Ogendo v Miyare (Enviromental and Land Originating Summons E035 of 2021) [2025] KEELC 3994 (KLR)
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 Plaintiff is entitled to a portion of 0.05Ha to be hived off land parcel Kisumu/South West Ojola/4565 by reason of adverse possession for over 12 years
- 2.Whether the Defendant's proprietary interest in the suit land has been extinguished by adverse possession and whether he holds the title in trust for the Plaintiff
- 3.Whether the title issued in the name of Daniel Ochieng Miyare should be revoked and cancelled and the land transferred to the Plaintiff
- 4.Whether the costs of the Summons should be provided for and who should pay them
Key legal issues
#Whether the Plaintiff's occupation of the suit land was adverse
Occupation was not adverse; entry was permissive and no purchase was proved
The court found discrepancies in the sale agreements, no nexus between the sold parcel and the suit land, no witness to the 2003 agreement signed, and the Defendant's testimony that the Plaintiff was permitted to erect stalls during market renovation. Possession therefore remained permissive and could not ripen into adverse possession.
Whether the 12-year limitation period had elapsed
No - even from the 2010 last payment, 12 years had not elapsed by 2021 when the suit was filed
Taking the Plaintiff's own case at its highest, the agreement of 28th July 2010 stated the sale was closed; counting 12 years from that date, the period would expire in 2022, after the Originating Summons was filed in 2021. Entry in 2015 was with permission.
Whether the size/identity of the land claimed was sufficiently proved
The portion claimed was contradictory and unproved
The Originating Summons claimed 0.05Ha in one question but the whole 0.13Ha in the prayers; the sale agreement did not specify the size sold, and the Defendant also lived on the parcel. The portion adversely possessed must be definitely identified with a clear boundary.
Whether the Defendant's title was extinguished and held in trust
No, title was not extinguished
Since adverse possession and the statutory period were not established, section 17 of the Limitation of Actions Act was not triggered and no trust in favour of the Plaintiff arose.
Legal principles established
#- A person seeking title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse occupation for an uninterrupted period of 12 years
- The portion or size of land claimed must be pleaded and proved with definiteness
- Where entry is based on purchase, time runs from the last payment of the purchase price
- The Plaintiff bears the burden of proving adverse possession on a balance of probabilities
Court orders
#- 1.The Originating Summons is dismissed
- 2.Each party to bear own costs of the Originating Summons
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Limitation of Actions Act, Cap 22 (section 38) and sections 107-109 of the Evidence Act
Relief refused
#Declaration that the Plaintiff is entitled to the whole of land parcel No.Kisumu/South West Ojola/4565 by virtue of adverse possession
Adverse possession not proved; entry was permissive and the 12-year period had not elapsed
Declaration that the Defendant holds the land in trust and his interest is extinguished
Title not extinguished since the requisite period had not run
Revocation/cancellation of the Defendant's title and registration of the Plaintiff as proprietor
No basis to order cancellation absent proof of adverse possession; such a finding would violate the owner's property rights
Costs
Each party to bear own costs of the Originating Summons.
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.
I find that adverse possession has not been proved. Question 1 on the Originating Summons is determined in the negative.
In the present case the court finds that the Plaintifi/applicant has not proved her case on a balance of probabilities. The case is therefore hereby dismissed. Each party to bear own costs of the Originating Summons.
Where entry onto the land is on the basis of purchase, time begins to run from the date of the last payment towards the purchase price.
In a claim of adverse possession, the portion/size of the land claimed is a material fact that ought to be pleaded and proved.
Without such proof, a finding in favour of the applicant will amount to violation of the registered owner's right to property.
Issues in the judgment
#Internal contradiction in the Plaintiff's pleadings on the extent of land claimed - 0.05Ha in question (a) versus the whole 0.13Ha in the prayers, noted by the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogendo v Miyare (Enviromental and Land Originating Summons E035 of 2021) [2025] KEELC 3994 (KLR)", Case Analysis (2025). Originating Summons dated 26th August 2021 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3994/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.