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Case Brief · caselaw.co.ke
ELCDismissedELC Suit No. E021 of 2023 (O.S)

Risper Juma Adem v Plister Adundo (Sued as the administrator of the estate of Joshua Adundo Ondu, Deceased)

Environment and Land Court of Kenya
28 September 2026
3,223 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu dismissed a widow's claim to own land through adverse possession because she could not prove she had dispossessed the registered owner.

What this practically means

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Executive summary

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The Plaintiff, widow of Domnic Adem, brought an Originating Summons dated 25th May 2023 seeking declarations that she had acquired Title No. Kisumu/Marera/2290 by adverse possession, that she was entitled to be registered as its proprietor, and an order compelling transfer. The suit property, 0.49 hectares, had been excised from the original parcel Kisumu/Marera/1965 following a successful objection to adjudication by Robert Ondu, and was registered in 1974 in the name of his son, the deceased Joshua Adundo Ondu, whose estate the Defendant administers. The Plaintiff claimed occupation and use since her 1970 marriage, interrupted on 3rd February 2023 when the deceased's son fenced the parcel and built a house. The Defendant maintained the deceased and his family had always used the land, that the Plaintiff never occupied it, and that the suit was a malicious challenge to the adjudication outcome. The court framed three issues: proof of adverse possession, entitlement to reliefs, and costs. Applying Kimani Ruchine v Swift, Wambugu v Njuguna, Mbira v Gachuhi and related authorities, the court held that the Plaintiff had to prove dispossession of the deceased or discontinuance of his possession for at least 12 years. Her own cross-examination showed she never recognised the suit property as an independent parcel, treating it as part of the original parcel; the deceased himself never possessed it, so neither dispossession nor discontinuance was possible. Her cultivation evidence was inconclusive, her witnesses added no weight, and the surveyor found boundaries intact with no encroachment. The claim was found unproved and the Originating Summons was dismissed, with each party bearing its own costs.

Questions the Court framed

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

  1. 1.whether the Plaintiff has proved her adverse possession claim in respect of the suit property
  2. 2.whether the Plaintiff is entitled to the reliefs sought in the Originating Summons
  3. 3.who is liable for the costs of the suit

Key legal issues

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01

Whether the Plaintiff proved adverse possession of Kisumu/Marera/2290

Holding

Claim not proved; the Plaintiff treated the suit property as part of the original parcel and never recognised it as an independent parcel until February 2023

Reasoning

The Plaintiff admitted in cross-examination that the land she occupied was parcel 1965 and that she wanted parcel 2290 to remain part of it. Having never recognised the suit property as a distinct parcel, she could not have dispossessed the deceased, who himself never possessed it. Dispossession and discontinuance are prerequisites under Wambugu v Njuguna, and neither was established for the statutory 12-year period.

p. 10
02

Whether the Plaintiff's occupation was exclusive, open and continuous

Holding

Not established; it was unclear whether crops and trees were planted on the original parcel or the suit property

Reasoning

The Plaintiff does not live on the suit property but on the adjacent original parcel. She treated both parcels as one, so it was unclear whether her cultivation was done with knowledge that it was on the suit property. No evidence showed when the permanent trees were planted. Her witnesses added no weight: PW2 did not know the parcel number, PW3 did not know how or when the deceased was registered, and the surveyor PW5 found boundaries intact with no encroachment.

p. 11
03

Whether the suit was a collateral challenge to adjudication proceedings

Holding

The evidence lent credence to the Defendant's contention that the Plaintiff was challenging the adjudication committee's decision through this suit

Reasoning

PW2's testimony that the suit property was taken away from the Plaintiff unfairly supported the Defendant's contention that the real grievance was the 1968 objection proceedings that excised the land to the deceased. The court treated this as undermining the Plaintiff's adverse possession case rather than as a distinct ground for striking out.

p. 12

Legal principles established

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  • A claimant in adverse possession must prove dispossession of the registered owner or discontinuance of the owner's possession for the statutory period
  • A registered owner who never possessed the land cannot be dispossessed, nor can he discontinue possession
  • The legal burden of proof rests on the party desiring the court to take action and remains constant throughout the trial

Court orders

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  1. 1.The Plaintiff's Originating Summons dated 25th May 2023 is dismissed
  2. 2.Each party shall bear its own costs of the suit

The bench

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

majority

Wrote the judgment

majority
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution (not expressly cited in the judgment; original jurisdiction over land)

Relief refused

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Declaration that the Plaintiff acquired the suit property by adverse possession

Adverse possession claim not proved; no dispossession or discontinuance of the deceased's possession

p. 15

Declaration that the Plaintiff is entitled to be registered as proprietor of the suit property

Follows from failure of the adverse possession claim

Order that the Defendant transfer the property to the Plaintiff, failing which transfer by the Deputy Registrar

Follows from failure of the adverse possession claim

Costs

Each party shall bear its own costs of the 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.

In conclusion, the Plaintiff’s Originating Summons dated 25th May 2023 is dismissed. Each party shall bear its own costs of the suit.
p. 15Final orders - dismissal and costs
The Plaintiff could only dispossess him of the property if he possessed it in the first place. The same applies to the discontinuance of possession.
p. 10Dispossession requires prior possession by the registered owner
For the reasons given above, I find the Plaintiff’s adverse possession claim over the suit property not proved. The Plaintiff is therefore not entitled to the reliefs sought in the Originating Summons.
p. 15Finding on the adverse possession claim
a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period, must prove non permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutorily prescribed period without interruption
p. 7Ingredients of adverse possession (Mbira v Gachuhi)

Issues in the judgment

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minor

Delivery date incomplete/inserted: 'on this day of September 2026' with '28th' added

minor

Judgment states it was written and signed at Mombasa though the suit is at the ELC Kisumu

minor

Defendant's attorney named as Philip Otiende Adundo while PW5 is Patrick Opiyo Adero; witness numbering inconsistent

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, "Risper Juma Adem v Plister Adundo (Sued as the administrator of the estate of Joshua Adundo Ondu, Deceased)", Case Analysis (2026). ELC Suit No. E021 of 2023 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5915/eng@2026-09-28

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