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ELCPartially AllowedOriginating Summons with Notice of Motion dated 14th March 2025 (Bondo/Usenge land matter), Siaya

Onyango & another v Martin & another; Ogollah & 2 others (Interested Parties) (Enviromental and Land Originating Summons E007 of 2025) [2025] KEELC 6858 (KLR)

Environment and Land Court
9 October 2025
2,327 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Siaya court allowed an adverse possession claim over Bondo land to proceed, protecting the occupants from eviction until the full case is heard.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Siaya by Hon. Lady Justice A.E. Dena disposed of a preliminary objection dated 9th June 2025 and a Notice of Motion dated 14th March 2025 in an adverse possession suit commenced by Originating Summons over land parcel Bondo/Usenge/1943. The 2nd Interested Party objected that the suit was time barred under section 7 of the Limitation of Actions Act and res judicata, the applicants having previously filed Bondo MCELC No. E61 of 2024 which was dismissed. The applicants replied that the claim was within the statutory guidelines and that the former suit was struck out for want of jurisdiction and thus never decided on the merits. The court agreed: section 7 must be read with sections 13 and 38 of the Limitation of Actions Act, which allow a person claiming adverse possession of registered land to apply for registration as proprietor, so the suit is properly before the court. On res judicata, the court perused the ruling of Hon Douglas Ogoti and found the former suit was dismissed for want of jurisdiction, hence not heard and finally decided on the merits. Both limbs of the preliminary objection were dismissed. On the interlocutory application, the court declined to determine actual possession, noting competing claims by the applicants and Interested Parties, and held status quo orders would suffice, guided by authorities on the purpose of status quo orders. It ordered that status quo be maintained with no eviction of the plaintiffs, issued an inhibition against any registration of dispositions over the suit parcel, directed the orders to subsist pending hearing of the suit, and ordered costs to abide the outcome of the main suit.

Questions the Court framed

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

  1. 1.Whether the suit is barred by limitation under section 7 of the Limitation of Actions Act
  2. 2.Whether the suit is res judicata under section 7 of the Civil Procedure Act having regard to Bondo MCELC No. E61 of 2024
  3. 3.Whether the injunction sought in the Notice of Motion dated 14/03/2025 should issue

Key legal issues

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01

Limitation as a bar to an adverse possession claim

Holding

The preliminary objection on limitation fails; a section 38 application for registration as proprietor by adverse possession is properly before the court.

Reasoning

The court held that section 7 of the Limitation of Actions Act must be read together with sections 13 and 38, which entitle a person claiming to have become entitled by adverse possession to apply to the High Court (Land Court) for registration as proprietor. On that basis the suit is within the statutory guidelines and the limitation objection lacks merit.

p. 3
02

Res judicata

Holding

The suit is not res judicata because the former suit (Bondo MCELC No. E61 of 2024) was dismissed for want of jurisdiction, not on the merits.

Reasoning

Relying on section 7 of the Civil Procedure Act and the definition in Black's Law Dictionary requiring a final judgment on the merits, the court perused the ruling of Hon Douglas Ogoti and found the trial court had correctly held it lacked jurisdiction over an adverse possession claim. Absent a hearing and final decision on the merits, the res judicata plea fails.

p. 3
03

Interlocutory relief in an adverse possession claim

Holding

Status quo orders plus an inhibition suffice; the court will not determine actual possession at the interlocutory stage.

Reasoning

The court found itself duty bound to preserve the status quo in a claim premised on adverse possession, noting conflicting claims of possession by the applicants and the Interested Parties, which could only be resolved at full hearing, possibly with a site visit. Status quo, defined as the situation as it exists, safeguards the substratum of the dispute. Hence no eviction and an inhibition on registrations.

p. 4

Legal principles established

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  • A limitation objection to an adverse possession claim must be assessed with sections 13 and 38 of the Limitation of Actions Act, under which the claim is properly brought before the court
  • A suit dismissed for want of jurisdiction is not heard and finally decided on the merits and cannot found a plea of res judicata
  • A status quo order is an ancillary preservation order that does not depend on proof of a prima facie case, unlike an injunction

Court orders

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  1. 1.Preliminary Objection dismissed on both limbs of limitation and plea of res judicata
  2. 2.Status quo on the ground maintained to the extent that there shall be no eviction of the plaintiffs from suit property Bondo/Usenge/1943 by the defendants or their servants or agents or anyone claiming under them; parties to co-exist as they currently are, including the Interested Parties
  3. 3.Order of inhibition issued restricting the relevant land registrar against registration of any disposition in the register of land parcels Bondo/Usenge/1943
  4. 4.Orders in (2) and (3) to subsist pending the hearing and determination of the present suit
  5. 5.Costs to abide the outcome of the main suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Adverse possession claim over registered land under sections 13 and 38 of the Limitation of Actions Act, Cap 22; the magistrate's court having declined jurisdiction in favour of this court

Relief refused

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Injunction as sought in the Notice of Motion dated 14/03/2025 (in terms sought)

The court held that status quo orders suffice at the interlocutory stage, as the merits including actual possession cannot be determined before full hearing

p. 4

Costs

Costs shall abide the outcome of the main suit.

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 Preliminary Objection is hereby dismissed on both limbs of limitation and plea of res judicata
p. 5Disposition - preliminary objection
The status quo on the ground shall be maintained to the extent that there shall be no eviction of the plaintifis from the suit property Bondo/Usenge/1943 by the defendants or their servants or agents or anyone claiming under them
p. 5Disposition - status quo order
Further to (2) above an order of inhibition is hereby issued restricting the relevant land registrar against registration of any disposition in the register of land parcels Bondo/Usenge/1943
p. 5Disposition - inhibition
In view of the foregoing the suit was not heard and finally decided on merit. It therefore does not meet the legal threshold enunciated in section 7 of the Civil Procedure Act to be rendered res judicata
p. 3Res judicata
Costs shall abide the outcome of the main suit.
p. 5Costs

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, "Onyango & another v Martin & another; Ogollah & 2 others (Interested Parties) (Enviromental and Land Originating Summons E007 of 2025) [2025] KEELC 6858 (KLR)", Case Analysis (2025). Originating Summons with Notice of Motion dated 14th March 2025 (Bondo/Usenge land matter), Siaya. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6858/eng@2025-10-09

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