JUDGEMENT
1. The Applicant herein did file an Originating Summons dated 20.06.2025 (hereinafter referred to as “the present OS” ) against the 1 st to 4 th Respondents seeking the following Orders; -
A. THAT DENNIS OTIENO AGOT BE DECLARED TO HAVE BEEN IN OPEN, CONTINUOUS AND UNINTERRUPTED POSSESSION AND OCCUPATION OF HALF OF AN ACRE OUT OF THAT PARCEL OF LAND KNOWN AS PIONEER/NGERIA/BLOCK 1 (EATEC) 917 AND REFERRED TO AS PIONEER/NGERIA/BLOCK 1 (EATEC) 10475 AFTER SUBDIVISION FOR A PERIOD IN EXCESS OF 12 YEARS.
B. THAT A DECLARATION THAT THE 1 ST , 3 RD AND 4 TH RESPONDENTS’ TITLE OVER THE SUIT LAND HAS BEEN EXTINGUISHED BY VIRTUE OF THE DOCTRINE OF ADVERSE POSSESSION.
C. THAT THE APPLICANT BE REGISTERED AS THE PROPRIETOR OF THE SUIT LAND IN PLACE OF THE RESPONDENTS.
D. THAT THE 1 ST , 3 RD AND 4 TH RESPONDENTS DO EXECUTE THE REQUISITE INSTRUMENTS OF TRANSFER OF TITLE OF THE SUIT LAND TO THE APPLICANT AND IN DEFAULT THE DEPUTY REGISTRAR OF THIS HONOURABLE COURT DO EXECUTE THE SAME.
E. THAT COSTS OF THIS SUIT BE PROVIDED FOR.
2. The facts in support of the prayers sought in the present OS as pleaded in the Supporting Affidavit therein as are follows;-
i. The property known as LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/917 (hereinafter referred to as “the suit property” ) is registered in the names of the 1 st , 3 rd and 4 th Respondents.
ii. On or about 21.10.2004, the Applicant herein did purchase a portion of 0.1 Hectares of the suit property from the 2 nd Respondent herein through an Agreement For Sale dated 21.10.2004 at a value of Kenya Shillings Two Hundred Thousand Only (KShs.200,000/-).
iii. Thereafter, the Applicant did enter into a second Agreement For Sale dated 15.07.2005 for a portion of 0.1 Hectares on the suit property with ABRAHAM NYONGESA MATAYO for a consideration of Kenya Shillings Two Hundred Thousand (KShs.200,000/-).
iv. The Agreement For Sale dated 15.07.2005 was executed with the Consent of the 2 nd Respondent who had purchased the same from the 1 st Respondent and sold it to the person known as ABRAHAM NYONGESA MATAYO.
v. Subsequently, the suit property herein was sub-divided and the two portions contained in the Agreements For Sale dated 21.10.2004 and 15.07.2005 measuring approximately 0.2023 Hectares are registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/ 10475.
vi. The Applicant did further plead that upon payment of the purchase price based on the Agreements For Sale dated 21.10.2004 and 15.07.2005, he did take possession and use of the two portions which he had acquired in the year 2004 and 2005 and has been in occupation of the same up to date.
vii. The Applicant therefore did plead that the 1 st , 3 rd and 4 th Respondents, ownership of the property known as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 had been extinguished by the doctrine of adverse possession and the same should be registered in the name of the Applicant.
3. The present OS was duly served on the 1 st to the 4 th Respondents herein.
4. The 1 st Respondent did oppose the present OS through a Replying Affidavit dated 21.07.2025.
5. The facts pleaded by the 1 st Respondent in opposition of the present OS were as follows; -
i) The 1 st Respondent did deny the knowledge and/or existence of the two Agreements For Sale dated 21.10.2004 between the 2 nd Respondent and the Applicant and/or the second Agreement For Sale dated 15.07.2005 between one ABRAHAM NYONGESA MATAYO and the Applicant relating to a portion of 0.2 Hectares on the suit property currently registered as LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/10475.
ii) The 1 st Respondent did further plead that if indeed the two Agreements For Sale dated 21.10.2004 and 15.07.2005 did exist, then there was no privy of Contract between the Applicant and herself over any portion of land in the suit property herein.
iii) The 1 st Respondent did state that if the Applicant was on any portion measuring 0.2 Hectares on the suit property, then such an occupation and/or use of the same was unlawful and illegal hence amounts to trespass.
iv) The 1 st Respondent in conclusion did plead that the present OS was incompetent, frivolous and devoid of merit.
6. The 2 nd Respondent did respond to the present OS through a Replying Affidavit dated 05.11.2025.
7. In the Replying Affidavit dated 05.11.2025 by the 2 nd Respondent, the following facts were pleaded; -
i. First and foremost, the 2 nd Respondent did plead that the 1 st Respondent herein had sold to him a portion of land measuring 0.2 Hectares from the suit property herein.
ii. After the purchase of the 0.2 Hectares from the 1 st Respondent, the 2 nd Respondent did sub-divide the same into two portions measuring 0.1 Hectares each.
iii. The first portion of 0.1 Hectares was then sold off to one ABRAHAM NYONGESA MATAYO through the Agreement For Sale dated 21.02.2004 at a consideration of Kenya Shillings One Hundred and Fifty Thousand (KShs.150,000/-) which payment was made in full.
iv. Thereafter, the person known as ABRAHA NYONGESA MATAYO did again sale the portion measuring 0.1 Hectares on the 15.07.2005 to the Applicant herein for a consideration of Kenya Shillings Two Hundred Thousand (KShs.200,000/) which payment was made in full.
v. As regard the second portion of 0.1 Hectare which was still in the ownership of the 2 nd Respondent, the same was also bought by the Applicant herein on the 21.10.2004 at a consideration of Kenya Shillings Two Hundred Thousand (KShs.200,000/-) which sum was fully settled.
vi. The 2 nd Respondent did confirm that the portion measuring 0.2 Hectares which he had purchased from the 1 st Respondent within the suit property is what is now registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475.
vii. Further to the foregoing, the 2 nd Respondent did plead that the Applicant herein had been in occupation and use of the portion registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 since the years 2004 and 2005 when he did purchase the same.
viii. The 2 nd Respondent did confirm that the 2 nd Respondent was the lawful owner of the portion registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 measuring 0.2 Hectares from the original suit property.
ix. The 2 nd Respondent did therefore plead that the present OS was merited and should be allowed.
8. The 3 rd and 4 th Respondents herein did not file any Replying Affidavits in response to the present OS.
9. The Applicant herein did not file any Further Affidavits in response to the 1 st and 2 nd Respondents Replying Affidavits filed before the Court.
10. Consequently, the pleadings did close and the matter was set down for hearing.
APPLICANT’S TESTIMONIES & DOCUMENTARY EVIDENCE
11. The Applicant herein did testify as the first witness and was marked as PW 1.
12. The Applicant did inform the Court that he is a resident of Uasin Gishu but was currently working in Qatar.
13. The Applicant did testify that he would rely on the Supporting Affidavit sworn on the 20.06.2025 in support of the present OS as his evidence in chief.
