1. Vide the Originating Summons dated 17/02/2023, the Applicant is seeking interalia, that the Applicant has become entitled to all of that land parcel known as E.Bukusu/N.Nalando/1520 measuring 0.6Ha by way of adverse possession and or by acquiring prescriptive rights thereon; that the Respondent do forthwith transfer the whole of the suit land to the Applicant and in default, the Deputy Registrar executes all the relevant documents for transfer of the land to the Applicant on behalf of the Respondent.
2. The suit is based on grounds on the face of the Originating Summons and supported by the affidavit of the Applicant dated 17/02/2023. She deposed that the Respondent is the legal representative of the estate of the late Nelson Nyongesa Wakabuya who is the registered owner of the suit land. That she has been in continuous, quiet, peaceful and exclusive occupation of the land since the year 1972 to date and that the deceased has never lived, used, possessed or occupied the suit land. She averred that she had extensively developed the land by erecting a permanent house, planting trees and food crops and that her family resides on the land. That the deceased’s title to the suit land had already been extinguished at the time of his death by the doctrine of adverse possession.
3. She stated that the Respondent had filed a succession cause in respect of the estate of the deceased and was in the process of causing the suit land to be transmitted to her without listing the Applicant as having interest in the suit land.
4. The Respondent filed a replying affidavit dated 14/12/2023 and averred that the deceased was her late husband and that he was registered as the proprietor of the suit land in 1972 while he was still a minor aged 3 years, after it was purchased by his aunt one Rosemary Nekoye. She averred that the deceased later changed his name from Jotham Nyongesa to Nelson Nyongesa Wakabuya. She averred that upon the registration of the deceased as the proprietor of the suit land, a restriction was placed on the land to restrict any dealings with the land until 1980. She averred that since the deceased’s aunt gave permission to the Applicant to take care of the land since the deceased was still a minor. She averred that upon attaining adulthood, the deceased secured employment as a long distance driver within the East African region and, owing to the nature of his work, resided elsewhere with the Respondent until his sudden demise in 2009, during which period he requested the Applicant to continue taking care of the suit land.
5. She stated that the deceased never sold then suit land, that the Applicant had no right to claim the suit land and that she wanted her evicted from the land.
6. The Applicant in response filed a further affidavit dated 01/02/2024 and denied that the deceased had changed his name from Jotham Nyongesa to Nelson Nyongesa Wakabuya. She averred that Jotham Nyongesa was actually the deceased’s biological father who sold the suit land to her deceased husband who paid the full purchase price to him and that they have been living in the suit land since. She stated that the deceased was not a long distance driver but a school driver at Bungoma Town High School until its closure and his eventual death. That the deceased was buried in his ancestral land where he was living with his family members as stated by the local area chief in a letter. She averred that she has lived on the suit land with her family since 1972 where she has also buried her husband and other family members.
7. When the suit came up for directions, the parties agreed to proceed with the hearing by way of viva voce evidence.
8. PW1 Joan Mary Kisiangani adopted her witness statements dated 18/09/2023 and 12/04/2024 as her evidence in chief. She testified that she is living on the suit land with her children and grandchildren since 09/03/1972. That the land was sold to them by Jotham together with a grass thatched house. She stated that the photographs she produced showed her house and that of her son and that she built the house after her husband died. She also stated that she buried her husband on the suit land. That since they went into occupation of the land in 1972, the Respondent only visited that land in 2016 claiming that it was his.
9. On cross examination, she stated that she was not a witness in the sale agreement and admitted that the sale agreement was for the sale of land parcel 272 and not the suit land. She stated that there was a typing error as they purchased the suit land and not land parcel 272. She stated that the Jotham who sold them the suit land was still alive. She stated that the national identity card number of the seller was not the same as that of Jotham Nyongesa. She stated that she knew Rosemary Nekoye who is a sister to Jotham Nyongesa who sold them the suit land. She denied that she was given consent to stay on the suit land until the registered owner who was a minor became of age.
10. On re-examination, she stated that land parcel No. 272 was the original land that was subdivided after succession to numerous resultant portions which include the suit land herein. She stated that Jotham Nyongesa in 1972 was not a minor but an adult when he sold them the suit land. She stated that Jotham Nyongesa and the deceased are not the same person and that there was no evidence that Jotham Nyongesa changed his name to Nelson Nyongesa.
11. She produced in evidence a copy of an official search, grant of letters of administration and a confirmation of grant as P-Exh 1, 2 and 3, a copy of a death certificate and a limited grant of letters of administration as PExh 4 and 5, a copy of an adjudication register marked as MFI 6, a copy of the title to the suit land as MFI 7, the sale agreement as PExh 8, an application for consent, a statutory declaration, letter of consent and an application for correction of name as MFI 9(a),(b),(c) and (d), a copy of the chiefs letter as MFI 10, and a bundle of photographs as PExh 11(a),(b), (c) and (d).
12. PW2, Raphael Chani Manyonge, the Applicants neighbor adopted his written statement dated 18/09/2023 as his evidence in chief. He testified that he witnessed an agreement for the sale of land between one Davis Matere Kisiangani and Jotham as indicated in the sale agreement produced by the Applicant as PExh 8.
