Tombo v Chunga & 4 others (Environment and Land Case E006 of 2023) [2026] KEELC 4126 (KLR)
The bottom line
#A Siaya court ruled that a man who occupied 10 acres he bought in 1982 now owns the land through adverse possession, even after the seller died.
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 has proved his claim for adverse possession on the suit property
- 2.Whether constructive trust as an overriding interest has been established
- 3.Whether the Defendants have proved the counterclaim to the required standard to warrant the grant of the orders sought
- 4.Who bears the costs of the suit and counterclaim?
Key legal issues
#Whether adverse possession was established
Yes - the plaintiff occupied the defined portion openly, peacefully and without interruption from 1982, exceeding the statutory 12-year period, and the claim crystallised before the succession proceedings
The court found the plaintiff entered with permission under the 1982 sale but possession became adverse once the sale was complete and the owner made no move to recover the land. Occupation for over 22 years during the deceased's lifetime, unchallenged until after the 2018 confirmation of grant, met the statutory threshold. Failure to object in the succession does not displace the claim.
Whether constructive trust was established
Not determined - unnecessary given the adverse possession finding
The plaintiff framed constructive trust as an overriding interest under section 28 of the Land Registration Act, relying on M'Iinanga on customary trust. Since the adverse possession claim succeeded and the plaintiff was declared entitled to the portion, the court declined to reach the merits of the trust claim.
Whether the counterclaim for injunction and eviction was proved
No - the counterclaim failed because the plaintiff proved adverse possession of the occupied portion
The defendants' counterclaim described the plaintiff as a trespasser and sought a permanent injunction, mandatory eviction orders enforceable by the OCS, and general damages. With adverse possession established, the plaintiff could not be a trespasser; the defendants also conceded they had never sued to evict him.
Admissibility of the survey report photographs/satellite images
Photographs inadmissible for want of a certificate under sections 78A and 106B(4) Evidence Act, but the claim survived on the surveyor's findings and the defendants' non-denial of occupation
Applying Rapando v Ojwang, photographs are electronic records requiring a certificate identifying who took them. None was produced, so the photos were expunged. However, the drawn figure 1(b) of the survey report identified and defined the occupied portion, and the defendants did not deny the occupation itself.
Legal principles established
#- A claim of adverse possession based on a sale agreement is properly maintainable, and time runs from the date of payment of the purchase price and taking possession
- The running of time under adverse possession is cumulative against both the original owner and successors in title, including a deceased owner's estate
- Land adversely possessed must be definitely identified, defined or at least an identifiable portion with a clear boundary
- Photographs as electronic records require a certificate under sections 78A and 106B(4) of the Evidence Act to be admissible
Court orders
#- 1.Counterclaim dismissed with no orders as to costs
- 2.Declaration that the plaintiff is entitled by way of adverse possession of over 12 years to the portion measuring approximately 4 Hectares/10 acres in land parcel No. North Sakwa/Maranda/40
- 3.Order directing the portion identified in Figure 1(b) of the Surveyors report dated 12th May 2024, re-authenticated by the District Land Surveyor in the presence of all parties, be hived off from North Sakwa/Maranda/40 within 90 days
- 4.Land Registrar in charge North Sakwa/Maranda area to register the plaintiff Meshack Ouma Tombo as absolute proprietor of the hived portion without further reference to the Defendants
- 5.Costs of the survey/subdivision order to be borne by the Plaintiff
- 6.Each party to bear their own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act, Section 13 (adverse possession claim over registered land)
Relief refused
#General damages for interference with the defined portion
No proposals or basis for quantification were placed before the court
Declaration of beneficial interest under constructive trust
Having found the plaintiff entitled by adverse possession, the court found it unnecessary to determine the constructive trust claim
Costs
Each party shall bear their own costs of the suit; counterclaim dismissed with no orders as to costs; costs of the survey/subdivision to be borne by the Plaintiff.
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.
That the plaintifi herein be and is hereby declared to be entitled by way of adverse possession of over 12 years of the portion measuring approximately 4 Hectares/10 acres in land parcel No. North Sakwa/Maranda/40.
That the counterclaim is dismissed with no orders as to costs.
An order to issue directing the above portion as identified in Figure 1(b) of the Surveyors report dated 12th May 2024 and as shall be re-authenticated by the District Land Surveyor in charge of North Sakwa/Maranda area in the presence of all the parties be hived ofi from the parcel No. North Sakwa/Maranda/40 within 90 days of the date of this judgement.
That upon order No. 3 above the Land Registrar in charge North Sakwa/Maranda area to register the plaintifi Meshack Ouma Tombo as the absolute proprietor of the hived portion without further reference to the Defendants
That each party shall bear their own costs of this suit.
The process springs into action essentially by default or in action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner.
the death of a registered proprietor does not discontinue the possession and, the time does not stop running. The successors hold the land in trust for the adverse possessor
Issues in the judgment
#The name of the second defendant does not appear in the judgment; only Philip Chunga (1st defendant) is identified
Inconsistent dates for the sale declaration - the claim describes it as dated 9/6/1982 in one place and 9/8/1982 in another; defendants' submissions also alternate between 9th August and 9th June 1982
The judgment refers to the plaintiff as 'the appellant' when discussing the occupation period, though this is a first-instance suit
PW2 testified the occupied portion was '4 ha' per the declaration of sale but the court records him as corroborating '4acres'; the declaration of sale refers to 10 acres while the suit property is recorded as 28.5 Ha
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tombo v Chunga & 4 others (Environment and Land Case E006 of 2023) [2026] KEELC 4126 (KLR)", Case Analysis (2026). Originating Summons (ELC, Siaya) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4126/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.