Ochinji v Odero (Sued as the Administratrix of the Estate of Perez WJ Odero –Deceased) (Enviromental and Land Originating Summons E015 of 2025) [2026] KEELC 5367 (KLR)

BRIEF FACTS 3. The Plaintiff brought the Originating Summons dated 10 th April 2025. He sought the determination of the following questions:I. Whether the Defendant’s right to recover land parcel number measuring SUNA EAST/WASWETA approximately three (3) I/2690 acres is barred under the Limitation of Actions Act and the Defendant’s title thereto extinguished on account of adverse possession by the Plaintiff. II. Whether the Plaintiff is entitled to be registered as proprietor of the entire parcel of land known as SUNA EAST/WASWETA I/2690 by virtue of adverse possession. III. Whether the Estate of Perez W. J. Odero (Deceased), though registered as proprietor, holds title to the suit land in trust for the Plaintiff who has acquired entitlement thereto by adverse possession. IV.Whether the Defendant should be ordered to transfer the title of the suit land to the Plaintiff and in default the Deputy Registrar of this Court be authorized to execute all requisite documents. V. Whether the Defendant should be restrained from interfering with the Plaintiff’s quiet possession and occupation of the suit land. JUDGMENT ELC NO. 015 OF 2025 2

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VI. Whether the Defendant should bear the costs of the suit. VII. Whether any other relief should be granted. 4. The Originating Summons was grounded on the facts that the Plaintiff was born, “bred” and raised on the suit land. The same originally formed part of his family land. The late Perez W.J. Odero, in whose name the land became registered in 1987, never took possession thereof. 5. The Plaintiff further contended that he and his family have been in open, peaceful, continuous and uninterrupted possession of the entire suit land for over thirty years, and the occupation has been adverse to the title of the registered proprietor. 6. The Summons was supported by the Affidavit sworn by the Plaintiff on 10th April 2025. He deponed that he was the son of the original owner of the land from which the suit property was derived. The suit land was sold to the late Perez W.J. Odero by his step-brother, Gordon Odongo Ochinji, during his minority/ when he was young. 7. He deponed further that neither the deceased proprietor nor his Estate ever took possession of the suit property. He has remained in occupation thereof throughout. He added that JUDGMENT ELC NO. 015 OF 2025 3

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he has settled his family on the land and has openly utilized it for over thirty years. 8. He deponed further that no demand or litigation had ever been instituted against him regarding the suit land. Further, by reason of his long occupation he had acquired title thereto by way of adverse possession. EVIDENCE 9. The Plaintiff testified as PW1. He adopted as his evidence his Supporting Affidavit sworn on 10 th April 2025. He stated that he resides at Wasweta. He was the Plaintiff herein. He relied on his Affidavit as his evidence in Chief. 10. In support of his case, PW1 produced the following documents in evidence from his List of Documents dated 10 th April 2025, namely:a. Certified copy of the Extract of Register for Land Parcel No. SUNA EAST/WASWETA I/2690 – P. Exhibit 1. b. Chief’s Letter dated 8th March 2023 – P. Exhibit 2. c. Bundle of Photographs – P. Exhibit 3. 11. He abandoned the Demand Letter which was one of the copies in the List of Documents. PW1 prayed for the prayers he sought in the Originating Summons. He thereafter closed his case. JUDGMENT ELC NO. 015 OF 2025 4

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12. Despite service of Summons to Enter Appearance, the Defendant neither entered appearance nor filed any response to the suit. Consequently, no evidence was tendered on behalf of the Defendant. Upon close of his case, he filed written submissions and the Court reserved the matter for judgment. ISSUE, ANALYSIS AND DETERMINATION 13. This Court has considered the Originating Summons, the Supporting Affidavit, the oral evidence tendered by PW1, the exhibits produced, the law and the submissions filed on behalf of the Plaintiff. The issue for determination is whether the Plaintiff has proved his claim for adverse possession on a balance of probabilities and whether he is entitled to the reliefs sought. 14. The law on adverse possession is governed by Sections 7, 13, 17 and 38 of the Limitation of Actions Act. The said provisions are considered as below. 15. Section 7 of the Act provides:“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 16. Section 13 of the Act provides that: (1)“ A right of action to recover land does not accrue unless the land is in the possession of some JUDGMENT ELC NO. 015 OF 2025 5

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person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land.” 17. Under Section 38(1) of the Act the law is that, “Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as a proprietor of the land.” JUDGMENT ELC NO. 015 OF 2025 6

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18. These provisions have been considered in a number of decisions. In Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, the Court of Appeal stated: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 19. In Muiruri v Kuria (Environment and Land Originating Summons No. 41 of 2023) [2024] KEELC 4124 (KLR) (9 May 2024), the Court restated the principles governing adverse possession by citing the decision in Kasuve v Mwaani Investments Ltd & 4 Others (No. 2) [2004] 1 KLR 184 as follows: “...and in order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of twelve (12) years either after dispossession of the owner or by the discontinuance of possession by JUDGMENT ELC NO. 015 OF 2025 7