13. On cross examination, he stated that the date of the agreement was not indicated but it happened in 1971. He stated that the agreement was for the sale of land parcel E.Bukusu/W.Alondo/272 and not the suit land but the original land was later subdivided into numerous parcels including the suit land. He stated that the sale of land parcel 272 was for Kshs. 650/=.
14. PW3 was Allan Babu, the Land Registrar Bungoma County. He produced a certified copy of the green card for land parcel 1520 as PEXH 9(a). He stated the first registered owner was Nyongesa Jotham (minor) who was registered on 20/06/1972 and a land certificate issued on 11/08/1972. A restriction was placed on 10/01/1973 and removed after the minor attained age of majority on 31/08/1993. He stated that on the same date, an entry was entered for correction of names proposing to change the name of Nyongesa Jotham to Nelson Nyongesa Wakubuya and a title deed was issued. He testified that the last entry was made on 20/07/2016 which was restriction placed by the then Land Registrar to the effect that no dealings until succession was done.
15. He noted that there were some footnotes by the Land Registrar noting that the matter of names between entry No. 1 and 5 be sorted out. He stated that entry No. 8, 9 and 10 were entered as result of succession but all the documents were rejected. He produced the adjudication register for the suit land as PExh 6, the land certificate for the suit land as PExh 7, an application to correct names in the register as PExh 9(a), a statutory declaration by the Nelson Nyongesa Wakabuya declaring that he was also known by the name Nyongesa Jotham as PExh 9(b), a letter of consent dated 28/07/1988 affirming that Nyongesa Jotham was also known as Nelson Nyongesa Wakabuya as PEXh 9(c).
16. On cross examination, he stated that Nelson Nyongesa Wakabuya is deceased. He stated that the person who signed the adjudication register on behalf of the land owner who was then a minor was one Rosemary Nekoye and that she was the guardian to the minor. That there was a change of name on 31/08/1993. He stated that he was not aware if Nyongesa Jotham and Nelson Nyongesa Wakabuya were the same person. He further stated that there was another family claiming the same property saying that Jotham Nyongesa is still alive.
17. PW4 Eliud Wafula Muyekho the Senior Chief Ziwa Location produced his letter dated 10/01/2023 as PExh No. 10. He stated that he knew the Applicant as she was the wife to the late Davis Kisiangani Matere since 1973 and that they have live on the suit land which is in his locality. On cross-examination, he stated that the Applicants husband bought the suit land from Jotham Wakabuya in 1971.
18. DW1 Asha Chepkemoi Mohamed adopted her written statements dated 14/12/2023 and 16/03/2024 as her evidence in chief. She testified that the suit land was registered in the name of her late husband when he was young. He stated that his name is Jotham Nyongesa and that the land was bought for him by his aunt Rosemary Nekoye. She stated that her husband died in the year 2009. She produced in evidence a copy of a certificate of death, limited grant of letters of administration and the confirmed grant, a copy of an adjudication register, a copy of a green card and official search for the suit land, a letter from the chief, a copy of a marriage certificate and a consent.
19. On cross-examination she stated that she got married to Nelson Nyongesa Wakabuya and that the marriage certificate indicates the name Hassan Wakabuya. She stated that they visited the suit land in 1998 and found people living on the land but they did not file suit to have them evicted. She stated that her husband was buried in land belonging to her father in law. She stated that the Applicant and her family are utilizing the suit land and that they have constructed their home on land neighboring the suit land. She stated that she did not know whether the Applicant’s husband was buried on the suit land.
20. On re-examination, she stated that Rosemary Nekoye died. That her late husband changed his name to Hassan so that he could marry her. That the suit land was registered in the name of Nyongesa Jotham and that he changed his name when he became of age to Nelson Nyongesa. She stated that the green card for the suit land does not show that it was a resultant subdivision of any land.
21. DW2 Ruth Nabututu Wakabuya adopted her written statement dated 14/12/2023. She stated that she was the mother of the Respondents late husband and that Rosemary Nekoye was the deceased’s aunt. She stated that the aunt bought the deceased land and since he was a minor, it was left in the custody of the Applicant. She testified that Rosemary Nekoye died. That the land was not sold to the Applicant but she was only asked to take care of it.
22. On cross examination, she stated that her husband was Jotham Wakabuya and her son Nelson Nyongesa. That they left the suit land in 1972 and then the Applicant went into the land and started occupying the house they were living in. She was supposed to take care of the land. On re-examination, she stated that the deceased was known as Jotham Nyongesa when he was young, he changed his name to Nelson Nyongesa when he was baptized and later to Hassan Wakabuya when he got married. She stated that her husband was still alive but did not avail himself to testify as a witness.
23. The parties agreed to wrap up the evidence by way of written submissions. The Applicant filed submissions dated 16/12/2025 through the firm of M/S AK Advocates LLP. She submitted that she had demonstrated that she had been in open, continuous, peaceful, exclusive possession of the suit land for more than 12 years and therefore she had become entitled to it by way of adverse possession. She averred that the allegation that she was left on the suit land as a caretaker was not supported by any evidence nor was the time frame. She submitted that having satisfied the ingredients of adverse possession, she was entitled to be registered as the proprietor of the suit land.
