Nyongesa & 2 others v Otieno (Enviromental and Land Originating Summons E038 of 2025) [2026] KEELC 4891 (KLR)

The Court held that adverse possession accrues against the registered proprietor whose title is alleged to be extinguished under Sections 7, 13 and 38 of the Limitation of Actions Act. Subsequent transfer does not by itself defeat proceedings already instituted. Whether the transfer defeated the accrued claim requires evidence on occupation, when time began to run and the legal effect of the transfer. Order 1 Rule 9 provides no suit is defeated by misjoinder or non-joinder, and the defect is curable by amendment and joinder.

Applying DT Dobie v Muchina, the Court stressed that striking out is discretionary and reserved for plain and obvious cases. The claim for a declaration of adverse possession requires evidence on the nature, extent and duration of occupation and whether the statutory period matured before the transfer. The mere change of ownership after accrual of the claim does not render proceedings vexatious, and no misuse of the judicial process was demonstrated.

Under Order 8 Rule 3(1) the Court has an unfettered discretion to allow amendments at any stage where necessary to determine the real questions in controversy. Following Central Kenya Ltd v Trust Bank Ltd, amendments should be freely allowed absent irremediable prejudice. The amendment merely reflects the current status of title; the factual foundation - occupation for the statutory period - remains unchanged, and the application predates the hearing.

Order 1 Rule 10(2) empowers the Court at any stage to add a person whose presence is necessary to settle all questions in the suit. The Applicants seek a declaration capable of affecting the current proprietor's title; it would offend natural justice to determine such a claim in his absence. Joinder also avoids parallel proceedings and ensures any decree binds all persons with a direct interest in the land.