Venah v Ogony & 3 others (Environment and Land Case 19 of 2023) [2026] KEELC 3078 (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 Applicant has established the elements of adverse possession in relation to the portion of the suit property that he is claiming
- 2.Whether the Applicant is entitled to the reliefs sought in his Originating Summons
- 3.Who should bear the costs of the suit
Key legal issues
#Whether the Applicant proved adverse possession of 2 acres of the suit property
No - the Applicant failed to prove entry and non-permissive possession, cultivation of the disputed portion, identification of the portion claimed, and knowledge by the registered owner
The court found no evidence of how the Applicant's parents entered the land or with what intention, no proof the trees were planted by the Applicant rather than the Respondents, no survey or measurement supporting the 2-acre claim, and compelling contrary evidence from the Respondents' witnesses, some of whom were the Applicant's own relatives and whose evidence was unshaken in cross-examination.
When time begins to run for adverse possession against a proprietor presumed dead under section 118A of the Evidence Act
Time could only start running when Oloo Moi was presumed dead and a grant of letters of administration issued in 2021, since possession must be with the knowledge of the registered owner
Relying on Wines & Spirits Kenya Limited v George Mwachiru Mwango, the court held that possession must be with the knowledge of the registered owner. Oloo Moi disappeared in the 1930s, before registration, and could never have known of the occupation. Section 80(2) of the Law of Succession Act provides that a grant takes effect only from its date; hence time began running only in 2021, far short of 12 years.
Whether the 2-acre extent of the disputed portion was proved
No - there was no survey report or measurements; the photographs bore markings without measurements
The Applicant produced only photographs with markings indicating an alleged area within a tree plantation. The markings had no measurements, approximate or otherwise, and there was no clear evidence where Plot No. 1931 ended and the claimed portion of the suit property started and ended. Identification of the portion is an integral part of proving adverse possession.
Whether the objection to the joint replying affidavit of the 2nd and 3rd Respondents was sustainable
No - it was raised for the first time in submissions and no law bars parties from jointly swearing an affidavit
The Applicant objected to the joint replying affidavit only in submissions, not at trial. The court held the objection was raised too late and that there is no legal bar to a joint affidavit.
Legal principles established
#- Time for adverse possession cannot run against a registered owner who has no knowledge of the occupation; where the owner disappeared decades before, time only begins to run once he is presumed dead and a legal representative of his estate is appointed
- A claimant for adverse possession of a portion of land must identify and prove the exact portion claimed
- A party may not raise an objection to a jointly sworn replying affidavit for the first time in submissions
Court orders
#- 1.The Originating Summons dated 15th May 2023 is dismissed with costs to the 1st, 2nd and 3rd Respondents
- 2.The Deputy Registrar shall return the original court file for Maseno Senior Principal Magistrate's Court Succession Cause No. 26 of 2017, which was produced as an exhibit in this matter, to that court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under article 162(2) of the Constitution (adverse possession claim over land)
Relief refused
#Declaration of title by adverse possession to 2 acres
The Applicant did not prove entry, non-permissive possession, identification of the portion, or possession with the knowledge of the registered owner
Declaration of absolute title by adverse possession
Statutory period not established; time could not run against an owner who had disappeared and could not have known of the occupation
Order for registration of the Applicant as absolute proprietor
Claim failed; no order for transfer could issue
Declaration of overriding interest and that the 1st Respondent lost his right to claim the land
Not established on the evidence
Costs of the suit
The Applicant failed to prove his claim
Costs
Dismissed with costs to the 1st, 2nd and 3rd Respondents
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.
In conclusion, I find no merit in the Applicant’s suit against the Respondents. The Originating Summons dated 15th May 2023 is dismissed with costs to the 1st, 2nd and 3rd Respondents.
I am of the view that, in the circumstances of this case, it was not until Oloo Moi was presumed dead and a Grant of Letters of Administration intestate in respect of his estate was issued to the 2nd and 3rd Respondents in 2021 that time could start running for the purposes of adverse possession of the suit property
The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession.
The Deputy Registrar shall return the original court file for Maseno Senior Principal Magistrate’s Court Succession Cause No. 26 of 2017, which was produced as an exhibit in this matter to that court.
Issues in the judgment
#The 1st Respondent's replying affidavit is variously dated 18th May 2023 in the narrative and 18th May 2025 in his testimony
The suit property is described as measuring 2 hectares (approximately 5 acres), while the Applicant claims a 2-acre portion
DW6's witness statement is referred to with conflicting pronouns
The 4th Respondent is referenced in the proceedings and at delivery but is never named in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Venah v Ogony & 3 others (Environment and Land Case 19 of 2023) [2026] KEELC 3078 (KLR)", Case Analysis (2026). ELC E019 OF 2023 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3078/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.