24. The Respondent filed submissions dated 04/02/2026 through the firm of Onyando and Company Advocates. She submitted that from the sale agreement relied on by the Applicant dated 26/05/1971, it indicated that the land purchased by the deceased was land parcel No. 272 and not the suit land herein and that there was no evidence adduced connecting the two land parcels. She submitted that the person who sold the suit land to the Applicant was said to be alive but he was not called as a witness. She submitted further that the Applicant failed to produce evidence to prove that the person registered in the year 1972 had capacity to transact in order to the sell the suit land then. She contended that the Applicant was occupying the suit land with the permission of the deceased’s aunt who purchased the suit land for him and therefore her possession cannot be said to be adverse. They cited the case of Mtana Lewa v Kahindi Ngala Mwagandi 2015(Eklr) to support that position.
25. Having considered the pleadings, the evidence adduced by the parties and the submissions filed herein, the issue falling for determination is whether the Applicant has proved her claim for adverse possession over land parcel No. E.Bukusu/N.Nalando/1520.
26. It is not in dispute that the Applicant has been in occupation of the suit land for a long period of time. The Applicant contends that her occupation commenced in the year 1972 after her late husband allegedly purchased the suit land from one Jotham Nyongesa, while the Respondent’s case is that the Applicant was merely permitted to occupy and take care of the land on behalf of the deceased who was then a minor.
27. The law relating to adverse possession is now settled. For a claim of adverse possession to succeed, a claimant must prove open, continuous, peaceful and exclusive possession of land for a period of at least twelve years, without the permission of the registered owner and in a manner inconsistent with the rights of the owner. In the case of Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR, the Court of Appeal described adverse possession as:
“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”
28. Similarly in the case of Samuel Kihamba v Mary Mbaisi [2015] KECA 853 (KLR) the court stated that:
“Strictly, for one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is, without force, without secrecy, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land.”
29. Tin this case, the Applicant relied on a sale agreement dated 26/05/1971 to support her contention that her occupation of the suit land arose from a purchase. However, upon scrutiny, the court notes that the said agreement relates to the sale of land parcel No. E.Bukusu/W.Nalondo/272 and not the suit land herein being E.Bukusu/N.Nalando/1520. Although the Applicant attempted to explain that parcel No. 272 was later subdivided giving rise to the suit land, no documentary evidence was produced to demonstrate the nexus between parcel No. 272 and the suit land. In particular, no mutation forms, register extracts or official records were tendered to establish that the suit land was a resultant subdivision of parcel No. 272.
30. Further, the evidence adduced by the Land Registrar showed that the suit land was first registered in the name of Nyongesa Jotham as a minor on 20/06/1972 and that a restriction had been placed against the title until attainment of majority age. The register further shows that the name was later corrected to Nelson Nyongesa Wakabuya. The court is satisfied from the evidence on record, including the statutory declaration and consent produced by PW3, that Nyongesa Jotham and Nelson Nyongesa Wakabuya referred to one and the same person.
31. It therefore follows that at the time the alleged sale agreement was executed in 1971, the registered proprietor of the suit land lacked legal capacity to transact, he being a minor. Consequently, the alleged agreement could not confer any proprietary rights over the suit land to the Applicant or her late husband. The court therefore finds that the Applicant failed to prove that she entered the suit land pursuant to a valid sale transaction relating to the suit land herein.
32. The court further notes that the Respondent’s evidence, corroborated by DW2, was that the Applicant was permitted to remain on the suit land by Rosemary Nekoye, the deceased’s aunt and guardian, so as to take care of the land while the deceased was still a minor. The Applicant did not adduce cogent evidence to rebut that assertion. Indeed, where occupation is founded on consent or permission of the owner, such occupation cannot be adverse. In the case of Benjamin Kamau Murima & Others v Gladys Njeri, - Civil Appeal No. 213 of 1996 as cited in Titus Kigoro Munyi v Peter Mburu Kimani [2015] KECA 952 (KLR) it was held that:
“In determining whether or not the nature of the actual possession of the land in question is adverse, one needs only to look at the position of the occupier and if it is found that his occupation is derived from the proprietor of the land in form of permission or agreement or grant, then such occupation is not adverse, but if it is not so derived then it is adverse”.
33. In the present case, no evidence was led to demonstrate when, if at all, the Applicant’s occupation ceased being permissive and became hostile to the title of the registered proprietor. The burden lay upon the Applicant to prove that her occupation was adverse to the interests of the registered proprietor, which burden was not discharged.
34. In the premises, this court finds that the Applicant has failed to prove her claim for adverse possession on a balance of probabilities. The suit is therefore dismissed with costs to the Respondent.
DATED, DELIVERED AND SIGNED AT EMBU THIS 21ST DAY OF MAY, 2026.
HON. E.C CHERONO
ELC JUDGE, EMBU
In the presence of;
1. Mr Juma Waswa holding brief Akenga for the Appellant
2. Mr Onyando for the Respondent
3. Ruth – C/A
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