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ELCAllowedEnvironment and Land Appeal E037 of 2022

Odero (Suing as the Administrator of the Estate of Caren Aomo Odero - Deceased) v Siso (Sued as the Administrator of the Estate of Siso Ongono Alias Joseph Siso Omolo - Deceased)

Environment and Land Court
21 November 2023
2,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Homa Bay against the judgment of Hon. Tom Olando, Principal Magistrate, delivered on 4th August 2022 in Homabay CM ELC No. E048 of 2021, in which the trial court entered judgment for the respondent as prayed. The respondent, as administrator of the estate of Siso Ongono, had sued for a declaration that a portion of approximately 0.4 hectares of land parcel Kanyada/Kanyabala/1169 (or alternatively 1168) had been acquired by adverse possession, an order for excision and registration, and a permanent injunction. The appellant, administrator of the estate of Caren Aomo Odero, appealed on grounds that the trial court decided on speculation, that no surveyor's report established the portion occupied, and that adverse possession was not proved. GMA Ongondo, J, rehearsed the first appellate court's duty to re-evaluate the trial record. The court found that the green card showed the suit land measured only 0.07 Ha, that no surveyor's report fixed the portion claimed, and that the claim was not over definite portions. Applying the Wilson Kazungu Katana ingredients, the court held that the land was registered partly in the name of the respondent's own late father, so he could not acquire it by adverse possession, and that PW1's cross-examination showed entry was permissive. The respondent therefore failed to prove his claim on a balance of probabilities. The appeal was allowed with costs of the appeal and the original suit awarded to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant has demonstrated that the appeal is tenable
  2. 2.Whether the appellant is entitled to the orders sought in the memorandum of appeal
  3. 3.Whether the respondent proved his claim of adverse possession on a balance of probabilities
  4. 4.What is the acreage of the portion of the suit land claimed by the plaintiff

Key legal issues

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01

Whether the respondent proved adverse possession

Holding

The claim failed the Katana test: the land was registered partly in the name of the respondent's own late father, and entry was permissive

Reasoning

The suit land was registered in the names of the respondent's late father and the appellant's late mother, as shown by the green card. The Katana test requires the land to be registered in the name of a person other than the applicant. Further, PW1 admitted in cross-examination that the appellant's late grandfather gave the family the land and welcomed them onto it, so possession was permissive, not adverse.

p. 5
02

Whether the claim was over definite portions of land

Holding

No surveyor's report was produced; the green card showed the total acreage as 0.07 Ha, so the claim for 0.4 Ha was not over definite portions

Reasoning

The plaintiff averred the portion he occupied measured 0.4 Ha on the ground, but the green card (PExhibit 5) showed the total acreage of the suit land as 0.07 Ha. No surveyor's report was produced to ascertain the actual acreage occupied. The claim for a portion larger than the whole registered parcel was therefore not sustainable.

03

Burden of proof on the plaintiff

Holding

The respondent, as plaintiff at trial, failed to prove his claim on a balance of probabilities

Reasoning

Guided by Section 107 of the Evidence Act, whoever desires a court to give judgment on facts he asserts must prove those facts. The respondent bore the burden of proving adverse possession and the definite portion claimed, and failed on both counts, warranting reversal of the trial court's judgment.

Legal principles established

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  • A first appellate court is obliged to review the record of the trial court, evaluate it and arrive at its own conclusions
  • A co-owner in possession of jointly registered land cannot acquire it by adverse possession
  • Possession commenced with the owner's permission cannot be adverse

Court orders

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  1. 1.The appeal lodged by way of a memorandum of appeal dated 25th August 2022 and filed on 29th August 2022 succeeds and the orders sought therein are granted accordingly
  2. 2.The respondent to bear the costs of this appeal and the original suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Homabay Chief Magistrate's Court
Environment and Land Case No. E048 of 2021
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment and decree in Environment and Land Case No. E048 of 2021

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the instant appeal being the first one from the trial court in the matter, I am obliged to review the record of the trial court, evaluate it and arrive at own conclusions in this appeal
duty of first appellate court
since the respondent owns the suit land jointly with the appellant, he cannot acquire that which he owns by way of adverse possession
p. 5adverse possession against co-owner
Clearly, the entry of the respondent's family onto the suit land was with the owner's permission. Therefore, the applicant cannot be heard to claim that his possession and use of the suit land was without the consent of the owner
p. 5permissive possession defeats adverse possession
Wherefore, the instant appeal lodged by way of a memorandum of appeal dated 25th August 2022 and filed herein on 29th August 2022 hereby succeeds and the orders sought therein are granted accordingly
p. 5disposition
The respondent to bear the costs of this appeal and the original suit
p. 5costs order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Odero (Suing as the Administrator of the Estate of Caren Aomo Odero - Deceased) v Siso (Sued as the Administrator of the Estate of Siso Ongono Alias Joseph Siso Omolo - Deceased)", Case Analysis (2023). Environment and Land Appeal E037 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21677/eng@2023-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.