14. In support of his evidence in chief, the Applicant did produce the following documents; -
PW 1 EXHIBIT 1 -A Copy of an Agreement for Sale dated 21.10.2004 between the Applicant and the 2 nd Respondent.
PW 1 EXHIBIT 2-A Copy of an Agreement for Sale dated 15.07.2005 between the Applicant and Abraham Nyongesa Matayo.
PW1 EXHIBIT 3- A Copy of an Agreement for Sale dated 21.02.2004 between the 2 nd Respondent and Abraham Nyongesa Matayo.
PW1 EXHIBIT 4-A Copy of a Mutation Form for Sub-division of Block 1 (EATEC)/917.
PW1 EXHIBIT 5– A Copy of Official Search of Block 1 (EATEC)/10475 dated 24.09.2009.
15. The Applicant did state that he is the lawful owner of a portion measuring 0.2 Hectares currently registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 in the names of the 1 st , 3 rd and 4 th Respondents.
16. The Applicant did aver that the portion of 0.2 Hectares registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 emanated from a portion of 0.2 Hectares of the suit property which had been purchased by the 2 nd Respondent from the 1 st Respondent herein before the sub-division of the same.
17. The Applicant did plead that the portion of 0.2 Hectares which was purchased from the 1 st Respondent was sub-divided into two equal portions which were sold separately to him through two Agreements For sale dated 21.10.2004 and 15.07.2005 by the 2 nd Respondent and one ABRAHAM NYONGESA MATAYO.
18. Based on the two Agreement For Sale dated 21.10.2004 and 15.07.2005, the Applicant herein did take physical possession and use of the same and has continued to enjoy the same up to the date of filing the present OS.
19. The Applicant therefore did plead that the 1 st , 3 rd and 4 th Respondents’ registration of the portion measuring 0.2 Hectares on the suit property registered on the 26.10.2001 had been extinguished by the doctrine of adverse possession and the portion registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 should be registered in the name of the Applicant herein.
20. On cross-examination by Counsel for the 1 st and 3 rd Respondent, the Applicant did admit that he never did any transaction with the 1 st and 3 rd Respondent herein.
21. Nevertheless, based on the Register of the suit property, the 1 st , 3 rd and 4 th Respondents were the registered owners of the same in the year 2001.
22. The Applicant did confirm that he did not have the Agreement For Sale between the 1 st Respondent and the 2 nd Respondent for a portion of 0.2 Hectares within the suit property.
23. The Applicant did aver that at the time of purchase, the presentation by the 2 nd Respondent was that he was the lawful owner of a portion measuring 0.2 Hectares on the suit property having purchased the same from the 1 st Respondent.
24. Nevertheless, the Applicant did reiterate that he had been in occupation and use of the portion measuring 0.2 Hectares within the suit property since the year 2004 and 2005 when he purchased the same from the 2 nd Respondent and one ABRAHAM NYONGESA MATAYO.
25. On cross-examination by Counsel for the 2 nd respondent, the Applicant did confirm that the Agreement For Sale produced as PW 1 EXHIBIT 1 was between himself and the 2 nd Respondent over a portion measuring 0.1 Hectares on the suit property at a consideration of Kenya Shillings Two Hundred Thousand (KShs.200,000/-) which was paid in full.
26. As regards the Agreement For Sale produced as PW 1 EXHIBIT 2, the Applicant did confirm that the same was for the second portion of 0.1 Hectares that was owned by one ABRAHAM NYONGESA MATAYO which was purchased at Kenya Shillings Two Hundred Thousand (KShs.200,000/-) which was paid in full.
27. Lastly, the Applicant did aver that the Agreement For Sale produced as PW 1 EXHIBIT 3 was between the 2 nd Respondent and one ABRAHAM NYONGESA MATAYO for a portion of 0.1 Hectares within the portion of 0.2 Hectares purchased from the 1 st Respondent who was even a witness in the said Agreement For Sale.
28. The Applicant did aver that the presence of the 1 st Respondent’s signature in the Agreement For Sale dated 21.02.2004 between the 2 nd Respondent and one ABRAHAM NYONGESA MATAYO did demonstrate her recognition of the 2 nd Respondent as the legal and legitimate owner of the portion measuring 0.2 Hectares on the suit property now registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475.
29. The Applicant did further insist that upon purchase of the two portions of land within the suit property from the 2 nd Respondent and ABRAHAM NYONGESA MATAYO, he did take possession and use of the same and is still in occupation and use of the same even at the time of filing the present OS.
30. On cross-examination by Counsel for the 4 th Respondent, the Applicant did testify that he had been in occupation of the portion measuring 0.2 Hectares on the suit property since the years 2004 and 2005 without any interruption.
31. The Applicant did inform the Court that he had never met the 4 th Respondent and he does not live on the portion of 0.2 Hectares of the suit property which he is in occupation of.
32. The Applicant did state that he had no Agreement For Sale with the 4 th Respondent and had never been sued on the basis of the allegation that he is a trespasser on the suit property.
33. In re-examination, the Applicant did confirm that at the time of purchase of the two portions measuring 0.2 Hectares within the suit property, he was shown the boundaries and did undertake an inspection of the same.
34. At the end of the re-examination, PW1 was duly discharged from the witness box.
35. The Applicant’s second witness was one BERNARD WEKESA SIMIYU who was marked as PW 2.
36. PW 2 did introduce himself as a resident of Uasin Gishu County and is engaged in ICT business.
37. PW 2 did inform the Court that he had sworn an Affidavit dated 10.02.2026 of which he did adopt as his evidence in chief.
38. PW 2 did testify that he was a brother-in-law to the Applicant and had been left on the portion of land measuring 0.2 Hectares on the suit property as a care taker of the same.
39. PW 2 did aver that the Applicant’s occupation of the 0.2 Hectares on the suit property was over Eighteen (18) years and during this time, the Applicant had first and foremost erected a fence around it and been cultivating the same and had even developed some temporary structures thereon.
40. PW 2 did state that during his period of stay on the portion measuring 0.2 Hectares on the suit property, there had never been any interruption and/or claim by the 1 st to 4 th Respondents herein.
41. PW 2 then did produce the following documents in support of his testimony in chief; -
PW 2 EXHIBIT 1 - Copy of ID No. 9998329 in the name of PW2.
PW2 EXHIBIT 2 (a & b) – Photos of the perimeter fence, gate and a house thereof and crops.
42. On cross-examination by counsel for the 1 st and 3 rd Respondents, PW 2 did reiterate that he was a brother-in-law to the Applicant herein.
43. PW 2 did state that to his knowledge, the portion measuring 0.2 Hectares did belong to the Applicant but could not tell from whom he had purchased the same.
44. On being referred to PW 1 EXHIBIT 1, PW 2 did point out that the Agreement For Sale dated 21.10.2004 was in relation to a portion measuring 0.1 Hectares on the suit property which was being sold by the 2 nd Respondent to the Applicant herein.
