portion in his name.
2. The Originating Summons is supported by the Applicant’s affidavit sworn on 30th May 2024. The Applicant depones that he entered into a sale transaction with the Respondent in the year 1964 for the purchase of seven acres of the suit land, the consideration being twelve heads of cattle, partly paid in kind and partly converted into monetary equivalents, all of which were duly settled within the same year.
3. The Applicant further avers that upon completion of the consideration, he was granted vacant possession of the said portion in 1964, entered into occupation immediately, and has since remained in open, peaceful, exclusive, and uninterrupted possession thereof for a period exceeding sixty (60) years, well beyond the statutory twelve years contemplated under the Limitation of Actions Act.
4. Despite being duly served, the Respondent neither entered appearance nor filed any response, and the matter therefore proceeded undefended. The Applicant testified as PW1, adopted his supporting affidavit as evidence, and produced the sale agreements and payment acknowledgements as exhibits.
5. The Applicant also filed written submissions wherein he reiterated the factual foundation of his claim and relied on settled authorities, including Kasuve v Mwaani Investments Ltd & Others [2004] 1 KLR 184, Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, and Joseph Gachumi Kiritu v Lawrence Munyambu Kabura (Civil Appeal No. 20 of 1993).
6. Having considered the pleadings, the uncontroverted affidavit and oral evidence, and the submissions on record, the sole issue for determination is whether the Applicant has proved, on a balance of probabilities, that he has acquired title to seven acres out of land parcel Bokoli/Mukuyuni/847 by adverse possession.
7. The law on adverse possession in Kenya is now firmly settled. Section 7 of the Limitation of Actions Act bars an action to recover land after the expiry of twelve years from the date the right of action accrued. Sections 13 and 17 thereof provide for the extinguishment of the registered owner’s title upon the lapse of the limitation period, while Section 38 empowers this Court to order registration of a successful claimant as proprietor.
8. The essential ingredients of adverse possession were restated by the Court of Appeal in Kasuve v Mwaani Investments Ltd & Others (supra) to include open, exclusive, continuous, and uninterrupted possession for a period of at least twelve years, adverse to the interests of the true owner.
9. In Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, the Court of Appeal further clarified that adverse possession is possession that is neither by force, nor secrecy, nor permission, but one that is inconsistent with the enjoyment of the land by the registered proprietor.
10. In the present case, the Applicant’s evidence demonstrates that he entered the suit land in 1964 pursuant to a sale transaction, took possession openly and as of right, and has remained in occupation continuously ever since. Although entry was initially pursuant to an agreement for sale, it is settled law that where completion does not occur and the registered owner fails to assert his rights within twelve years, such possession becomes adverse. See Public Trustee v Wanduru [1984] KLR 314.
11. The Applicant’s occupation has not been shown to have been interrupted at any time. There is no evidence of eviction, assertion of title, demand for vacant possession, or any act by the Respondent indicative of control or re-entry over the suit land for well over five decades.
12. While this Court is alive to the principle that a claimant bears the burden of proof even where a matter is undefended, it must equally be noted that uncontroverted evidence which is credible, consistent, and plausible does not require corroboration for its own sake. The Respondent, having failed to rebut the Applicant’s sworn testimony, left the evidence standing unchallenged.
13. The sale agreements and payment acknowledgements produced by the Applicant, though not instruments of transfer, provide historical context explaining the genesis of possession and lend credibility to the Applicant’s assertion of long, peaceful occupation commencing in 1964.
14. The length of occupation in this matter is not marginal; it is extraordinary. Possession spanning over sixty years, without interruption or challenge, irresistibly leads to the conclusion that the Respondent’s title, to the extent of the seven acres claimed, was long extinguished by operation of law.
15. This Court is satisfied that the Applicant has proved all the elements of adverse possession to the required standard. The justice of this case lies in recognising long-settled possession and bringing the register into conformity with the factual reality on the ground.
16. Consequently, the Originating Summons dated 30th May 2024 is hereby allowed in the following terms:
a) A declaration is hereby issued that the Applicant has acquired title by adverse possession to seven (7) acres out of land parcel number Bokoli/Mukuyuni/847.b) The Respondent’s title to the said seven (7) acres is hereby extinguished.
c) The Land Registrar, Bungoma County, is directed to excise the said seven (7) acres and register the Applicant as proprietor thereof.
d) The Respondent is ordered to sign and execute all the necessary documents to effect the transfer in favour of the Applicant failing which the Deputy Registrar to sign and execute the same.e) The Respondent, his agents, or servants are permanently restrained from interfering with the Applicant’s quiet possession of the said portion.
f)Each party shall bear their own costs.
17. It is so ordered.
DATED, SIGNED and DELIVERED at Bungoma this 18th Day of December, 2025.
……………………………………HON. E. C. CHERONOELC JUDGE
In the presence of;
1. Mr. Makokha for the Plaintiff/Applicant.
2. Defendant/Respondent-absent
3. Bett C/A.