Akello v Okeyo & another (Originating Summons E003 of 2023) [2026] KEELC 424 (KLR) (29 January 2026) (Judgment)

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MIGORI ORIGINATING SUMMONS NO. E003 OF 2023 KENNEDY OLUOCH AKELLO..…………….………………. APPLICANT VERSUS KENNEDY OLUOCH OKEYO………………………...1ST RESPONDENT DAVID OLUOCH OLUOCH………………………….2ND RESPONDENT (both sued as the legal representatives of Solo Oluoch (deceased)) JUDGMENT 1.By way of an Amended Originating Summons dated 18th March 2023 the applicant sought for determination of the following issues; 1) That the Applicant has acquired title to a portion of land reference number Kamagambo/Kameji/282 measuring approximately 3.10 Hectares by adverse possession 2) An order directing the respondent to sub divide land reference number Kamagambo/Kameji/282 and transfer to the applicant the portion measuring JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 1 approximately 3.10 hectares, and in default, all the necessary forms be signed by the deputy registrar of the High Court as the situation may require. 3) An order vesting title to a portion of that parcel of land known as land reference number Kamagambo/Kameji/282 measuring approximately 3.10 hectares in the name of Kennedy Oluoch Akello as the absolute proprietor. 4) An order directing the land registrar of Migori to register Kennedy Oluoch Akello as the absolute proprietor of the subdivided portion of land reference number Kamagambo/Kameji/282 measuring approximately 3.10 hectares. 5) Costs of the suit. 2. The Applicant pleaded, in a nutshell, that together with his family, he has been in consistent, exclusive and uninterrupted occupation use and possession of that portion of land reference no. Kamagambo/Kameji/282 since the year 1980s to date. Further, that they have planted trees on the suit land, tilled the suit land without interruption for over twelve years. JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 2 3. The 1st and 2nd respondents, Kennedy Oluoch and David Oluoch Oluoch, swore replying affidavits on 14th April 2023 in response to the summons. They stated that Kamagambo/Kameji/282 is ancestral land and is still registered in the name of Solo Oluoch who died in 2004. They urged that the applicant is a stranger and has never lived in the suit land and the owner of the purported structure on the land had died. He was a resident of Gem Asumbi – Range Constituency where he migrated to, died and was buried. 4. The matter proceeded for hearing with the Applicant calling 3 witnesses and the defence called 2 witnesses. 5. PW1 was Kennedy Oluoch Akello who testified that he has sued the defendants in relation to a parcel of land that is occupied by his family to wit; parcel number Kamagambo/Kameji/282 and it is registered under the name Solo Oluoch. That the suit land is ancestral land and he has been in occupation of the land since he was born and is now 44 years old. He stated that he has planted sugar cane, maize and trees and also put up a structure that I use to store farm produce. He stated that his grandfather who died in 1980s was JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 3 living on the land and is buried there as well as his grandmother, father, mother and other siblings. 6. During cross examination, he stated that he has a house on the parcel of land but currently lives in Nairobi. It was constructed in 2000 and is used to store farm produce and he currently has 3,500 bricks to construct a house. That the respondents are his neighbours and there is a clear demarcation of their parcel and his. He stated that Solo Oluoch was a grandfather to the respondents and denied that they were related. 7. PW2 was James Okello Saka who adopted his witness statement as evidence in chief. He testified that he knew the applicants since childhood and that they are his neighbours. Further, that they have been in consistent, exclusive and uninterrupted occupation of the suit land over the years and their grandfather, Osoro Ogire, was buried on the land in the 1980s. He stated that the house on the land belongs to the applicants and they have engaged him to work on the land on several occasions. 8. On Cross-examination he stated that the defendants come from Kamagambo in Migori County and the suit and belonged JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 4 to their grandfather. That the plaintiff is the only one who has been living on the land and cultivating it. 9. PW3 was George Ojijo Waganda who adopted his testimony as evidence in chief. He stated that the applicants have been in occupation of the suit land from childhood and he knew them as they are his relatives. Additionally, that their family members have been buried on the land and they have had consistent and uninterrupted possession of the land since the 1980s. He maintained that the Respondents have never been in use or occupation of the land. 10. The defendants then called their witnesses in support of their case. DW1 was Kennedy Oluoch Okeyo who placed reliance on the replying affidavit of 14th February 2023 and his witness statement. 