1. The Applicant filed originating summons dated 20/03/2024 seeking the determination of whether the applicant has acquired adverse possession over land parcels NORTH MALAKISI/SOUTH WAMONO/1951–1955, being subdivisions of NORTH MALAKISI/SOUTH WAMONO/421, and whether the deceased owner’s title was extinguished after twelve years from the applicant’s entry in 1976 or upon the lapse of the 1976 sale agreement. It also seeks declarations that the respondents, including those who obtained the land through succession, subdivision, and subsequent transfers, held the land in trust for the applicant and therefore had no valid title to convey. The applicant further seeks cancellation of the subdivisions and mutations, reversion of the land to its original title, vesting of legal rights in the applicant, transfer of the entire 18-acre parcel to the applicant (with authority for the Court Administrator to execute necessary documents), dispensation with production of original titles, and an order for costs against the respondents.
2. The summons were supported by the affidavit of the Applicant sworn on an even date where he deposed that he purchased of North Malakisi/South Wamono/421 from Mishaka Kusimba s/o Bera-dcd in 1976 and settled therein. That prior to the demise of the said seller, the Respondents respected the Applicants said occupation. That the 1st respondent in the year 2021 applied for letters of administration for the estate of the deceased which led to the subdivision of North Malakisi/South Wamono/421 into five portions i.e North Malakisi/South Wamono/1951 to 1955(hereinafter referred to as “the suit properties”) which were transferred to the 1st to 5th Respondents respectively and subsequently all the five parcels were transferred to the 6th Respondent.
3. The Applicant argued that he has been in occupation of the land in issue for over 12 years and has acquired the same by way of adverse possession. He argued that his agreement with the deceased was voided for failure to attend the Land Control Board and as a result, the titles held by the 6thRespondents are held in trust for him.
4. In opposition the 1st Respondent filed a replying affidavit sworn on 28/03/2024 wherein he stated that the Applicant resides in an adjacent land to the suit properties which the two parcels are subdivided by a public road. That the Applicant filed an objection to issuance of a grant in his favour in Sirisia P&A 26/2021 which was determined and dismissed by the court. That the Applicant appealed and the said appeal vide Bungoma HCCA E047 of 2024 which is still pending in court. That there is also another case being Sirisia SPM ELC E001/2024 wherein the Applicants son has been sued or trespassing upon the suit properties. It was deposed that the applicant has in all the abovenamed cased relied on different sale agreements to advance his claim. They argued that if at all the Applicant entered the land by virtue of the contested sale agreements, the same was with the consent of the seller and could not be adverse for the purposes of his claim.
5. The 6th Respondent filed a replying affidavit sworn on 27/03/2024 wherein he reiterated the 1st Respondents statements and added that upon purchasing the suit properties, he took vacant possession thereof where he has a maize plantation which is due for harvesting.
6. The suit proceeded by way of viva voce evidence.
7. PW1 Francis Chemaket Chesebe adopted his supporting affidavit sworn on 20/03/2024 as his evidence in chief and produced into evidence the annexures thereto PExhibit 1,2,3 (a),(b), (c), (d) & (e). n cross examination he testified that he purchased 11 portions of North Malakisi/South Wamono/421 at Kshs.1,000/= each thus Kshs. 16,000/= where he paid a down payment of Kshs.4550/=. He testified that he resides in land parcel no. 231 after the suit properties were fenced forcefully by the 6th Respondent. He testified that he buried his wife and twin children in the land.
8. PW2 Meshack Fwamba Bwire adopted his witness statement dated 10/09/2024 as his evidence in chief. He testified that the Applicant did purchase the suit properties in the year 1976 but was not aware of the details of the purchase. It was his evidence that the Applicant resides in another piece of land i.e parcel no.248 and not the suit properties.
9. PW3 John Barasa Omekede and PW4 George Barasa adopted their witness statement dated 10/09/2024 as their evidence in chief. They proceeded to reiterate the evidence by PW1 and 2 above and added that the children of the Applicant reside in the suit land after some unknown people invaded the suit properties and destroyed the Applicants house.