45. PW 2 did confirm that in the Agreement for Sale dated 21.10.2004, the 1 st Respondent was not a witness on the same.
46. As regards PW 1 EXHIBIT 2, PW 2 did confirm that the same was an Agreement For Sale between the Applicant and one ABRAHAM NYONGESA MATAYO over another portion measuring 0.1 Hectares on the suit property.
47. PW 2 did deny the allegation that he had attended a meeting with the 1 st Respondent at Comfy Hotel over the portion of land measuring 0.2 Hectares on the suit property owned by the Applicant.
48. PW 2 did confirm that the portion occupied by the Applicant was 0.2 Hectares which is around half an Acre but could not tell the registered number of the said portion.
49. On cross-examination by Counsel for the 2 nd Respondent, PW 2 did reiterate that the portion measuring 0.2 Hectares on the suit property was in occupation and use by the Applicant since the year 2007.
50. PW 2 did insist that since the Applicant did take possession and use of the portion measuring 0.2 Hectares, the 1 st ,3 rd and 4 th Respondents herein had never interrupted the said occupation and/or use up to the time of filing the present OS.
51. PW 2 did confirm that upon the Applicant taking possession of the 0.2 Hectares on the suit property, he did erect a fence on the same, erected a temporary structure to rear chicken and has been cultivating on the same ever since.
52. PW 2 did deny any allegations and/or knowledge of any criminal proceedings instituted by any of the Respondents against the Applicant or himself.
53. On cross-examination by Counsel for the 4 th respondent, PW 2 did admit that he was not familiar with the 4 th Respondent.
54. PW 2 did confirm that the temporary structure on the portion measuring 0.2 Hectares within the suit property claimed by the Applicant was built by him in the year 2013 after the perimeter fence had been completed.
55. PW 2 did insist that during his occupation and use of the 0.2 Hectares on the suit property, there had never been any interruptions and/or harassment from anyone including the 1 st to 4 th Respondents.
56. On re-examination, PW 2 did state that he had not been privy to the Agreements For Sale executed by the Applicant and did not know the people that were involved therein.
57. PW 2 did conclude his re-examination with the testimony that the Applicant was the one currently in occupation and use of the suit property up to the time of filing the present OS.
58. At the end of the re-examination, PW2 was discharged from the witness box and the Applicant did close his case thereafter.
1 ST AND 3 RD RESPONDENT’S TESTIMONIES & DOCUMENTARY EVIDENCE
59. The 1 st witness was the 1 st Respondent herein who was marked as DW 1.
60. The 1 st Respondent introduced herself as a resident of Uasin Gishu and a former employee of EATEC.
61. The 1 st Respondent did confirm to be familiar with the 2 nd , 3 rd and 4 th Respondents herein but not the Applicant.
62. The 1 st Respondent did inform the Court that she had prepared and executed two documents namely the Replying Affidavit dated 21.07.2025 and the Witness Statement dated 10.02.2026 of which she did adopt the same as her testimony in chief.
63. The 1 st Respondent did produce the following documents in support of her evidence in Chief; -
DW 1 EXHIBIT 1- A Copy of an Agreement for Sale dated 23.10.2001 between the 1 st Respondent and the 2 nd Respondent over a portion of 0.2 Hectares on the suit property at a consideration of Kenya Shillings Two Hundred and Twenty Thousand (KShs.220,000/-).
DW 1 EXHIBIT 2- A Copy of a Bank slip for Kenya Shillings One Hundred Thousand (KShs.100,000/-)
DW 1 EXHIBIT 3- A Copy of a Demand Letter dated 26.11.2021 from the 1 st Respondent to the 2 nd Respondent .
64. The 1 st Respondent did confirm that there was an Agreement For Sale dated 23.10.2001 with the 2 nd Respondent for the purchase of 0.2 Hectares of the suit property at a consideration of Kenya Shillings Two Hundred and Twenty Thousand (KShs.220,000/-).
65. Upon execution of the Agreement For Sale dated 23.10.2001, the 2 nd Respondent did pay a sum of Kenya Shillings One Hundred Thousand (KShs.100,000/-) to the 1 st Respondent leaving a balance of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000/-) which was to be cleared within Six Months from the date of execution.
66. Unfortunately, the 2 nd Respondent has failed and/or refused to clear the balance of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000/-) up to date.
67. The 1 st Respondent did state that the failure to process the title of the 0.2 Hectares in the name of the 2 nd Respondent was due to the breach of contract based on the Agreement For Sale dated 23.10.2001.
68. The 1 st Respondent did confirm being aware that the 2 nd Respondent had sold a portion of 0.1 Hectares to the person known as ABRAHAM NYONGESA MATAYO but was not aware that the second portion of 0.1 Hectares had also been sold to the Applicant herein.
69. The 1 st Respondent did testify that indeed the 2 nd Respondent had been given possession of the 0.2 Hectares on the suit property but any subsequent sale thereafter by the 2 nd Respondent was to be with the consent of the 1 st Respondent.
70. The 1 st Respondent did state that the two Agreements For Sale dated 21.10.2004 and 15.07.2005 were executed without her knowledge and/or consent to the Applicant herein.
71. The 1 st Respondent did inform the Court that around the year 2016, there was a meeting held at Comfy Hotel in Eldoret with a view of reaching an amicable settlement but the 2 nd Respondent failed to attend.
72. According to the 1 st Respondent, she did not have any objection to transfer the portion measuring 0.2 Hectares within the suit property now registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/917 to the Applicant herein as long as the 2 nd Respondent had cleared his obligations based on the Agreement For Sale dated 23.10.2001.
73. The 1 st Respondent did confirm that a Demand Letter dated 26.11.2021 was issued to the 2 nd Respondent but there was no response thereof.
74. In concluding her examination in chief, the 1 st Respondent did urge the Court to direct the 2 nd Respondent to clear the balance under the Agreement For Sale dated 23.10.2001 with interest and she would facilitate the transfer of the portion measuring 0.2 Hectares occupied by the Applicant herein.
75. On cross-examination by Counsel for the 2 nd respondent, the 1 st Respondent did confirm that an Agreement For Sale dated 23.10.2001 was executed with the 2 nd Respondent.
76. The 1 st Respondent did further admit that based on the Agreement For Sale dated 23.10.2001, the 2 nd Respondent was given permission and/or consent to occupy and use the portion measuring 0.2 Hectares on the suit property.
77. The 1 st Respondent did aver that the balance of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000/-) was to be cleared within Six Months from the date of execution but the mode of payment was not specified.
78. Be that as it may, the 1 st Respondent did reiterate that the 2 nd Respondent has never cleared the sum of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000) based on the Agreement For Sale dated 23.10.2001.
79. On being referred to PW 1 EXHIBIT 3, the 1 st Respondent did confirm that she was a signatory to the Agreement For Sale dated 21.02.2004 between the 2 nd Respondent and ABRAHAM NYONGESA MATAYO.
80. The 1 st Respondent did aver that at the time of consenting to the Agreement For Sale dated 21.02.2004, the 2 nd Respondent had undertaken to clear the balance of the Agreement For Sale dated 24.10.2001 on receipt of the purchase price but once again failed to do so.