11. He stated that the suit land wa ancestral land registered in the name of Solo Oluoch in 2004 and that Succession was ongoing. He denied knowing the plaintiff or that the plaintiff lived on the land. He stated that the photographs produced as PExh 1(a)-(e) were those of an old man who used to live on the land. He reiterated that Kennedy has never used the land and JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 5 that the people who use the land are known to him because the land is ancestral. Additionally, that he also uses the land. 12. During cross examination he stated that no one is residing on the parcel of land but it was being cultivated. That currently, there is sugarcane on the land but he does not know who planted it or who was using the land but it was possible that one of them had leased it. He further stated that he lives on a different parcel but also occupies part of the suit land. He further stated, upon being asked by the court, that he was 47 years old and that the old man who had come to live on the land left the house in 2018 but he could not recall when he came into it. 13. DW2 was David Oluoch who adopted the replying affidavit and his statement as evidence in chief. He stated that the suit land is ancestral land registered in the name of Solo Oluoch (deceased). Further, that the applicant is a stranger and has never lived on the parcel. He stated that the owner of the structure on the land migrated 12 years ago to Asumbi village in Rangwe Constituency. JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 6 14. On cross examination, he stated that he did not know Kennedy Oluoch Okello and that the land currently has sugarcane which was planted by an unknown person. He stated that he is not using the parcel of land and does not reside on the same. He did not know the old man who was living on the land and further, he did not know when he died. 15. Upon the courts’ enquiry, he stated that he started residing at home the previous year and that some of his brothers and step brothers are using the land and that was where they were born and have never moved out of the suit land since childhood. Further, that most of the things happened in their absence. 16. The defence closed their case and the parties were directed to file submissions. Counsel for the plaintiff filed submissions dated 11th July 2025 whereas the Respondents filed submissions dated 17th September 2025. Plaintiff’s submissions 17. Learned counsel for the plaintiff submitted that it is the Plaintiffs evidence that started occupying the suit parcel of land in the year 1980s and no person authorised him to occupy the JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 7 land; that been in consistent, exclusive and uninterrupted occupation, use and possession of a portion of land reference Number Kamagambo/Kameji/282 measuring 3.10 hectares since the year 1980s up to date. Further, that he built the structure/house in the year 2009 and has been using the same as a store; and that that he buried on the suit parcel of land his loved one who passed on being his grandfather, his grandmother, his mother and his father. He highlighted that the Plaintiff further gave evidence that he cultivates the said portion of the suit parcel of land, that he planted trees therein and urged that his evidence was corroborated by his witnesses who testified. PW2 in fact confirmed that for a long period of time, the Plaintiff has always engaged him and others to work for the Plaintiff on the said portion of the suit parcel. The built house and the trees plus the cultivation by the Plaintiff on the suit parcel was supported by the Plaintiffs exhibits la and b-the photographs taken from the suit parcel. 18. Counsel urged that the Plaintiffs occupation and use of the suit parcel of land has been without anybody’s consent, open, notorious to the exclusion and adverse to the title holder for an JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 8 uninterrupted period of over twelve years. The Defendants in fact confirmed to the court that they do not know who planted the sugarcane that currently are on the said portion of the suit parcel. This admission by the Defendants is an indication that they are not in control or use of the said portion of the suit parcel. It is our submission that the Plaintiff has thus acquired the said portion suit parcel of land measuring approximately 3.10 hectares through adverse possession by operation of the law. 19. Counsel submitted that adverse possession has been defined as a method of gaining legal title to real property by actual, open, hostile and continuous possession of it to the exclusion of its true owner for the period prescribed by law which is 12 years as per the Limitation of Actions Act, Cap 22 of the Laws of Kenya. He urged the Court to be guided by the Court of Appeal decision in the case of Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another [2015] eKLR. 20. He urged that the law on prescription affects not only the present title holders but also their predecessors as was held in JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 9 the case of Titus Kigoro Munyi v, Peter Mburu Kimani (2015) eKLR and the case of Karuntimi Raiji v. M’Makinya M’itunga (2013) eKLR. 21. Counsel submitted that under the doctrine of adverse possession, a claimant’s claim to the land runs against the title and not necessarily against the current holder of the title. The respondents ‘submission that he renewed the lease when he filed a succession cause and therefore the applicant’s rights had expired does not hold any water. Counsel cited the case of James Mwangi & Others - v- Mukinye Enterprises Ltd. Nairobi Civil Case no. 3912 of 1986 (sic) on the requirements to prove adverse possession. 