ELLY ONYANGO GWAKO VS DANIEL NYAYIEYI ATINDA

BRIEF FACTS
The Plaintiff commenced this suit vide an Originating Summons dated 30th June, 2021. He sought the following questions to be settled:
a) Whether the Applicant has had uninterrupted, open continuous actual possession, occupation and use of the 0.4Ha portion of L.R South Sakwa/Kogelo/355 measuring 3.2Ha for over 12 years.
b) The Honourable court be pleased to grant an order of perpetual injunction restraining the Respondent herein, his agents, servants, representatives, assigns and relatives from interfering with the Applicant’s peaceful possession and actual occupation of LR No. South Sakwa/Kogelo/355 in any way whatsoever.
c) Whether the Applicant is entitled to be registered as the proprietor of 0.04Ha portion of LR No. South Sakwa/Kogelo/355 on account of adverse possession thereof.
d) The Deputy Registrar and/or the Executive Officer of the Honourable High Court be ordered/directed to execute the transfer instruments and all attendant documents to facilitate the transfer and registration of the 0.4Ha of L.R No. South Sakwa/Kogelo/355 in favour of the Applicant.
e) Issue further orders that the Honourable Court may deem necessary and fit.
f) Who shall pay the costs of this suit.
Response
The Defendant filed a Replying Affidavit dated 21st July, 2021 and the Plaintiff filed a further affidavit dated 25th January, 2023 in response.
Directions were taken and the matter proceeded as though commenced by way of Plaint. It was heard viva voce. The Plaintiff and Defendant filed their witness statements and list of documents dated 20th February, 2023 and 28th October, 2023 respectively. 
Plaintiffs case
Elly Onyango Gwako testified as PW1 She adopted her witness statement filed on 24th February, 2023, as her evidence in-chief. It was her testimony that she purchased 0.4Ha of the suit property South Sakwa/Kogelo/365 in 1997. She produced documents which were marked as PExhibits 1, 2 and 3 as the tribunal ruling, appeal decision and photographs of the suit land respectively. She testified that she has been in occupation of the suit land from 1987 where she has planted sugarcane and maize. She further testified that there was another case involving the Defendant and herself at the tribunal where a ruling was delivered and she appealed the same. It was her testimony that the tribunal found that she had been on the suit land for 23 years and the Defendant never complained. She urged the court to issue her with the title for the suit land.
Upon cross examination, she admitted that there were wrangles between herself and the Defendant. She stated that the tribunal case was in 2009 and the photos PExhibit 3 were dated 28th May, 2021. She added that she had been using the land before and that the photos do not capture the parcel number. She stated that she was not related to the Defendant but added that he was her neighbor. PW1 admitted that she had not produced a search certificate or green card to confirm that the Defendant was the owner of the suit land. She also admitted that she had not produced a surveyor’s report to ascertain that she lives on the acreage she claimed.
Upon reexamination, she confirmed that the pictures were taken from the land so as to support her case. She added that she knew the owner of the land as confirmed in her replying affidavit.
That marked the close of the Plaintiff’s case.
Defence case
Daniel Nyayiyi Atinda testified as DW1 where his witness statement dated 28th October, 2023 was adopted as his evidence in chief. He testified that the Plaintiff was his cousin and that his father was Gwako Musuli. He further testified that his father was Atinda Musili and thus they were related. It was his testimony that he was the registered owner of the suit land and that he was in occupation of the land. He testified that the Plaintiff never occupied the suit land and that he never entered into a sale agreement with him.
Upon cross examination, he confirmed that he became the owner of the suit land in 1985. He stated that he had a title deed in his name which was registered on 8th July, 1985. He denied having sold the land to the Plaintiff but stated that he had leased the same to her. He admitted that he had no lease agreement. He added that he never made any report to the police regarding the sale being fraudulent. He stated that he was currently in occupation of the suit land.
That marked the close of the Defence case.  
Submissions
Counsel for the Plaintiff filed his submissions dated 27th November, 2023 where he submits that the Plaintiff purchased a portion of the suit land measuring 0.4Ha from the Defendant vide the sale agreement dated 2nd March, 1987. He submits that the sale agreement confirmed that the Plaintiff paid Kshs. 6,000/= as the first installment before the senior chief after which she immediately took possession. He submits that the Plaintiff has been in open, uninterrupted, continuous and actual occupation of the suit land for over 12 years. It was counsel’s submission that the parcel was never transferred to the Plaintiff and a dispute ensued culminating to a case filed on 6th April, 2009 before the Awendo Land Disputes Tribunal. He submits that the Plaintiff appealed against the tribunal’s decision before the Nyanza Land Disputes Tribunal Committee vide Claim No. 091/2009. He further submits that the appeal was determined where the tribunal’s ruling was quashed and the Defendant directed to transfer 0.4Ha to the Plaintiff. 