81. The 1 st Respondent did disclose to the Court that sometime in the year 2022, she had filed a case against the 2 nd Respondent for the balance of the purchase price contained in the Agreement For Sale dated 24.10.2001 but the same was struck out due to principle of limitation of time.
82. The 1 st Respondent did inform the Court that currently, the suit property was registered in the names of the 1 st Respondent, 3 rd Respondent and the 4 th Respondent although the Applicant was in occupation of the same.
83. The 1 st Respondent did testify that she had never instituted any proceedings to evict the Applicant herein from the portion measuring 0.2 Hectares on the suit property.
84. On cross-examination by Counsel for the 4 th Respondent, the 1 st Respondent did confirm that the 4 th Respondent is one of the registered owners.
85. The 1 st Respondent did state that in the Agreement For Sale dated 21.02.2004, she was not the Vendor but only a witness.
86. The 1 st Respondent did admit that she did not inform the 3 rd and 4 th Respondents about the existence of the Agreement For Sale dated 21.02.2004.
87. The 1 st Respondent did aver that the portion of 0.2 Hectares which had been sold to the 2 nd Respondent has been fenced and there are structures therein although she could not positively indicate whose they were.
88. The 1 st Respondent did inform the Court that the Agreement For Sale dated 23.10.2001 with the 2 nd Respondent had never been rescinded by either herself and/or the 2 nd Respondent.
89. On cross-examination by Counsel for the Applicant, the 1 st Respondent did confirm witnessing the Agreement For Sale dated 21.02.2004.
90. On re-examination, the 1 st Respondent did reiterate that the balance of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000/-) from the 2 nd Respondent was to be paid within Six (6) months from the date of execution but has never been settled.
91. In conclusion, the 1 st Respondent was of the view that the 2 nd Respondent and/or any other person on the said portion was in occupation of the same on the basis of her consent to the 2 nd Respondent.
92. At the end this Re-examination, the 1 st Respondent was discharged and the 1 st and 3 rd Respondents did close their case thereafter.
2 ND RESPONDENT’S TESTIMONY & DOCUMENTARY EVIDENCE
93. The first witness to be called was the 2 nd Respondent who was marked as DW 2.
94. The 2 nd Respondent did inform the Court that he had prepared a Replying Affidavit dated 05.11.2025 of which she did adopt the same as his evidence in chief.
95. In support of his evidence in Chief, the 2 nd Respondent did produce the following document; -
DW 2 EXHIBIT 1- A COPY OF AN AFFIDAVIT DATED 24.06.2025 SWORN BY ABRAHAM NYONGESA MATAYO.
96. The 2 nd Respondent did admit that a Agreement For Sale dated 23.10.2001 was executed with the 1 st Respondent over a portion of 0.2 Hectares within the suit property for a consideration of Kenya Shillings Two Hundred and Twenty Thousand (KShs.220,000/-).
97. On execution of the Agreement For Sale dated 23.10.2001, a sum of Kenya Shillings One Hundred Thousand (KShs.100,000/-) was paid to the 1 st Respondent in cash and the balance of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000/-) was deposited in a Standard Bank account.
98. In essence, the 2 nd Respondent did deny owing the 1 st Respondent any monies under the Agreement For Sale dated 23.10.2001.
99. The 2 nd Respondent did further admit selling a portion of 0.1 Hectares out of the 0.2 Hectares to ABRAHAM NYONGESA MATAYO and the other 0.1 Hectares to the Applicant herein.
100. The 2 nd Respondent did inform the Court that the Applicant herein had been in occupation of the portion measuring 0.2 Hectares since the year 2004 when he handed over occupation of the same.
101. On cross-examination by counsel for the 1 st and 3 rd Respondents, the 2 nd Respondent did clarify that the sum of Kenya Shillings Two Hundred and Twenty Thousand (KShs.220,000/-) had been settled through three instalments which were One Hundred Thousand (KShs.100,000/-) on execution of the Agreement For Sale in cash.
102. The 2 nd Respondent did concede that there was proof of the Kenya Shillings One Hundred Thousand (KShs.100,000/-) made at the 1 st Respondent’s bank and/or the Kenya Shillings Twenty Thousand (KShs.20,000/-) made in cash.
103. He admitted that during both sales, to Abraham and the applicant respectively, he did not have the title to the suit property.
104. In other words, the 2 nd Respondent did admit that he had no proof that the full purchase price had been paid to the 1 st Respondent based on the Agreement dated 23.10.2001.
105. The 2 nd Respondent did testify that the Agreement For Sale with the Applicant was without the knowledge of the Applicant herein.
106. The 2 nd Respondent did aver that since he completed paying for the portion of 02. Hectares, the 1 st Respondent had never handed him the ownership documents and he had also never sued the 1 st Respondent for the same.
107. On cross-examination by Counsel for the 4 th Respondent, the 2 nd Respondent did state that he could not tell who the registered owners of the suit property were.
108. Consequently, the 2 nd Respondent only came to learn about the 4 th Respondent’s registration as the owner of the suit property upon being served with the present suit.
109. The 2 nd Respondent did contend that by the 1 st Respondent witnessing the Agreement For Sale dated 21.02.2004, she had confirmed that the full purchase price of the original 0.2 Hectares had been paid.
110. On cross-examination by counsel for the Applicant, the 2 nd Respondent did agree that he was granted possession and use of the portion measuring 0.2 Hectares within the suit property based on the Agreement For Sale dated 24.10.2001 with the 1 st Respondent.
111. The 2 nd Respondent did aver that the 1 st Respondent did not object to him selling the portion to third parties thereafter.
112. The 2 nd Respondent did therefore inform the Court that he did not have any interest in the portion measuring 0.2 Hectares within the suit property registered in the names of the 1 st , 3 rd and 4 th Respondents.
113. In any event, the portion of 0.2 Hectares within the suit property had been demarcated, fenced and was in occupation of the Applicant herein.
114. On re-examination, the 2 nd Respondent did confirm that the full purchase price under the Agreement dated 24.10.2001 with the 1 st Respondent had been fully settled.
115. The 2 nd Respondent did reiterate that he had sold his portion of 0.1 Hectares to the Applicant herein and the other portion of 0.1 Hectares to ABRAHAM NYONGESA MATAYO hence had no interest whatsoever in the suit property.
116. At the end of the re-examination, the 2 nd Respondent was discharged and his case closed thereafter.
4 TH RESPONDENT’S TESTIMONY & DOCUMENTARY EVIDENCE
117. The first witness was the 4 th Respondent who was marked as DW 3.
118. The 4 th Respondent did introduce himself as a resident of Uasin Gishu.
119. The 4 th Respondent then did inform the Court that he had prepared and filed a Replying Affidavit dated 14.11.2025 of which he did adopt the same as his evidence in chief.
120. The 4 th Respondent did testify that he was indeed one of the Registered owners of the suit property but had no interest in the same.