22. On the issue as to whether the Respondents are holding title of the said portion of the suit land in trust for the Applicant, counsel cited the case of Gabriel Mbui v Mukindia Maranya [1993] eKLR. The Defendants’ grandfather’s rights over the said portion of the suit parcel of land were extinguished upon the attainment of 12 years of uninterrupted occupation by the Plaintiff. Counsel urged that the Plaintiff has proved before this Court by way of both viva voce and documentary evidence JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 10 that; He entered a portion of the suit parcel of land without the registered owner’s consent; He has been in occupation and use of the said portion of the suit parcel of land uninterrupted for over 12 years from the year 1980s; and his use of the said portion of the suit parcel of land has been notorious, open, to the exclusion of, and adverse to the registered owner. 23. Counsel urged that the Plaintiff has proved his case on a balance of probability and the same be allowed. Defendants’ submissions 24. Counsel submitted that a person who is not yet an appointed Administrator and to whom the title to property remains in the deceased’s name does not have locus standi (legal right) to transfer the property. That this is known as intermeddling and is illegal under section 45 of Laws of Kenya. He urged that whoever has been given grant of Succession must follow the succession process, the same must be confirmed and the title to be in his name, in this case the Defendants are Administrators yet the title is still in the Name of the deceased. 25. On Adverse possession, counsel urged that the claimant must have occupied the land continuously for at least 12 years, JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 11 without interruption. That in this case, the Plaintiff alleges that his father, now deceased, occupied the Parcel since 1980, and didn’t mention whether he himself ever lived there or used the parcel. Further, he failed to produce a grant ad litem suing on behalf of the deceased person. He therefore lacks locus to institute a suit, and the grant produced was in respect to the defendants. 26. He submitted that the possession of the Land must be continuous, uninterrupted, which the Plaintiff failed to demonstrate through evidence, whether himself was in possession, he only alleges that he is cultivating it. He however lives in Rangwe in Homa - Bay County, and the Land is situated in Migori County. 27. He urged that it was very clear that the land is being used by many people, meaning there have been several interruptions by various occupiers. Counsel urged that the plaintiff only relies on the issue that his deceased relatives used to cultivate the parcel and there was no corroboration of his evidence. 28. Counsel urged that there was no surveyors report, copy of the title deed to confirm the total acreage of the land and JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 12 whether the Plaintiff is in actual occupation of the same. He urged that the plaintiff only stated that the Parcel is registered in the Name of Solo Oluoch and he only stated that the time of giving evidence there was no evidence to corroborate the same. Further, that PW1 confirmed that letters of grant bear the Defendants names not his, and if so, on whose capacity has he brought the suit. That PW2 and 3 are silent on whose capacity PW1 has brought the suit. He stated that merely cultivating the parcel is not a good reason for occupation. Analysis and Determination 29. Upon consideration of the pleadings and the testimonies of the witnesses, the following issue arises for determination; Whether the Applicant has acquired possession of the suit land by way of adverse possession 30. The doctrine of adverse possession is embodied in Section 7 of the Limitation of Actions Act, which is in these terms:- “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 13 it first accrued to some person through whom he claims, to that person.” 31. The Limitation of Actions Act makes further provision for adverse possession at Section 13 that: “ (1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land. JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 14 (3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12 (3), the land in reversion is taken to be adverse possession of the land.” 32. In the locus classicus of Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR, the court said:- “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 nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. 