Odindo v Odindo (Environment and Land Appeal E028 of 2024) [2025] KEELC 6240 (KLR)
The bottom line
#The Environment and Land Court dismissed a brother's land appeal, confirming that land titles can be corrected for registration mistakes and lost after twelve years of occupation by another person.
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 trial court erred in finding that the Plaintiff had proved his case
- 2.Whether, in the alternative, the parties' titles as registered had been extinguished
- 3.Who to bear the costs of the Appeal
Key legal issues
#Whether the trial court erred in finding that the Plaintiff had proved his case
No. The Plaintiff proved a mistake in the registration of the suit parcels; the evidence including the surveyor's report showed the ancestral home was on parcel 268 allocated to him under Luo custom, and his title in 262 was registered by mistake.
The Plaintiff's claim was founded on mistake, not fraud. Evidence from PW1, corroborated by PW2 and PW3 and admitted by DW1, established that as the last-born son he remained on the ancestral home on parcel 268 since 1972, while the Defendant occupied and buried his family on parcel 262. The surveyor's report confirmed this. The Defendant's 2019 move onto parcel 268 was recent and driven, in the court's view, by greed. The mistake was proved to the required standard and justified rectification.
Whether, in the alternative, the parties' titles as registered had been extinguished
Yes. The parties had each occupied the parcels respectively without the other's permission for more than twelve years; the Appellant, out of possession of parcel 268 for over twelve years, could not recover it and his title was extinguished under Section 7 of the Limitation of Actions Act.
Both parties resided on their respective parcels since the 1972 subdivision without the other's consent, a period exceeding twelve years. Section 7 of the Limitation of Actions Act bars any action to recover land after twelve years, and Section 13 ties accrual to adverse possession. The Appellant admitted he only built on parcel 268 in 2019 on return from Tanzania. Even if rectification were wrong, his title to parcel 268 was extinguished by limitation.
Who to bear the costs of the Appeal
Each party to bear their own costs of the appeal, in order to foster the siblings' harmonious relationship despite costs ordinarily following the event under Section 27 of the Civil Procedure Act.
Section 27 of the Civil Procedure Act provides that costs follow the event unless the Judge for good reasons recorded opines otherwise. The parties are siblings and the younger won against the elder. To encourage harmonious relationships and foster the bond the parties shared from birth, the court exercised its discretion to order that each party bear their own costs of the appeal.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the conclusions reached by the trial court are to stand.
- The court may order rectification of the register where a registration was obtained, made or omitted by fraud or mistake, but not so as to affect the title of a proprietor who lacked knowledge of, did not cause, and did not contribute to the mistake.
- No action may be brought to recover land after twelve years from when the right of action accrued; title of a registered proprietor out of possession for over twelve years is extinguished.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear their own costs of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court at Ndhiwa
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court judgment (appeal vide a Memorandum of Appeal dated 11th June 2024)
Relief refused
#Appellant's prayer to allow the appeal, set aside the rectification of the register and be let into possession of parcel 268
The Respondent proved a mistake in registration under Section 80 of the Land Registration Act, and in any event the Appellant's title to parcel 268 was extinguished by over twelve years of adverse possession under Sections 7 and 13 of the Limitation of Actions Act
Costs
Each party to bear their own costs of the Appeal ('Thus, each shall bear their own costs of this Appeal.')
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.
It is not in dispute that the parties have resided on the sit lands for a long time, at least more than twelve years. I find no merit in this appeal and dismiss it.
Thus, to foster the bond these two parties shared from birth, may I let them go and 'fight' no more. Thus, each shall bear their own costs of this Appeal.
The respondent herein clearly proved that there was mistake in the registration of his brother and it should be rectified. The weight of the evidence, the analysis thereof and the conclusion arrived at were sound.
Thus, even if he were to be registered as owner of parcel No. 268, I doubt if his title can continue to exist and I do find that it is extinguished.
His thought now to move to parcel No. 268 is driven by sheer greed and intent to cause disharmony in the family.
Issues in the judgment
#The judgment does not state the case number of the appeal, the court or station by name, leaving the appeal number to be inferred from the Memorandum of Appeal dated 11th June 2024.
The judgment inconsistently states when the Respondent began occupying parcel 268, pleading 1979 but submissions and analysis say 1971, and the trial evidence refers to subdivision in 1972.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odindo v Odindo (Environment and Land Appeal E028 of 2024) [2025] KEELC 6240 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 11th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6240/eng@2025-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.