121. There was no cross-examination by the Applicants, the 1 st and 3 rd Respondents as well as the 2 nd Respondent.
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1. The Applicant herein did file an Originating Summons dated 20.06.2025 (hereinafter referred to as “the present OS” ) against the 1 st to 4 th Respondents seeking the following Orders; -
A. THAT DENNIS OTIENO AGOT BE DECLARED TO HAVE BEEN IN OPEN, CONTINUOUS AND UNINTERRUPTED POSSESSION AND OCCUPATION OF HALF OF AN ACRE OUT OF THAT PARCEL OF LAND KNOWN AS PIONEER/NGERIA/BLOCK 1 (EATEC) 917 AND REFERRED TO AS PIONEER/NGERIA/BLOCK 1 (EATEC) 10475 AFTER SUBDIVISION FOR A PERIOD IN EXCESS OF 12 YEARS.
B. THAT A DECLARATION THAT THE 1 ST , 3 RD AND 4 TH RESPONDENTS’ TITLE OVER THE SUIT LAND HAS BEEN EXTINGUISHED BY VIRTUE OF THE DOCTRINE OF ADVERSE POSSESSION.
C. THAT THE APPLICANT BE REGISTERED AS THE PROPRIETOR OF THE SUIT LAND IN PLACE OF THE RESPONDENTS.
D. THAT THE 1 ST , 3 RD AND 4 TH RESPONDENTS DO EXECUTE THE REQUISITE INSTRUMENTS OF TRANSFER OF TITLE OF THE SUIT LAND TO THE APPLICANT AND IN DEFAULT THE DEPUTY REGISTRAR OF THIS HONOURABLE COURT DO EXECUTE THE SAME.
E. THAT COSTS OF THIS SUIT BE PROVIDED FOR.
2. The facts in support of the prayers sought in the present OS as pleaded in the Supporting Affidavit therein as are follows;-
i. The property known as LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/917 (hereinafter referred to as “the suit property” ) is registered in the names of the 1 st , 3 rd and 4 th Respondents.
ii. On or about 21.10.2004, the Applicant herein did purchase a portion of 0.1 Hectares of the suit property from the 2 nd Respondent herein through an Agreement For Sale dated 21.10.2004 at a value of Kenya Shillings Two Hundred Thousand Only (KShs.200,000/-).
iii. Thereafter, the Applicant did enter into a second Agreement For Sale dated 15.07.2005 for a portion of 0.1 Hectares on the suit property with ABRAHAM NYONGESA MATAYO for a consideration of Kenya Shillings Two Hundred Thousand (KShs.200,000/-).
iv. The Agreement For Sale dated 15.07.2005 was executed with the Consent of the 2 nd Respondent who had purchased the same from the 1 st Respondent and sold it to the person known as ABRAHAM NYONGESA MATAYO.
v. Subsequently, the suit property herein was sub-divided and the two portions contained in the Agreements For Sale dated 21.10.2004 and 15.07.2005 measuring approximately 0.2023 Hectares are registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/ 10475.
vi. The Applicant did further plead that upon payment of the purchase price based on the Agreements For Sale dated 21.10.2004 and 15.07.2005, he did take possession and use of the two portions which he had acquired in the year 2004 and 2005 and has been in occupation of the same up to date.
vii. The Applicant therefore did plead that the 1 st , 3 rd and 4 th Respondents, ownership of the property known as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 had been extinguished by the doctrine of adverse possession and the same should be registered in the name of the Applicant.
3. The present OS was duly served on the 1 st to the 4 th Respondents herein.
4. The 1 st Respondent did oppose the present OS through a Replying Affidavit dated 21.07.2025.
5. The facts pleaded by the 1 st Respondent in opposition of the present OS were as follows; -
i) The 1 st Respondent did deny the knowledge and/or existence of the two Agreements For Sale dated 21.10.2004 between the 2 nd Respondent and the Applicant and/or the second Agreement For Sale dated 15.07.2005 between one ABRAHAM NYONGESA MATAYO and the Applicant relating to a portion of 0.2 Hectares on the suit property currently registered as LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/10475.
ii) The 1 st Respondent did further plead that if indeed the two Agreements For Sale dated 21.10.2004 and 15.07.2005 did exist, then there was no privy of Contract between the Applicant and herself over any portion of land in the suit property herein.
iii) The 1 st Respondent did state that if the Applicant was on any portion measuring 0.2 Hectares on the suit property, then such an occupation and/or use of the same was unlawful and illegal hence amounts to trespass.
iv) The 1 st Respondent in conclusion did plead that the present OS was incompetent, frivolous and devoid of merit.
6. The 2 nd Respondent did respond to the present OS through a Replying Affidavit dated 05.11.2025.
7. In the Replying Affidavit dated 05.11.2025 by the 2 nd Respondent, the following facts were pleaded; -
i. First and foremost, the 2 nd Respondent did plead that the 1 st Respondent herein had sold to him a portion of land measuring 0.2 Hectares from the suit property herein.
ii. After the purchase of the 0.2 Hectares from the 1 st Respondent, the 2 nd Respondent did sub-divide the same into two portions measuring 0.1 Hectares each.
iii. The first portion of 0.1 Hectares was then sold off to one ABRAHAM NYONGESA MATAYO through the Agreement For Sale dated 21.02.2004 at a consideration of Kenya Shillings One Hundred and Fifty Thousand (KShs.150,000/-) which payment was made in full.
iv. Thereafter, the person known as ABRAHA NYONGESA MATAYO did again sale the portion measuring 0.1 Hectares on the 15.07.2005 to the Applicant herein for a consideration of Kenya Shillings Two Hundred Thousand (KShs.200,000/) which payment was made in full.
v. As regard the second portion of 0.1 Hectare which was still in the ownership of the 2 nd Respondent, the same was also bought by the Applicant herein on the 21.10.2004 at a consideration of Kenya Shillings Two Hundred Thousand (KShs.200,000/-) which sum was fully settled.
vi. The 2 nd Respondent did confirm that the portion measuring 0.2 Hectares which he had purchased from the 1 st Respondent within the suit property is what is now registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475.
vii. Further to the foregoing, the 2 nd Respondent did plead that the Applicant herein had been in occupation and use of the portion registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 since the years 2004 and 2005 when he did purchase the same.
viii. The 2 nd Respondent did confirm that the 2 nd Respondent was the lawful owner of the portion registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 measuring 0.2 Hectares from the original suit property.
ix. The 2 nd Respondent did therefore plead that the present OS was merited and should be allowed.
8. The 3 rd and 4 th Respondents herein did not file any Replying Affidavits in response to the present OS.
9. The Applicant herein did not file any Further Affidavits in response to the 1 st and 2 nd Respondents Replying Affidavits filed before the Court.
10. Consequently, the pleadings did close and the matter was set down for hearing.
APPLICANT’S TESTIMONIES & DOCUMENTARY EVIDENCE
11. The Applicant herein did testify as the first witness and was marked as PW 1.
12. The Applicant did inform the Court that he is a resident of Uasin Gishu but was currently working in Qatar.
13. The Applicant did testify that he would rely on the Supporting Affidavit sworn on the 20.06.2025 in support of the present OS as his evidence in chief.