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the owner on his own volition; Wanja v Sakwa (No. 2) [1984] KLR 284. A title by adverse possession can be acquired under the Limitation of Actions Act for part of the land...” 20. The Court further draws guidance from Muiruri v Kuria (Environment and Land Originating Summons No. 41 of 2023) [2024] KEELC 4124 (KLR) (9 May 2024), wherein the Court cited the decision of the Court of Appeal in Chevron (K) Limited v Harrison Charo Wa Shutu [2016] eKLR and stated: “At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and Section 38 of the Limitation of Actions Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land. Therefore, the critical period for the determination whether possession was adverse is twelve (12) years and the burden is on the person claiming entitlement to land by adverse possession to prove not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land, and that the adverse possessor has done acts on the land which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he JUDGMENT ELC NO. 015 OF 2025 8

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intended to use it. See Littledale v Liverpool College (1900) 1 Ch. 19, 21.” 21. In the instant matter, the Plaintiff produced a certified copy of the register as P. Exhibit 1. The document shows that land parcel number SUNA EAST/WASWETA I/2690 became registered in the name of Perez W.J. Odero on 14 th December 1987. The Plaintiff testified that despite that registration, the deceased proprietor never took possession of the suit property. He stated that he was born, bred and raised on the land and has remained in occupation thereof throughout. 22. The Chief’s Letter produced as P. Exhibit 2 supports the Plaintiff’s assertion that he resides on the suit land. Further, the photographs produced as P. Exhibit 3 depict occupation and developments on the property. The Plaintiff’s evidence remained unchallenged. The Defendant, despite being duly served, neither entered appearance nor filed any response to controvert the Plaintiff’s claim. While a claim for adverse possession cannot succeed merely because it is undefended, the Court must nevertheless examine whether the evidence tendered is sufficient enough to satisfy the legal requirements on adverse possession. 23. Having carefully considered he evidence before Court, I am satisfied that the Plaintiff has proved that he had actual, open, peaceful, continuous and uninterrupted occupation of JUDGMENT ELC NO. 015 OF 2025 9

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the entire suit property. This satisfies one of the elements of adverse possession, but that of itself is not enough. 24. However, from the evidence adduced, it further establishes that such occupation has endured for a period exceeding thirty-seven (37) years since registration of the deceased proprietor in 1987. There is no evidence that the registered proprietor or his estate ever entered into possession of the suit property or interrupted the Plaintiff’s occupation. 25. Consequently, by operation of the provisions of Sections 7 and 17 of the Limitation of Actions Act, the title of the registered proprietor became extinguished after the expiry of twelve years while the Plaintiff’s rights crystalized into ownership through adverse possession. The Court therefore finds that the Plaintiff has proved his claim on a balance of probabilities. 26. The upshot is that the Plaintiff has proved his case on a balance of probabilities. This Court therefore enters judgment for the Plaintiff against the Defendant as follows:a) A declaration be and is hereby issued that the Defendant’s right and the Estate of Perez W.J. Odero’s right to recover land parcel number SUNA EAST/WASWETA I/2690 are statute barred under the Limitation of Actions Act. JUDGMENT ELC NO. 015 OF 2025 10

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b) A declaration be and is hereby issued that the Plaintiff, ERICK OTIENO OCHINJI, has acquired title to land parcel number SUNA EAST/WASWETA I/2690 by way of adverse possession. c) The Defendant, as Administratrix of the Estate of Perez W.J. Odero (Deceased), shall execute all documents necessary to transfer land parcel number SUNA EAST/WASWETA I/2690 to the Plaintiff within thirty (30) days from the date hereof. d) In default of compliance with Order (c) above, the Deputy Registrar of this Court shall execute all necessary transfer documents on behalf of the Defendant. e) A Permanent Injunction be and is hereby issued restraining the Defendant, her agents, servants, employees or any person claiming through the Estate of Perez W.J. Odero (Deceased) from interfering with the Plaintiff’s quiet possession, occupation and enjoyment of land parcel number SUNA EAST/WASWETA I/2690. f) The costs of this Originating Summons shall be borne by the Defendant. 27. Orders accordingly. Judgment dated, signed and delivered virtually via the Teams Platform this 12th day of August 2026. HON. DR. IUR NYAGAKA JUDGMENT ELC NO. 015 OF 2025 11

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JUDGE From 11:18 AM in the presence of, Mr. Kisera Advocate for the Plaintiff No Appearance for Respondent JUDGMENT ELC NO. 015 OF 2025 12

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