10. DW1 Malala arap Chepkoy adopted the statements in his replying affidavit sworn on 28/03/2024 as his evidence in chief and produced the annexures thereto as RExhibit 1 (a)& (b), 2,3 &4 respectively. In cross examination he denied that the Applicant has been in occupation of the suit properties as alleged and stated that he does not know the indivinduals listed as witnesses of the agreement produced by the Applicant. That when he visited the suit properties in 2021 before the succession proceedings he found a temporary hut but nobody was in the premises.
11. DW2 Fred Moin Siyoi adopted the statements in his replying affidavit sworn on 27/03/2024 and witness statement dated 05/07/2025 as his evidence in chief and produced the annexures thereto as RExhibit 6 (a)& (b), 7,&8 respectively. He stated that he did due diligence before purchasing the land and only noted the presence of a hut in the suit properties and that after his purchase he took occupation of the land.
Submissions by parties.
12. Directions were taken for parties to file submissions.
13. The Applicant filed submissions dated 17/11/2025 where he collectively argued that the plaintiff has met the legal requirements for adverse possession, namely peaceful, open and uninterrupted occupation without force, secrecy, or permission, as encapsulated in the maxim nec vi, nec clam, nec precario and supported by sections 7, 13, 16, 17 and 38 of the Limitation of Actions Act. The plaintiff asserts continuous possession of the land since 1976, demonstrated by establishing his home there and burying close family members on the property, showing clear intention to possess. He argued that the Respondents, including the original owner’s successors and the subsequent purchaser, never took steps to assert their title or interrupt possession, and changes in ownership did not stop time from running under the principles in Githu v Ndeete(1984)eKLR
14. He argued that although the initial 1976 sale agreement became void for lack of Land Control Board consent, this only rendered the Applicant a trespasser whose possession thereafter became adverse. It was his submission that evidence, including a suit filed by the 6th defendant to evict the Applicant’s son, confirms the Applicant’a actual and constructive possession. The submissions therefore contend that adverse possession crystallized well beyond the required twelve years, and the Respondents hold no better title than that extinguished by operation of law.
15. The Respondents filed their submissions dated 26/11/2025 where they submitted that the Applicant initially entered the suit properties as a purchaser, as evidenced by the sale agreements produced, and that those agreements indicate an outstanding balance. Consequently, it was argued that any claim for adverse possession if available at all could only begin to run upon full payment of the purchase price. Reliance was placed in the case of Peter Mbiri Michuki vs. Samuel Mugo Michuki (2014) eKLR. It was equally argued that the suit was res judicata as it related to other cases wherein the Applicant has asserted his rights and the issue has been decided and put to rest.
Analysis and determination.
16. Having read and considered the pleadings, the evidence adduced during the hearing, the written submissions and all the material placed before the court, the following issues are fall for determination;
a) Whether the Applicant has proven a claim by way of adverse possession.
b) Who meets the cost of the suit?
17. The Applicant contends that he is entitled to the suit properties, originally forming part of land parcel North Malakisi/South Wamono/421, which he avers to have purchased from Mishaka Kusimba s/o Bera (deceased) in 1976. He states that the said land later devolved to the estate of the alleged vendor, namely the 1st to 5th Respondents, who subsequently transferred and ultimately sold it to the 6th Respondent. The Applicant maintains that he has been in continuous occupation of the portion since 1976.
18. The Respondents, however, dispute his claim, asserting that the agreements relied upon demonstrate that his alleged adverse possession began with the permission of the vendor pursuant to a sale agreement under which the consideration was never fully paid. Consequently, they argue that such possession could not be adverse to the registered owner. In response, the Applicant maintains that the sale became void for failure to obtain consent of the Land Control Board. The Respondents further contend that the present suit is res judicata.
19. The principles of adverse possession as outlined by the Court of Appeal in Gabriel Mbui v Mukindia Maranya [1993] eKLR the Court adopted the definition of adverse possession in the following terms:“…it is possible to define “adverse possession” more fully, as the nonpermissive physical control over land coupled with the intention of doing so, by a stranger having actual occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owners enjoyment of the land for the purposes for which the owner intended to use it.”