14. In support of his evidence in chief, the Applicant did produce the following documents; -
PW 1 EXHIBIT 1 -A Copy of an Agreement for Sale dated 21.10.2004 between the Applicant and the 2 nd Respondent.
PW 1 EXHIBIT 2-A Copy of an Agreement for Sale dated 15.07.2005 between the Applicant and Abraham Nyongesa Matayo.
PW1 EXHIBIT 3- A Copy of an Agreement for Sale dated 21.02.2004 between the 2 nd Respondent and Abraham Nyongesa Matayo.
PW1 EXHIBIT 4-A Copy of a Mutation Form for Sub-division of Block 1 (EATEC)/917.
PW1 EXHIBIT 5– A Copy of Official Search of Block 1 (EATEC)/10475 dated 24.09.2009.
15. The Applicant did state that he is the lawful owner of a portion measuring 0.2 Hectares currently registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 in the names of the 1 st , 3 rd and 4 th Respondents.
16. The Applicant did aver that the portion of 0.2 Hectares registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 emanated from a portion of 0.2 Hectares of the suit property which had been purchased by the 2 nd Respondent from the 1 st Respondent herein before the sub-division of the same.
17. The Applicant did plead that the portion of 0.2 Hectares which was purchased from the 1 st Respondent was sub-divided into two equal portions which were sold separately to him through two Agreements For sale dated 21.10.2004 and 15.07.2005 by the 2 nd Respondent and one ABRAHAM NYONGESA MATAYO.
18. Based on the two Agreement For Sale dated 21.10.2004 and 15.07.2005, the Applicant herein did take physical possession and use of the same and has continued to enjoy the same up to the date of filing the present OS.
19. The Applicant therefore did plead that the 1 st , 3 rd and 4 th Respondents’ registration of the portion measuring 0.2 Hectares on the suit property registered on the 26.10.2001 had been extinguished by the doctrine of adverse possession and the portion registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475 should be registered in the name of the Applicant herein.
20. On cross-examination by Counsel for the 1 st and 3 rd Respondent, the Applicant did admit that he never did any transaction with the 1 st and 3 rd Respondent herein.
21. Nevertheless, based on the Register of the suit property, the 1 st , 3 rd and 4 th Respondents were the registered owners of the same in the year 2001.
22. The Applicant did confirm that he did not have the Agreement For Sale between the 1 st Respondent and the 2 nd Respondent for a portion of 0.2 Hectares within the suit property.
23. The Applicant did aver that at the time of purchase, the presentation by the 2 nd Respondent was that he was the lawful owner of a portion measuring 0.2 Hectares on the suit property having purchased the same from the 1 st Respondent.
24. Nevertheless, the Applicant did reiterate that he had been in occupation and use of the portion measuring 0.2 Hectares within the suit property since the year 2004 and 2005 when he purchased the same from the 2 nd Respondent and one ABRAHAM NYONGESA MATAYO.
25. On cross-examination by Counsel for the 2 nd respondent, the Applicant did confirm that the Agreement For Sale produced as PW 1 EXHIBIT 1 was between himself and the 2 nd Respondent over a portion measuring 0.1 Hectares on the suit property at a consideration of Kenya Shillings Two Hundred Thousand (KShs.200,000/-) which was paid in full.
26. As regards the Agreement For Sale produced as PW 1 EXHIBIT 2, the Applicant did confirm that the same was for the second portion of 0.1 Hectares that was owned by one ABRAHAM NYONGESA MATAYO which was purchased at Kenya Shillings Two Hundred Thousand (KShs.200,000/-) which was paid in full.
27. Lastly, the Applicant did aver that the Agreement For Sale produced as PW 1 EXHIBIT 3 was between the 2 nd Respondent and one ABRAHAM NYONGESA MATAYO for a portion of 0.1 Hectares within the portion of 0.2 Hectares purchased from the 1 st Respondent who was even a witness in the said Agreement For Sale.
28. The Applicant did aver that the presence of the 1 st Respondent’s signature in the Agreement For Sale dated 21.02.2004 between the 2 nd Respondent and one ABRAHAM NYONGESA MATAYO did demonstrate her recognition of the 2 nd Respondent as the legal and legitimate owner of the portion measuring 0.2 Hectares on the suit property now registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/10475.
29. The Applicant did further insist that upon purchase of the two portions of land within the suit property from the 2 nd Respondent and ABRAHAM NYONGESA MATAYO, he did take possession and use of the same and is still in occupation and use of the same even at the time of filing the present OS.
30. On cross-examination by Counsel for the 4 th Respondent, the Applicant did testify that he had been in occupation of the portion measuring 0.2 Hectares on the suit property since the years 2004 and 2005 without any interruption.
31. The Applicant did inform the Court that he had never met the 4 th Respondent and he does not live on the portion of 0.2 Hectares of the suit property which he is in occupation of.
32. The Applicant did state that he had no Agreement For Sale with the 4 th Respondent and had never been sued on the basis of the allegation that he is a trespasser on the suit property.
33. In re-examination, the Applicant did confirm that at the time of purchase of the two portions measuring 0.2 Hectares within the suit property, he was shown the boundaries and did undertake an inspection of the same.
34. At the end of the re-examination, PW1 was duly discharged from the witness box.
35. The Applicant’s second witness was one BERNARD WEKESA SIMIYU who was marked as PW 2.
36. PW 2 did introduce himself as a resident of Uasin Gishu County and is engaged in ICT business.
37. PW 2 did inform the Court that he had sworn an Affidavit dated 10.02.2026 of which he did adopt as his evidence in chief.
38. PW 2 did testify that he was a brother-in-law to the Applicant and had been left on the portion of land measuring 0.2 Hectares on the suit property as a care taker of the same.
39. PW 2 did aver that the Applicant’s occupation of the 0.2 Hectares on the suit property was over Eighteen (18) years and during this time, the Applicant had first and foremost erected a fence around it and been cultivating the same and had even developed some temporary structures thereon.
40. PW 2 did state that during his period of stay on the portion measuring 0.2 Hectares on the suit property, there had never been any interruption and/or claim by the 1 st to 4 th Respondents herein.
41. PW 2 then did produce the following documents in support of his testimony in chief; -
PW 2 EXHIBIT 1 - Copy of ID No. 9998329 in the name of PW2.
PW2 EXHIBIT 2 (a & b) – Photos of the perimeter fence, gate and a house thereof and crops.
42. On cross-examination by counsel for the 1 st and 3 rd Respondents, PW 2 did reiterate that he was a brother-in-law to the Applicant herein.
43. PW 2 did state that to his knowledge, the portion measuring 0.2 Hectares did belong to the Applicant but could not tell from whom he had purchased the same.
44. On being referred to PW 1 EXHIBIT 1, PW 2 did point out that the Agreement For Sale dated 21.10.2004 was in relation to a portion measuring 0.1 Hectares on the suit property which was being sold by the 2 nd Respondent to the Applicant herein.
