Khadoh v Onyiengo
The bottom line
#A Homa Bay court gave a man who farmed land openly for over 40 years legal ownership of 1.80 hectares, even though the registered owner never defended the case.
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 that the Respondent is the registered proprietor of Land Parcel No. Kasgunga/Kamreri/3313.
- 2.Whether the Applicant has proved the ingredients necessary to establish acquisition of title by adverse possession over the portion claimed.
- 3.Whether the Applicant has proved entitlement to the defined portion of the suit property measuring 1.80 hectares.
- 4.Who should bear the costs of the suit.
Key legal issues
#Registered ownership of the suit property
Established through an official search showing the Respondent as registered proprietor.
The Applicant produced a copy of an official search as PExh. 1 showing registration in the Respondent's name. The court found the identity of the property and the registered proprietorship established on that documentary evidence, which was uncontroverted since the Respondent did not participate.
Ingredients of adverse possession
Proved: possession was actual, open, notorious, exclusive, continuous and without permission for over 12 years.
The Applicant testified to over 40 years of occupation; PW2 and PW3 corroborated 40-50 years of open settlement and cultivation. Photographs showed plantations, houses, livestock and fencing consistent with open occupation. No evidence of lease, licence or permission existed, and the Respondent never raised any concern despite awareness.
Extent of the portion claimable
The Applicant proved entitlement to a defined 1.80 hectares to be excised from the suit parcel.
The Applicant specified the portion he occupies and cultivates, on which his homestead and farming stand. The uncontradicted testimony of PW1, PW2 and PW3 together with photographic evidence confirmed continuous and exclusive use of that specific extent, satisfying the requirement that the claim be over a defined portion.
Legal principles established
#- Adverse possession requires possession that is actual, open and notorious, without force, exclusive, and continuous and uninterrupted for twelve years.
- Possession must be neither by force nor stealth nor under licence, and must be adequate in continuity, publicity and extent.
- Even where a claim is undefended, the burden of proof under Sections 107, 108 and 109 of the Evidence Act remains on the applicant.
Court orders
#- 1.Declaration that the Applicant has acquired title by adverse possession to a portion measuring 1.80 hectares to be excised from Land Parcel No. Kasgunga/Kamreri/3313.
- 2.The County Surveyor, Homa Bay, to visit the parcel, survey and excise the 1.80-hectare portion occupied by the Applicant and generate the requisite RIM and mutation forms to facilitate creation of a new title.
- 3.The Respondent to execute all requisite transfer instruments, mutation forms and documents within thirty (30) days of completion of the survey; in default, the Deputy Registrar authorized to sign all such documents on the Respondent's behalf.
- 4.The applicant to have the costs of the Originating Summons.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Section 38 of the Limitation of Actions Act (Cap. 22), Order 37 Rule 7 of the Civil Procedure Rules, 2010
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.
A Declaration is hereby issued that the Applicant, Joseph Ochieng Khadoh, has acquired title by way of adverse possession to a portion measuring 1.80 hectares to be excised from Land Parcel No. Kasgunga/Kamreri/3313.
The County Surveyor, Homa Bay, is hereby ordered to visit Land Parcel No. Kasgunga/Kamreri/3313, survey and excise the portion measuring 1.80 hectares currently occupied by the Applicant, and generate the requisite RIM and mutation forms to facilitate the creation of a new title.
in default thereof, the Deputy Registrar of this Court be and is hereby authorized to sign all survey documents, mutation forms, and transfer instruments on behalf of the Respondent to effect registration in the Applicant's favour.
Title by adverse possession strikes at the root of the registered owner's indefeasible title, not to reward the squatter for his trespass, but to penalize the indolent owner who sleeps on his rights for statutory periods while others transform and cultivate the soil.
Issues in the judgment
#Occupation duration inconsistent: pleadings say over 30 years, PW1 and PW3 say over 40 years, PW2 says over 50 years.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khadoh v Onyiengo", Case Analysis (2026). Land Originating Summons E053 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5864/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.