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)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant has demonstrated that the appeal is tenable
- 2.Whether the appellant is entitled to the orders sought in the memorandum of appeal
- 3.Whether the respondent proved his claim of adverse possession on a balance of probabilities
- 4.What is the acreage of the portion of the suit land claimed by the plaintiff
Key legal issues
#Whether the respondent proved adverse possession
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
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.
Whether the claim was over definite portions of land
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
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.
Burden of proof on the plaintiff
The respondent, as plaintiff at trial, failed to prove his claim on a balance of probabilities
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
#- 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
#- 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.The respondent to bear the costs of this appeal and the original suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
since the respondent owns the suit land jointly with the appellant, he cannot acquire that which he owns by way of adverse possession
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
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
The respondent to bear the costs of this appeal and the original suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.