Oruko & 2 Others V Nyagol & Another (Environment And Land Appeal E023 Of 2024) [2026] 

Introduction

Kenya’s most recognised way of owning property is proof of documentation( certificate of title). Once an individual purchases a property, they do not rest until the Certificate of Title is produced in their name. During their lifetime, they’re guaranteed of free utilization of the property and its transmission to their beneficiaries upon death. However, that is not always the case, and courts have had to determine numerous disputes relating to land ownership without title: Adverse possession. The ELC court was recently tasked with determining this question between a deceased land seller’s family and a deceased land buyer and registered owner’s beneficiaries.

Background

Up until 1960s, Enoka had owned and lived on the suit land which he later sold to Abadha. Abadha had the land registered in his name until he died in 1994. Upon his death, the land was transmitted to the administrators of his estate for further transmission to his beneficiaries. Unbeknownst to the administrators, Enoka’s grandson and his wife had been occupying a portion of the land, and they called it home. Oruko and 2 others (Administrators of Abadha’s estate) moved to court to have Nyagol(Enoka’s grandson) and his wife evicted from the land.

Nyagol claimed that they had lived on the land and constructed several semi permanent rental houses from which they collected rent. The rental houses were constructed in 1987 by his mother. Nyagol did not dispute that the land was legally registered to Abadha but claimed adverse possession of the portion they occupied.

Issues for determination

1. Whether Nyagol had a valid adverse possession claim over the land
2. Whether Oruko and the other beneficiaries can reclaim the land from Nyagol.

Analysis and determination

The court addressed both issues together. It found that there were 2 major facts that were undisputed; That the land was legally registered to Abadha, and that Nyagol had enjoyed open and uninterrupted occupancy on the land for over 25 years.

The court held that Nyagol and his wife had a valid claim over the portion of the suit land they occupied since they had satisfied all ingredients of adverse possession;

• Open and uninterrupted occupation of land;
• Exclusive possession and control for a period of at least 12 years without the consent of the registered owner; and
• They demonstrated a clear intention to hold the land as its owners against the paper owners (Oruko and his co-administrators).

Quoting section 7 of the Limitation of Actions Act, it was also held that Oruko and the other beneficiaries could not recover the land since the statutory time for recovery (12 years) was long expired.

Conclusion

The short answer to our question is Yes, a seller can claim adverse possession of an already sold land provided that the ingredients are met. Even after a successful purchase and registration of land in their name, a new land owner ought to apply additional precaution to ensure they are not dispossessed of their property by the previous owner or any third party.

Key takeaways

1. Registration of title is not an absolute safeguard from potential land seizure by 3^rd parties.
2. Registered land owners can protect their freehold interest in land in the following ways;
3. Ensuring they get vacant possession after purchase, by having the seller completely vacate the land,
4. Always having a written contract whenever they allow another person to occupy the land, or
5. If no written agreement, reduce the occupation or utilization of the land to less than 12 years, and
6. Where the intended period of use is longer than 12 years, break it into shorter periods.