Ooro v Ondiek (Environment & Land Case 30 of 2021)  KEELC 235 (KLR) (26 January 2023) (Judgment)
Neutral citation:  KEELC 235 (KLR)
Republic of Kenya
Environment & Land Case 30 of 2021
A Ombwayo, J
January 26, 2023
Benard Ochieng Ooro
John Owino Ondiek
1.Benard Ochieng Ooro has hereinafter referred to as the plaintiff came to court by way of Originating Summons against John Owino Ondiek hereinafter referred to as the defendant by way of Originating Summons requesting the court to determine the following questions:-1.Whether the plaintiff/Applicant is entitled to the suit property vide adverse possession?2.Whether the suit property should be registered in the name of the plaintiff/applicant?3.Who should pay the plaintiff’s costs of this summons.
2.The questions are in respect of property No.Kisumu/Ojola/3719 which to plaintiff, claims to have acquired through adverse possession. In the supporting affidavit, plaintiff states that he has been occupying the property for more than 12 years since the day he was born. In 1992 without any disturbances and the property is registered in the names of the defendant. He has built on the land sired on the land and raised a family on the land and most importantly farmed on the land. He has invoked the principle of adverse possession. In the replying affidavit the defendant states that he bought the land in dispute from Sabastian Onyango Muga who was registered then. Sebastian Onyiyo Muga bought the land from Paulus Oora Muga the first registered owner. He claims that Sebastian had vacant possession of the land. The defendant states that the plaintiff is a son of Paulus Oora Muga who have their own land. He states that the plaintiff built his house on the land in the year 2017. The defendant admits that when he bought the land, the plaintiff had built his house. He however dispute to allegations that the plaintiff has been in possession for more than 12 years.
3.The plaintiff submits that:-
4.The plaintiff has not proved his case to the required standards for reasons that in the year 2016 the plaintiff placed a restriction on the suit parcel and one Sebastian Onyango Muga who sold the suit land to the defendant did object to the same and after a hearing by the County Lands Registrar the said caution was removed. Further, there is no evidence that the plaintiff has had peaceful and uninterrupted occupation of the suit land.
6.The law in respect to adverse possession is now settled. For one to succeed in a claim of adverse possession he must satisfy the following criteria explained in Titus Kigoro Munyi v Peter Mburu Kimani  eKLR while relying on the case of James Mwangi & Others v Mukinye Enterprises Ltd,High Court Civil Case No.3912 of 1986, it was held that a person relying on adverse possession must show clear possession, lack of consent on the part of the owner and uninterrupted occupation for more than 12 years. Hence, the five basic elements must be met to perfect the title of the adverse party
7.Plaintiff has not satisfied the elements enunciated above for a claim of adverse possession to accrue.
8.As provided under section 27 of the Civil Procedure Act, costs are granted at the discretion of the court, and the said discretion must be exercised judiciously. However it is also trite that cost follow the event
9.The court in Cecilia Karugu Ngayu v Barclays Bank of Kenya & Another  eKLR, while relying in the case of Republic v Rosemary Wairimu Munene, Ex parte Applicant -vs- Ihururu Dairy Farmers Co-operatives Society Ltd  eKLR held that the issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow event…. It is well recognized that the principle of costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.”
10.I have considered the evidence on record and submissions and do find that the plaintiff has lived on the land since he was born until an adult and today. Though part of the time he lived on the land he was a minor but if not disputed that he has lived on the land for the whole of his life. The first purchaser Sebastian Onyiyo Muga was requested on 16th August 1988 but did but attempt the evicts to plaintiff. The 2nd buyer the defendant, John Owino Ondiek bought the property, and was registered on 26th April 2018 but has not attempted to evict the plaintiff. I do find the plaintiff has been in possession of the suit property, though sometimes and a minor for more than 12 years.
11.The principle of adverse possession is well settled under Limitation of Actions Act. Section 7 of the said Act places a bar on actions to recover land after 12 years from the date on which the right accrued. Further section 13 of the same Act, provides that adverse possession is the exception to this limitation:
12.Finally, Section 38 of the Act provides that:
13.The principle of adverse possession was more elaborately set out in the case of Wambugu v Njuguna  KLR 172, where the Court held that:
14.This right to be adverse to land does not automatically accrue unless the person in whom this right has accrued takes action. Section 38 of the Act gives authority to the claimant to apply to Court for orders of adverse possession. Set the findings of the Court in Malindi App No. 56 of 2014 Mtana Lewa v Kahindi Ngala Mwagandi  eKLR where it held;
15.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 licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.
16.Further, in the case Mbira v Gachuhi  1 EALR 137: the court stated as follows;
17.Therefore, to determine whether the Applicant’s rights accrued the Court will seek to answer the followingi.How did the Applicant take possession of the suit property?ii.When did she take possession and occupation of the suit property?iii.What was the nature of her possession and occupation?iv.How long has the Applicant been in possession?
18.I do find that the plaintiff he has been occupying the property for more than 12 years since the day he was born 1992 without any disturbances and the property is registered in the names of the defendant. He has built on the land sired on the land and raised a family on the land and most importantly farmed on the land therefore, he has been in adverse possession of the suit property and I ultimately do find that he is entitled to the suit property by virtue of adverse possession. I do order that the suit property be registered in the plaintiffs name and the name of the defendant be cancelled from the register. Cost of the suit to the plaintiff
JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 26TH DAYS OF JANUARY 2023.A O OMBWAYOJUDGE