33. It follows that in order for a claim of adverse possession to succeed there are certain conditions that must be fulfilled. The JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 15 Court of Appeal in the case of Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR stated as follows:- “At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and section 38 of the Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land. Therefore the critical period for the determination whether possession was adverse is 12 years and the burden is on the person claiming to be entitled to the land by adverse possession to prove, not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land, that the adverse possessor has done acts on the land which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it. See Littledale v Liverpool College (1900)1 Ch.19, 21.” JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 16 34. From the law the authorities, when applied to the facts herein, the evidence tendered in court by the witnesses is clear that the applicants have been in occupation of the suit land since the 1980s. Further, that the same is registered in the name of Solo Oluoch. 35. Having considered the evidence tendered in court by written statements and documents, and the testimonies of the witnesses, it is clear that the applicant has proven his case on a balance of probabilities. He provided the title and also provided evidence of his occupation of the suit land vide the photographs that were provided as annexures. The defendants on their part admitted that they did not even known who had planted the sugarcane on the land or who had leased it out. This was something anyone in possession of the land would be able to point out. Failure to point out that important fact of occupation means that the respondents do not know whether the sugarcane belonged to the plaintiff or someone else. But the plaintiff say that he is the one in occupation. It therefore is correct to agree with him that he is the one in occupation of the portion he claims that he planted sugarcane on. Again, the JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 17 Plaintiff stated in evidence that he had been on the land for over the twelve years the law requires. That being the testimony and there no other evidence that the sugarcane was planted on the land in a period less than twelve years then it leaves this court with no choice than to agree with the plaintiff about the occupation. being Further, the defendants’ evidence on occupation lacked credibility and was not cogent. 36. In the event if it is that Solo Oluoch was indeed their grandfather, he passed away on the year 2004 and therefore, under section 7 of the Limitation of Actions Act, the since the plaintiff had been in occupation of the portion they occupied and claimed, they indeed proved that his title to the suit land was extinguished in regard to that portion and consequently, his Estate cannot claim the land at this juncture. 37. The upshot of the foregoing is that the applicants have proved their case on a balance of probabilities and therefore, the claim for adverse possession succeeds. 38. As a parting shot, one issue has bothered me in this matter: who to bear the costs of the Originating Summons. This is because as the Defendants testified before me, I read in them JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 18 a demonstration of the effects of poverty in action. I know well that since the Applicant has succeeded in the claim, he is, under Section 27 of the Civil Procedure Act, entitled to an award of costs because they follow the event. But under the said provision I have the discretion to order otherwise as I give reasons for doing so. I am ordering that each party is to bear their costs, and the reason then is, I saw poverty at work in the Respondents’ appearance. Thus, I do not wish that they experience more misery by being followed with execution for costs. But if they, for any reason think that I have not made the right decision in awarding the portion claimed by the Applicant and they appeal perchance they lose in the Appeal, I am not in control of the final orders the Court of Appeal will give. Assuming they lose the appeal and that Court orders that they bear the costs of both the Appeal and this Originating Summons, it shall have come to pass I will be counted among the wise who said in Swahili that, “mtaka vyote hukosa vyote”, meaning, “he who is greedy ends up losing it all.” JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 19 39. In the circumstances I enter judgment for the Plaintiff/Applicant against the Defendants/Respondents and order as follows; 1)A declaration is hereby issued that the Plaintiff, Kennedy Oluoch Akello, has acquired title by way of adverse possession a part of LR No. KAMAGAMBO/KAMEJI/282 which portion measures approximately 3.10 Ha. 2)The Land Registrar Migori is ordered, upon the portion of land occupied by the Plaintiff being surveyed by a surveyor, appointed at the cost of the Plaintiff and mutation forms drawn and presented by him, to register the Plaintiff as the proprietor of the said approximately 3.10 Ha the registrar is directed to register it accordingly. 3)The Defendants are ordered to sign the transfer documents in respect of the 3.10 Ha in thirty (30) days of ascertainment and presentation of the documents to him, in default of which the Deputy JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 20 Registrar of this Court shall execute the documents in place of the registered owner(s). 4)Each party shall bear their own costs in this suit. 40. Orders accordingly. JUDGMENT Dated, signed and Delivered virtually via the Teams Platform this 29th day of January 2026. HON. DR. IUR NYAGAKA JUDGE From 11:29 AM, in the presence of, Mr. Migele for the Plaintiff Agure for the Defendants JUDGMENT ELCOS E 003 OF 2023 D.O.D 22.01.2025 21