“Entry into land as a result of a contract or a sale agreement that is not completed especially by no fault of the purchaser can be deemed as adverse … the sale agreement was not completed but the respondents had moved in and occupied the land for thirty years and erected structures.” – Mativo, Gachoka & Okello JJ.A, in Okul & another v Ondieki & 3 others, Civil Appeal No. E041 of 2021 [2026] KECA 882 (KLR)
Introduction
On 8th May 2026, the Court of Appeal at Nakuru (Mativo, Gachoka & Okello JJ.A) dismissed an appeal against an Environment and Land Court decision in Okul & another v Ondieki & 3 others, Civil Appeal No. E041 of 2021. The decision crystallises a doctrine of considerable practical importance: where a purchaser takes possession of land under a sale agreement and that agreement is never formally completed through no fault of the purchaser, the resulting occupation can constitute adverse possession and, after twelve years, ripen into title capable of extinguishing the registered owner’s rights entirely.
The facts of the case span four decades. In October 1985, the late Barrack Deya Okul agreed to sell land Title No. Nakuru Municipality Block 1 (Langa Langa)/744 for Kshs 100,000. Full payment was made, possession was surrendered, and the purchaser’s family erected structures and collected rent. However, formal transfer never occurred. By the time litigation commenced in 2019, the purchaser had been dead for years, yet his estate administered by the respondents had occupied the land for well over thirty years. The appellants, as administrators of the vendor’s estate, sought to have the property treated as forming part of that estate.
The Central Holding: The Incomplete Contract as a Vehicle for Adverse Possession.
The key highlight of the judgment is the Court’s unequivocal affirmation that physical, long-term occupation following an uncompleted sale agreement is capable of being adverse to the registered owner’s title. The Court articulated the principle as follows:
“Entry into land as a result of a contract or a sale agreement that is not completed especially by no fault of the purchaser can be deemed as adverse. In the instant case, the sale agreement was not completed but the respondents had moved in and occupied the land for thirty years and erected structures.”
The Court reinforced this holding by reference to its earlier decision in Ouko & Another v Kageni, Civil Appeal No. 382 of 2019, where it had already established that physical, uninterrupted occupation, demonstrated through the construction of developments or the erection of fencing, constitutes sufficient possession to ground an adverse possession claim. Crucially, in Ouko, the adverse possession claim had succeeded on the basis of a 1977 sale agreement that was never completed. The present case therefore continues and fortifies that line of authority.
The Governing Legal Framework
Adverse possession in Kenya is primarily governed by section 13 of the Limitation of Actions Act (Cap 22), which extinguishes a landowner’s right of action after twelve years of adverse occupation, and by section 38 of the same Act, which provides the procedural mechanism for vesting title. For possession to be “adverse”, it must be open, uninterrupted, and hostile to the interests of the registered proprietor.
Why This Decision Matters
The decision has significant implications across several dimensions of Kenyan property law and practice.
- The “No-Fault” Standard. The Court expressly qualified the principle: it is the purchaser’s blamelessness for the non-completion that triggers the adverse character of the occupation. Where a purchaser fails to complete due to their own default, the analysis will differ.
- Acquiescence as a Decisive Factor. The Court of Appeal accepted the trial judge’s finding that the registered owner had acquiesced, confirming that acquiescence can deprive a registered owner of the argument that possession was not adverse.
- Eviction Notices Against Tenants Are Insufficient. The appellants argued that eviction notices issued to the respondents’ tenant by both the proprietor and the Nakuru Municipal Council broke the continuity of possession. The Court rejected this contention. The notices were directed at the tenant, not the possessors themselves, and the respondents’ occupation remained uninterrupted throughout.
Practical Takeaways
For practitioners and property owners, the decision distils into several practical imperatives.
- Audit Long-Term Occupiers Before Initiating Succession. Where property is earmarked as an estate asset, administrators should first investigate whether any third party is in possession and on what basis. Failing to do so risks both the success of the succession cause and personal exposure for the administrators.
- Document Vendor Performance in Sale Agreements. Delay in registration, even where the purchase price is partly unpaid, does not automatically protect a vendor. If possession has already been given, the adverse possession clock may have started regardless.
- Take Formal Steps to Assert Title. Registered owners who become aware that a purchaser is in possession under an incomplete sale agreement should take timely and proactive legally sufficient steps to interrupt possession not merely issue notices to the occupants’ tenants.
- Alert Chargees to Possession Risks. In this case the property had been charged to Thabiti Bank Ltd (in liquidation). Chargees who hold security over land should verify that the chargor’s title is not under adverse possession challenge, as extinguishment of the registered owner’s title would directly undermine the security.
Conclusion
The Court of Appeal’s decision in Okul v Ondieki confirms that a sale agreement, even one that stalls or collapses, can serve as the gateway to adverse possession where the purchaser takes and maintains possession in good faith. Thirty years of open occupation, the erection of rentable structures, and the vendor’s acquiescence proved decisive. For property owners, vendors, purchasers, estate administrators, and their advisers, the message is clear: the passage of time and the physical reality on the ground carry legal weight that paper arrangements alone cannot override.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact our Litigation Department vide litigation@wamaeallen.com
About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
Denis Mutugi specializes in Commercial Litigation and Alternative Dispute Resolution.
Denis graduated with a Bachelor of Laws, LLB (Hons) from The University of Nairobi in 2021 and was admitted to the Roll of Advocates of the High Court of Kenya in the year 2023.
Denis has amassed a considerable wealth of experience in conducting legal research on various complex legal matters touching on Commercial, Insurance, Employment and Insolvency law and bankruptcy.
