Khadoh v Onyiengo

3. b. That the Honourable Court be pleased to order that the portion measuring 1.80 hectares out of Land Parcel Number Kasgunga/Kamreri/3313 currently occupied and cultivated by the Applicant be excised and registered in the name of the Applicant. c. That the costs of this Originating Summons be provided for in favour of the Applicant. The Originating Summons is premised on ve grounds appearing on its face and is supported by the adavit sworn by the Applicant, Joseph Ochieng Khadoh, on 24th February 2025. The Applicant's case 4. The Applicant's case, as set out in his adavit, is that he resides within Mbita Sub-County. He states that he has been in continuous and uninterrupted occupation of part of the suit parcel of land; that he gained entry into the suit parcel without the consent of the owner who is the Respondent herein; and that the owner has never raised any concern regarding his occupation notwithstanding having been aware of the circumstances surrounding his occupation for over 30 years. 5. The Applicant further depones that he has no other place of abode other than the suit parcel of land; that he has cultivated the land for over 30 years; that his life and that of his family depend entirely upon the suit parcel; and that the land is registered in the name of the Respondent. 6. The Applicant therefore contends that, by reason of his long, open, continuous and uninterrupted occupation of the specic portion of the suit property measuring 1.80 hectares without the permission of the registered owner, he has acquired title thereto by adverse possession. Proceedings before the Court 7. The record shows that the Respondent was served with the Applicant's pleadings and was notied of the mention and hearing dates. The Respondent nevertheless did not enter appearance or participate in the proceedings. The matter consequently proceeded by way of formal proof. The hearing took place on 21st September 2026. 8. The Applicant, Joseph Ochieng Khadoh, testied as PW1. He told the Court that he knew the Respondent and that the Respondent was previously a resident of their village before migrating to Kisii. He testied that he knew Land Parcel No. Kasgunga/Kamreri/3313 and that it was the land upon which he lived. He stated that he had been on the land for over 40 years and that the land was his source of income. 9. PW1 adopted his witness statement dated 24th February 2025 and his list of documents dated 18th August 2026. He produced a copy of the search as PExh. 1, photographs as PExh. 2, and a Certicate of Electronic Evidence as PExh. 3. 10. Hans Khadoli testied as PW2. He adopted his statement dated 24th February 2025. His evidence was that: “ I know the Plainti as my cousin though not very familiar to the Defendant as we have never interacted. The Plainti is almost my age mate and for the longest time over 50 years he has been staying on land parcel number Kasgunga/Kamreri/3313 till to date and that is where he has built his home and settled with his family." https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5864/eng@2026-09-25 2

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11. Lucas Matinde testied as PW3. He adopted his statement dated 21st February 2025. In his statement he stated: “ I know the Plainti as he is my cousin. However I do not know the Defendant since I have never interacted with him. I am only told that he lives in Kisii. I know of my own knowledge that the Plainti has been in active use of the land parcel number Kasgunga/Kamreri/3313 for a period of over 40 years. His house is built on the said property and that is where he is settled with his family members. He is the only person I have seen till the said property and at no point have I ever heard any complain from anyone with regards to that land." 12. The Applicant thereafter closed his case and was granted leave to le submissions. His written submissions dated 21st September 2026 are on record and have been considered. Issues for determination 13. From the pleadings, evidence and submissions, the following issues arise for determination: 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 dened portion of the suit property measuring 1.80 hectares. 4. Who should bear the costs of the suit. Analysis and determination Whether the Applicant has established registered ownership and the ingredients of adverse possession 14. Ownership by adverse possession has been given statutory underpinning in Sections 7, 13, 17 and 38 of the Limitation of Actions Act (Cap 22 of the Laws of Kenya). Section 7 of the Act states that: “ 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 rst accrued to some person through whom he claims, to that person." 15. Section 13, on the other hand, stipulates that a right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run. Section 17 provides for the extinguishment of title upon the expiration of the statutory period, while Section 38 sets out the procedure for applying to the High Court (now the Environment and Land Court) for registration. 16. More recently, the Court of Appeal in Andafu v Akhulunya [2025] KECA 714 (KLR) distilled the requirements of adverse possession as follows: “ The principles distilled from these cases are that in order to establish a claim of adverse possession, the possession must be: Adverse to the interests of the owner... Actual... Open https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5864/eng@2026-09-25 3

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and notorious... Without force... Exclusive... Continuous and uninterrupted for the period of twelve years..." 17. In John & 8 Others v Gikunda [2024] KECA 1221 (KLR), the Court of Appeal reiterated that the doctrine contemplates both dispossession and discontinuance of possession. Furthermore, in Mtana Lewa v Kahindi Ngala Mwagandi [2015] KECA 532 (KLR), the Court emphasized that possession must be neither by force nor stealth nor under license of the owner, and must be adequate in continuity, publicity, and extent. 18. The Applicant produced a copy of an ocial search as PExh. 1, showing that the suit property is registered in the name of the Respondent. I therefore nd, on the evidence before me, that the Applicant has established the identity of the suit property and that the Respondent is the registered proprietor thereof. Whether the Applicant's possession was actual, open, notorious, exclusive, and continuous 19. The Applicant testied that he has lived on the suit property for over 40 years. His evidence was corroborated by PW2, who stated that the Applicant had lived on the property for over 50 years, built his home thereon, and settled with his family. PW3 similarly conrmed active use for over 40 years. 20. The photographs produced as PExh. 2 depict plantations, two houses, livestock, and a temporary fence, which are consistent with open physical acts of occupation capable of coming to the knowledge of the registered proprietor. There is no evidence suggesting the Applicant entered or remained upon the land pursuant to any lease, license, or permission. Although the Respondent did not appear, the burden of proof under Sections 107, 108, and 109 of the Evidence Act remains on the Applicant, who discharged it eectively through oral, documentary, and photographic evidence. Extent of the Claim 21. The Applicant's evidence is that he occupies and cultivates a portion of Land Parcel No. Kasgunga/ Kamreri/3313 measuring 1.80 hectares, where he has established his homestead and farming activities. The uncontradicted oral testimony of PW1, PW2, and PW3, alongside the photographic evidence, conrms continuous and exclusive use of this specic extent of land. I nd that the Applicant has successfully proved entitlement to a portion measuring 1.80 hectares to be excised from Land Parcel No. Kasgunga/Kamreri/3313. Disposition 22. Consequently, judgment is hereby entered in favour of the Applicant against the Respondent in the following terms: 1. 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. 2. 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. 3. The respondent is hereby ordered to execute all requisite transfer instruments, mutation forms, and documents necessary to eect the subdivision, transfer, and registration of the resulting 1.80-hectare parcel in the Applicant's name within thirty (30) days of the completion of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5864/eng@2026-09-25 4

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the survey; and that 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 eect registration in the Applicant's favour. 4. The applicant shall have the costs of the Originating Summons. DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 25TH DAY OF SEPTEMBER 2026 In the presence of; 1. Ms. Odera For The Plainti/applicant 2. In The Absence Of The Respondent. 3. Court Assistant; Mercy Awino HON. JUSTICE J.W. WANYONYI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5864/eng@2026-09-25 5

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