20. Kuloba J’s (as he then was) in the above case refers to the essence of adverse possession with precision where he states that… “In my view, at its core, adverse possession is not a matter of mere presence but of possession that is deliberate, exclusive, and hostile to the rights of the true owner. It demands an unambiguous assertion of dominion; possession that is neither covert nor permissive, but one that stands in open defiance of the owner’s title. Without this essential conflict between the possessor and the rightful owner, there can be no adverse possession, for the law does not reward mere occupation but the usurpation of ownership itself.”
21. In evaluating the Applicant’s claim for adverse possession, the court has carefully considered the material placed before it, including the agreement said to have been executed in 1976 between the Applicant and the alleged vendor, Mishaka Kusimba s/o Bera (deceased). The Applicant produced this document as the foundational basis of his occupation. Notably, the agreement by the Applicant’s own admission recorded that a balance of Kshs. 2,500 remained unpaid. This fact is not merely incidental but is central to the question whether time could accrue for purposes of adverse possession. It is settled law that where a claimant first enters land on the basis of a sale agreement, the character of such occupation is permissive and does not become adverse until the final instalment of the purchase price has been paid. Time begins to run only once the purchaser is entitled to demand transfer. In the present case, the Applicant has provided no proof that the stated balance was ever settled. Consequently, the Applicant’s possession cannot be said to have crystallized into adverse possession at any point in time.
22. In this regard I am guided by the case of Wambugu -vs- Njuguna (1983) KLR 173 where the Court interalia held thus:-
“Where a claimant pleads the right to land under an agreement and in the alternative seeks an order on subsequent adverse possession, the rule is: the claimant’s possession is deemed to have become adverse to that of the owner after payment of the last installment of the purchase price. The claimant will succeed under adverse possession upon occupation for at least twelve years after such payment”.
23. The Applicant has argued that notwithstanding the unpaid balance, the sale agreement became void due to the failure to obtain Land Control Board consent. He contends that such failure automatically rendered the transaction void, thereby transforming his occupation into adverse possession. This court finds that proposition untenable. A purchaser who has not fulfilled the contractual consideration cannot logically expect the vendor to initiate or obtain Land Control Board consent for a transfer. It would be unreasonable to assert that the vendor was under an obligation to take transfer related steps while the purchaser remained in breach of payment obligations. The Applicant did not demonstrate how a transaction, which was incomplete on his part, could have advanced to the stage at which Land Control Board consent was even capable of being sought. His reliance on the absence of consent is therefore unpersuasive.
24. Beyond the issue of the sale agreement, the Applicant’s case fails for lack of evidence demonstrating the nature, continuity, and exclusivity of his occupation. A claim for adverse possession is anchored on factual possession that is open, continuous, uninterrupted, hostile to the title of the true owner, and exercised as if the claimant were the owner. As the party asserting these facts, the Applicant bears the legal burden of proof in accordance with sections 107 to 109 of the Evidence Act. He must establish his claim on a balance of probabilities. It is not enough to merely assert possession; the evidentiary burden requires proof of acts of possession that are clear, unequivocal, and referable only to the Applicant. The evidence before the court does not meet that threshold. General statements of occupation, unsupported by tangible evidence, cannot sustain a claim of such gravity.
25. The court further notes that reliance was placed on a trespass suit allegedly filed by the 6th Respondent against the Applicant’s son. However, the said son is not a party to these proceedings, nor does the suit constitute proof of the Applicant’s own occupation of the suit land. A trespass claim against a third party, without more, cannot establish adverse possession on behalf of the Applicant. The Applicant has failed to demonstrate how that said suit evidences his own open and hostile possession of the land for the statutory period.
26. For the foregoing reasons, the court finds that the Applicant has not proved, on a balance of probabilities, that he has been in adverse possession of the suit properties. His entry onto the land was premised on an unfulfilled sale agreement, his occupation was not shown to have assumed the character required for adverse possession, and he failed to discharge the requisite evidentiary burden.
27. Consequently, the claim for adverse possession as pleaded in the originating summons dated 20/03/2024 is without merit and the same is hereby dismissed with costs to the Respondents.
28. Orders accordingly.
DATED SIGNED and DELIVERED VIRTUALLY this 05th day of February, 2026.
……………………………..
HON.E.C CHERONO
ELC JUDGE
In the presence of;
1.M/S Wakasa for the Defendant/Respondent.
2.Plaintiff/Applicant/Advocate-absent.
3. Diana C/A.
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