45. PW 2 did confirm that in the Agreement for Sale dated 21.10.2004, the 1 st Respondent was not a witness on the same.
46. As regards PW 1 EXHIBIT 2, PW 2 did confirm that the same was an Agreement For Sale between the Applicant and one ABRAHAM NYONGESA MATAYO over another portion measuring 0.1 Hectares on the suit property.
47. PW 2 did deny the allegation that he had attended a meeting with the 1 st Respondent at Comfy Hotel over the portion of land measuring 0.2 Hectares on the suit property owned by the Applicant.
48. PW 2 did confirm that the portion occupied by the Applicant was 0.2 Hectares which is around half an Acre but could not tell the registered number of the said portion.
49. On cross-examination by Counsel for the 2 nd Respondent, PW 2 did reiterate that the portion measuring 0.2 Hectares on the suit property was in occupation and use by the Applicant since the year 2007.
50. PW 2 did insist that since the Applicant did take possession and use of the portion measuring 0.2 Hectares, the 1 st ,3 rd and 4 th Respondents herein had never interrupted the said occupation and/or use up to the time of filing the present OS.
51. PW 2 did confirm that upon the Applicant taking possession of the 0.2 Hectares on the suit property, he did erect a fence on the same, erected a temporary structure to rear chicken and has been cultivating on the same ever since.
52. PW 2 did deny any allegations and/or knowledge of any criminal proceedings instituted by any of the Respondents against the Applicant or himself.
53. On cross-examination by Counsel for the 4 th respondent, PW 2 did admit that he was not familiar with the 4 th Respondent.
54. PW 2 did confirm that the temporary structure on the portion measuring 0.2 Hectares within the suit property claimed by the Applicant was built by him in the year 2013 after the perimeter fence had been completed.
55. PW 2 did insist that during his occupation and use of the 0.2 Hectares on the suit property, there had never been any interruptions and/or harassment from anyone including the 1 st to 4 th Respondents.
56. On re-examination, PW 2 did state that he had not been privy to the Agreements For Sale executed by the Applicant and did not know the people that were involved therein.
57. PW 2 did conclude his re-examination with the testimony that the Applicant was the one currently in occupation and use of the suit property up to the time of filing the present OS.
58. At the end of the re-examination, PW2 was discharged from the witness box and the Applicant did close his case thereafter.
1 ST AND 3 RD RESPONDENT’S TESTIMONIES & DOCUMENTARY EVIDENCE
59. The 1 st witness was the 1 st Respondent herein who was marked as DW 1.
60. The 1 st Respondent introduced herself as a resident of Uasin Gishu and a former employee of EATEC.
61. The 1 st Respondent did confirm to be familiar with the 2 nd , 3 rd and 4 th Respondents herein but not the Applicant.
62. The 1 st Respondent did inform the Court that she had prepared and executed two documents namely the Replying Affidavit dated 21.07.2025 and the Witness Statement dated 10.02.2026 of which she did adopt the same as her testimony in chief.
63. The 1 st Respondent did produce the following documents in support of her evidence in Chief; -
DW 1 EXHIBIT 1- A Copy of an Agreement for Sale dated 23.10.2001 between the 1 st Respondent and the 2 nd Respondent over a portion of 0.2 Hectares on the suit property at a consideration of Kenya Shillings Two Hundred and Twenty Thousand (KShs.220,000/-).
DW 1 EXHIBIT 2- A Copy of a Bank slip for Kenya Shillings One Hundred Thousand (KShs.100,000/-)
DW 1 EXHIBIT 3- A Copy of a Demand Letter dated 26.11.2021 from the 1 st Respondent to the 2 nd Respondent .
64. The 1 st Respondent did confirm that there was an Agreement For Sale dated 23.10.2001 with the 2 nd Respondent for the purchase of 0.2 Hectares of the suit property at a consideration of Kenya Shillings Two Hundred and Twenty Thousand (KShs.220,000/-).
65. Upon execution of the Agreement For Sale dated 23.10.2001, the 2 nd Respondent did pay a sum of Kenya Shillings One Hundred Thousand (KShs.100,000/-) to the 1 st Respondent leaving a balance of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000/-) which was to be cleared within Six Months from the date of execution.
66. Unfortunately, the 2 nd Respondent has failed and/or refused to clear the balance of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000/-) up to date.
67. The 1 st Respondent did state that the failure to process the title of the 0.2 Hectares in the name of the 2 nd Respondent was due to the breach of contract based on the Agreement For Sale dated 23.10.2001.
68. The 1 st Respondent did confirm being aware that the 2 nd Respondent had sold a portion of 0.1 Hectares to the person known as ABRAHAM NYONGESA MATAYO but was not aware that the second portion of 0.1 Hectares had also been sold to the Applicant herein.
69. The 1 st Respondent did testify that indeed the 2 nd Respondent had been given possession of the 0.2 Hectares on the suit property but any subsequent sale thereafter by the 2 nd Respondent was to be with the consent of the 1 st Respondent.
70. The 1 st Respondent did state that the two Agreements For Sale dated 21.10.2004 and 15.07.2005 were executed without her knowledge and/or consent to the Applicant herein.
71. The 1 st Respondent did inform the Court that around the year 2016, there was a meeting held at Comfy Hotel in Eldoret with a view of reaching an amicable settlement but the 2 nd Respondent failed to attend.
72. According to the 1 st Respondent, she did not have any objection to transfer the portion measuring 0.2 Hectares within the suit property now registered as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/917 to the Applicant herein as long as the 2 nd Respondent had cleared his obligations based on the Agreement For Sale dated 23.10.2001.
73. The 1 st Respondent did confirm that a Demand Letter dated 26.11.2021 was issued to the 2 nd Respondent but there was no response thereof.
74. In concluding her examination in chief, the 1 st Respondent did urge the Court to direct the 2 nd Respondent to clear the balance under the Agreement For Sale dated 23.10.2001 with interest and she would facilitate the transfer of the portion measuring 0.2 Hectares occupied by the Applicant herein.
75. On cross-examination by Counsel for the 2 nd respondent, the 1 st Respondent did confirm that an Agreement For Sale dated 23.10.2001 was executed with the 2 nd Respondent.
76. The 1 st Respondent did further admit that based on the Agreement For Sale dated 23.10.2001, the 2 nd Respondent was given permission and/or consent to occupy and use the portion measuring 0.2 Hectares on the suit property.
77. The 1 st Respondent did aver that the balance of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000/-) was to be cleared within Six Months from the date of execution but the mode of payment was not specified.
78. Be that as it may, the 1 st Respondent did reiterate that the 2 nd Respondent has never cleared the sum of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000) based on the Agreement For Sale dated 23.10.2001.
79. On being referred to PW 1 EXHIBIT 3, the 1 st Respondent did confirm that she was a signatory to the Agreement For Sale dated 21.02.2004 between the 2 nd Respondent and ABRAHAM NYONGESA MATAYO.
80. The 1 st Respondent did aver that at the time of consenting to the Agreement For Sale dated 21.02.2004, the 2 nd Respondent had undertaken to clear the balance of the Agreement For Sale dated 24.10.2001 on receipt of the purchase price but once again failed to do so.
