People may occupy different parts of one property for years while the register still records undivided shares. A home, cultivated corner or sale to a third party does not necessarily mean that a legally separate portion already exists.
Ajwang v Polo concerned that difference. The plaintiffs sought the other co-owner's half through adverse possession. The court instead directed a formal equal partition, with practical attention to homes and access but no promise that existing occupation would determine the division.
Case identity
- Case: Ajwang & another v Polo.
- Court: Environment and Land Court, Environment and Land Case Civil Suit 291 of 2015.
- Decision date: 18 December 2025.
- Citation: [2025] KEELC 18507 (KLR).
- Primary source: Read the judgment.
Each family described a different entitlement
The plaintiffs, the wife and son of a deceased co-owner, said they had occupied the land for decades and that the defendant had not used it. They claimed the other half of the property through adverse possession.
The defendant said his father had owned the land and given the deceased a half-share. He disputed the plaintiffs' account of exclusive occupation, described attempts to arrange succession and subdivision, and said they had refused to cooperate with partition.
His counterclaim sought several remedies, including restraint, eviction, demolition of structures and documents enabling subdivision. The plaintiffs denied those allegations and challenged the counterclaim (paragraphs 1–16).
These competing requests should not be confused with the final relief. The court did not simply grant every remedy sought by whichever side succeeded.
The register described shares in the whole
The court examined the ownership history. The property had originally been registered to two people as tenants in common in equal shares. The defendant later acquired his father's undivided half through succession; the other half remained registered in the deceased co-owner's name (paragraphs 21–22).
A tenancy in common gives each co-owner a distinct share, but that share is not necessarily a physically separated piece. Until partition, occupation of an identifiable area does not by itself establish that the area is exclusively owned by one co-owner.
Applying that distinction, the court held that the plaintiffs could not identify the defendant's undivided half as a separate portion they had occupied adversely. It rejected the claim on that basis without deciding the usual factual threshold for adverse possession (paragraphs 23–29).
This is not a general instruction for resolving every co-owner occupation dispute. The registration, family interests, legal basis of occupation and relief sought require individual assessment.
Partition was the remedy
The defendant had produced evidence of a partition application, consent and planning approval. The process had stalled when the plaintiffs did not participate. The court considered partition appropriate and rejected the attack on the defendant's registration, while declining to examine the validity of the separate succession proceedings (paragraphs 30–36).
The detailed orders at paragraph 37 required the Land Registrar and government surveyor to visit on notice and identify occupation, including third-party purchasers' homes. Two equal portions were to be created, with allowance for access roads.
As far as practicable, existing homes were to fall within the portion associated with the plaintiffs' deceased family member, and the unoccupied area within the other portion. But equality of the two portions was to prevail regardless of how much land was occupied.
One title was to be registered in the deceased co-owner's name. The other was to be registered to the defendant to hold for beneficiaries of his father's estate. The court did not direct a simple personal transfer of the whole property to either plaintiff.
Partition and registration expenses were shared equally. After partition and registration, each side was to keep to its portion without interfering with the other's use. Each bore its own suit costs; liberty to apply was limited to implementation orders 37(c)-(f).
What this means for an occupied portion being offered for sale
The judgment mentioned sales to third parties, but its practical accommodation of those occupiers was not blanket approval of every sale or a guarantee that every footprint would remain untouched.
- Does the register describe an undivided share or a separately registered parcel?
- Has partition actually been completed, or only proposed?
- What authority supports dealings with a deceased co-owner's share?
- How will equal shares, existing homes and access be reconciled?
- Who must participate in and pay for the remaining process?
A later-history search on 11 September 2026 did not verify a subsequent variation. The actual partition, new registrations and further proceedings remain unconfirmed.
Explore ArdhiScore screening and its limits. Ask which sources are available for a dated record of the shares and proposed partition. Screening does not establish surveyed ownership or guarantee recognition of an occupied corner. Advocate advice, official records and any necessary professional field checks remain separate. This article is educational, not legal advice.