Counsel submits that the Plaintiff had been in occupation and use of the land for over 23 years without any complaint from the Defendant. He added that the Defendant disrupted the Plaintiff’s peaceful occupation in 2009 after 22 years since she took possession. It was counsel’s submission that the Defendant admitted that he was the registered owner of the suit land since 1985. He submits that the Plaintiff proved her case on a balance of probabilities to warrant issuance of the orders sought. Counsel relied on the Court of Appeal case in Kisumu Civil Appeal No. 110 of 2016, Richard Wefwafwa Songoi V Ben Munyifwa Songoi [2020] eKLR that highlighted the principles in an adverse possession claim. He submits that the Plaintiff satisfied all the elements of adverse possession since it was undisputed that she took immediate possession in 1987 and has planted sugarcane and maize. He further submits that the occupation has been continuous and uninterrupted with the Defendant’s knowledge. He added that the occupation had been for over 23 years as evidenced from the tribunal’s ruling. It was counsel’s submission that there was no evidence that the Defendant was in occupation of the land or that he had evicted the Plaintiff. He also submits that the claim that the land was leased was not substantiated. Counsel submits that the tribunal’s ruling confirmed that there was a sale agreement dated 2nd March, 1987 and admission of receipt of the purchase price by the Defendant. He submits that the adoption of the tribunal’s ruling did not happen since the Land Dispute Tribunal Act was repealed thus it was agreed that the alleged Kisii Court of Appeal No. 253 of 2010 was irrelevant and a non-issue before hearing commenced. Counsel submits that the prescriptive rights of the Plaintiff under the realm of adverse possession crystalized.
Analysis and Determination
Having reviewed the Originating Summons, Replying Affidavit, the oral testimony of the parties and the written submissions filed by the Plaintiff, the sole issue for determination is whether the Plaintiff has established the requisite ingredients to warrant declaration of adverse possession thereby proved her case to the required standard. Attendant to it is who to bear the costs of the suit.
The Plaintiff seeks a declaration that she has acquired the suit property herein by way of adverse possession for reason that he has had possession of the land for 23 years. He claims to have acquired 0.4ha of the suit property from the Defendant vide a sale agreement dated 2nd March, 1987. It was his case that the Defendant was aware of the occupation which was open, uninterrupted and continuous. The Defendant on the other had contends that he had leased the land to the Plaintiff. He however admitted that he did not have a lease to prove the same.    
Section 7 of the Limitation of Actions Act provides that:
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person”.
In the case of Public Trustee V Wanduru Ndegwa [1984] KECA 72 (KLR) the court held as follows:
“...adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession of the property because from this date, the true owner is dispossessed off possession. A purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run.”
It is a fact that there was a sale agreement dated 2nd March, 1987 between the Defendant and Plaintiff touching on the suit land for Kshs. 6,000/=. It is also a fact the purchase price was paid in full and received by the Defendant. It is therefore this court’s view that the 12-year period of limitation started running from 2nd March, 1987 when the purchase price was fully paid and the Plaintiff started living on the land without the permission of the Defendant.
It is trite law that in any claim for adverse possession, the claimant is required to annex a copy of the certificate of title, which is necessary in identifying the owner of the property being claimed. Order 37 Rule 7 of the Civil Procedure Rules provides that:-
1) An application under section 38 of the Limitation of Actions Act (Cap. 22) shall be made by originating summons.
2) The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.
3) The court shall direct on whom and in what manner the summons shall be served.”
In the case of Abdirashid Adan Hassan V The Estate of W H E Edgley [2022] eKLR the court held that:
“… the effect under Section 17 of the Limitation of Actions Act would be to extinguish the title, therefore there is need for reference or production of a copy of a title. A claim for adverse possession must be brought against the registered proprietor since it seeks a declaration that the proprietor’s title has been extinguished by prescription. It follows therefore that the proceedings must be in respect of the correct parcel of land and whose ownership is verified by an annexed extract of title in terms of Order 37 rule 7 of the Civil Procedure Rules. In the instant case, the Applicant only adduced a deed plan as Applicant’s Exhibit 2 which is inconclusive proof of ownership of the property. In determining the issue of adverse possession, this Court cannot extinguish an ‘non-existence and unknown title.”
Further, in the case of Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] KECA 248 (KLR), the court held that:
“A claim of adverse possession can only be maintained against a registered owner”
It is my opinion that in as much as the Plaintiff stayed on the suit land for over 12 years, it was necessary for her to attach an extract of title in the Defendant’s name. The Plaintiff contends that the Defendant did not oppose that the suit land belonged to him. She added that the ruling by the tribunal also confirmed that the suit land belonged to the Defendant. It is this courts view that it is not at all times that the Applicant may obtain the certificate of title and the courts have in the recent times accepted certificates of search or even green cards to the land since they serve the same purpose.
In the instant case, in as much as the tribunal confirmed that the suit land belonged to the Defendant, it is trite law that the tribunal did not have the requisite jurisdiction to determine ownership of the suit land. It is this court’s view that at this juncture, there was no evidence to prove ownership of the suit land. In addition, a sale agreement is not proof of ownership of land and thus the Plaintiff having failed to attach an extract of title or even a search or green card that could identify the registered owner of the suit land, the claim is bound to fail.
Consequently, I find that while the Plaintiff has proved on a balance of probabilities the ingredients of adverse possession to warrant her being awarded the land in question, she failed to comply with the law in bringing the suit as required, in terms of Order 37 Rule 7 of the Civil Procedure Rules. Thus, I trike out the suit. He may move the Court appropriately. The fact of striking out her suit does not entitle the Defendant to circumvent Section 7 of the Limitation of Actions Act.
Each party to bear its own costs.
It is so ordered.
Judgment dated, signed and delivered via the Teams Platform this 27th day of March 2025.