81. The 1 st Respondent did disclose to the Court that sometime in the year 2022, she had filed a case against the 2 nd Respondent for the balance of the purchase price contained in the Agreement For Sale dated 24.10.2001 but the same was struck out due to principle of limitation of time.
82. The 1 st Respondent did inform the Court that currently, the suit property was registered in the names of the 1 st Respondent, 3 rd Respondent and the 4 th Respondent although the Applicant was in occupation of the same.
83. The 1 st Respondent did testify that she had never instituted any proceedings to evict the Applicant herein from the portion measuring 0.2 Hectares on the suit property.
84. On cross-examination by Counsel for the 4 th Respondent, the 1 st Respondent did confirm that the 4 th Respondent is one of the registered owners.
85. The 1 st Respondent did state that in the Agreement For Sale dated 21.02.2004, she was not the Vendor but only a witness.
86. The 1 st Respondent did admit that she did not inform the 3 rd and 4 th Respondents about the existence of the Agreement For Sale dated 21.02.2004.
87. The 1 st Respondent did aver that the portion of 0.2 Hectares which had been sold to the 2 nd Respondent has been fenced and there are structures therein although she could not positively indicate whose they were.
88. The 1 st Respondent did inform the Court that the Agreement For Sale dated 23.10.2001 with the 2 nd Respondent had never been rescinded by either herself and/or the 2 nd Respondent.
89. On cross-examination by Counsel for the Applicant, the 1 st Respondent did confirm witnessing the Agreement For Sale dated 21.02.2004.
90. On re-examination, the 1 st Respondent did reiterate that the balance of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000/-) from the 2 nd Respondent was to be paid within Six (6) months from the date of execution but has never been settled.
91. In conclusion, the 1 st Respondent was of the view that the 2 nd Respondent and/or any other person on the said portion was in occupation of the same on the basis of her consent to the 2 nd Respondent.
92. At the end this Re-examination, the 1 st Respondent was discharged and the 1 st and 3 rd Respondents did close their case thereafter.
2 ND RESPONDENT’S TESTIMONY & DOCUMENTARY EVIDENCE
93. The first witness to be called was the 2 nd Respondent who was marked as DW 2.
94. The 2 nd Respondent did inform the Court that he had prepared a Replying Affidavit dated 05.11.2025 of which she did adopt the same as his evidence in chief.
95. In support of his evidence in Chief, the 2 nd Respondent did produce the following document; -
DW 2 EXHIBIT 1- A COPY OF AN AFFIDAVIT DATED 24.06.2025 SWORN BY ABRAHAM NYONGESA MATAYO.
96. The 2 nd Respondent did admit that a Agreement For Sale dated 23.10.2001 was executed with the 1 st Respondent over a portion of 0.2 Hectares within the suit property for a consideration of Kenya Shillings Two Hundred and Twenty Thousand (KShs.220,000/-).
97. On execution of the Agreement For Sale dated 23.10.2001, a sum of Kenya Shillings One Hundred Thousand (KShs.100,000/-) was paid to the 1 st Respondent in cash and the balance of Kenya Shillings One Hundred and Twenty Thousand (KShs.120,000/-) was deposited in a Standard Bank account.
98. In essence, the 2 nd Respondent did deny owing the 1 st Respondent any monies under the Agreement For Sale dated 23.10.2001.
99. The 2 nd Respondent did further admit selling a portion of 0.1 Hectares out of the 0.2 Hectares to ABRAHAM NYONGESA MATAYO and the other 0.1 Hectares to the Applicant herein.
100. The 2 nd Respondent did inform the Court that the Applicant herein had been in occupation of the portion measuring 0.2 Hectares since the year 2004 when he handed over occupation of the same.
101. On cross-examination by counsel for the 1 st and 3 rd Respondents, the 2 nd Respondent did clarify that the sum of Kenya Shillings Two Hundred and Twenty Thousand (KShs.220,000/-) had been settled through three instalments which were One Hundred Thousand (KShs.100,000/-) on execution of the Agreement For Sale in cash.
102. The 2 nd Respondent did concede that there was proof of the Kenya Shillings One Hundred Thousand (KShs.100,000/-) made at the 1 st Respondent’s bank and/or the Kenya Shillings Twenty Thousand (KShs.20,000/-) made in cash.
103. He admitted that during both sales, to Abraham and the applicant respectively, he did not have the title to the suit property.
104. In other words, the 2 nd Respondent did admit that he had no proof that the full purchase price had been paid to the 1 st Respondent based on the Agreement dated 23.10.2001.
105. The 2 nd Respondent did testify that the Agreement For Sale with the Applicant was without the knowledge of the Applicant herein.
106. The 2 nd Respondent did aver that since he completed paying for the portion of 02. Hectares, the 1 st Respondent had never handed him the ownership documents and he had also never sued the 1 st Respondent for the same.
107. On cross-examination by Counsel for the 4 th Respondent, the 2 nd Respondent did state that he could not tell who the registered owners of the suit property were.
108. Consequently, the 2 nd Respondent only came to learn about the 4 th Respondent’s registration as the owner of the suit property upon being served with the present suit.
109. The 2 nd Respondent did contend that by the 1 st Respondent witnessing the Agreement For Sale dated 21.02.2004, she had confirmed that the full purchase price of the original 0.2 Hectares had been paid.
110. On cross-examination by counsel for the Applicant, the 2 nd Respondent did agree that he was granted possession and use of the portion measuring 0.2 Hectares within the suit property based on the Agreement For Sale dated 24.10.2001 with the 1 st Respondent.
111. The 2 nd Respondent did aver that the 1 st Respondent did not object to him selling the portion to third parties thereafter.
112. The 2 nd Respondent did therefore inform the Court that he did not have any interest in the portion measuring 0.2 Hectares within the suit property registered in the names of the 1 st , 3 rd and 4 th Respondents.
113. In any event, the portion of 0.2 Hectares within the suit property had been demarcated, fenced and was in occupation of the Applicant herein.
114. On re-examination, the 2 nd Respondent did confirm that the full purchase price under the Agreement dated 24.10.2001 with the 1 st Respondent had been fully settled.
115. The 2 nd Respondent did reiterate that he had sold his portion of 0.1 Hectares to the Applicant herein and the other portion of 0.1 Hectares to ABRAHAM NYONGESA MATAYO hence had no interest whatsoever in the suit property.
116. At the end of the re-examination, the 2 nd Respondent was discharged and his case closed thereafter.
4 TH RESPONDENT’S TESTIMONY & DOCUMENTARY EVIDENCE
117. The first witness was the 4 th Respondent who was marked as DW 3.
118. The 4 th Respondent did introduce himself as a resident of Uasin Gishu.
119. The 4 th Respondent then did inform the Court that he had prepared and filed a Replying Affidavit dated 14.11.2025 of which he did adopt the same as his evidence in chief.
120. The 4 th Respondent did testify that he was indeed one of the Registered owners of the suit property but had no interest in the same.
121. There was no cross-examination by the Applicants, the 1 st and 3 rd Respondents as well as the 2 nd Respondent.
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