REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ELC NO. 763 OF 2012 (OS)
(FORMERLY ELD HCCC NO. 170 OF 2011 (OS))
JOHN ARUSEI SINGOEI…….…….………….…….……..……PLAINTIFF
VERSUS
ELISHA KIPKORIR BUSIENEI…….…….……………...1 ST DEFENDANT
SIMON KIPKERING MUTAI…………………………… 2 ND DEFENDANT
JOSEPH KIPTABUT CHEMJOR……………………….. 3 RD DEFENDANT
MICHAEL K. KIBENDO………………………………… 4 TH DEFENDANT
MARY RUTO……………………………………………… 5 TH DEFENDANT
RUTH NYAMBURA……………………………………… 6 TH DEFENDANT
JUDGMENT
Introduction
1. By an amended originating summons dated 31 st August, 2020, the Plaintiff sought the following reliefs from the Defendants:
1) John Arusei Singoei be registered as the proprietor of land parcel number Eldoret Municipality Block 14/68 having acquired ownership and/or title thereto through adverse possession and that the registration of the 1 st , 2 nd and 6 th Defendants as the proprietors of the suit land was illegal and fraudulent and the titles of the Defendants be declared as having been extinguished by operation of law.
2) A declaration that the 6 th Defendant trespassed into the suit land and the Plaintiff is entitled to general damages for trespass.
3) The 6 th Defendant do execute all the necessary documents to facilitate the registration of Eldoret Municipality Block 14/68 in the name of the Plaintiff within 30 days from the date of judgment free from any encumbrances.
4) In default of 3 above, the Deputy Registrar of this honourable court be at liberty to execute all the necessary documents on behalf of the 6 th Defendant.
5) A permanent injunction be issued restraining the Defendants jointly and severally and either by themselves, their agents, servants and/or employees from trespassing, wasting, selling, alienating, subdividing, transferring and/or in any way deal with that parcel of land known as Eldoret Municipality Block 14/68.
6) The amended summons herein be served upon Elisha Kipkorir Busienei, Simon Kipkering Mutai, Joseph Kiptabut Chemjor, Michael Kibeindo, Mary Ruto and Paul Gicheru.
7) Costs of this originating summons be provided for.
Background
2. The subject matter of this suit is a property known as Eldoret Municipality Block 14/68 measuring 0.2768 Ha (Suit Property). The suit property was registered in the names of Joseph Kiptabut Chemjor, Esiaha Kibendo and Mary Ruto (as administratrix of the estate of Salil Arap Ruto) as tenants in common in equal shares. The three were registered as tenants in common in equal share on 27 th November, 1979. They were issued with certificate of lease on 26 th November, 1984.
Plaintiff’s Case
3. The Plaintiff’s case is that he purchased the suit property in 1987 from one of the partners at a consideration of Kshs.60,000/=. He applied for approvals of building plans from Municipal Council of Eldoret which approvals were granted. He moved into the suit property and constructed a servant quarter where he moved into one of the rooms and rented out the other rooms. In the year 2010 he approached the registered owners of the suit property who signed a transfer for him. When he took the transfer for registration, he discovered that the 1 st and 2 nd Defendants had been registered s owners of the suit property on 23 rd February, 2011.
4. The Plaintiff filed a suit against the 1 st and 5 th Defendants. As the suit progressed in court, he discovered that the ownership of the suit property had changed from the 1 st and 2 nd Defendants to the 6 th Defendant. The Plaintiff’s contention is that the registration of the suit property in the names of the 1 st and 2 nd Defendants and the subsequent transfer to the 6 th Defendant was fraudulent.
5. He stated that Paul Nyang’ute Obiero who sold the suit property to the 1 st and 2 nd Defendants had purportedly purchased the same from one of the partners and that the signature appearing on the sale agreement was not that of the partner who is purported to have sold the land to the said Paul Nyang’ute Obiero. The said Obiero had never occupied the suit property.
6. He further stated that the 6 th Defendant was acting for the 1 st and 2 nd Defendants and that he was aware that there were active investigations into the acquisition of the suit property by the Directorate of Criminal Investigations, yet he went ahead to purchase the suit property from the 1 st and 2 nd Defendants who had no good title to pass to him.
7. The Plaintiff stated that he made payment of the purchase price to the firm of A. G. N. Kamau advocate who was the lawyer of the registered proprietors. He stated that he was in possession of the suit property until his tenant was evicted in August, 2011.
8. The Plaintiff stated that he has been continuously in occupation of the suit property and that the title to the original owners had been extinguished and that the fraudulent title obtained by the 1 st and 2 nd Defendants which was transferred to the 6 th Defendant cannot stand and should be transferred to him on account of adverse possession.
The 1 st and 2 nd Defendants’ Case
9. The Defendants stated that as at the time the Plaintiff filed this suit, they were the registered owners of the suit property. Their names were entered in the register on 23 rd February, 2011 and a certificate of lease issued to them on the same day. They stated that they purchased the suit property from Paul Nyang’ute Obiero on 30 th October, 2009 at a consideration of Kshs.1,200,000/=. The said Obiero had purchased the land from Masai Kibendo Chemurgoi alias Esiaha Kibendo who was one of the registered owners of the suit property.
10. The Defendants further stated that upon Obiero selling the suit property to them, he requested the owners to make a direct transfer to them which they did. Paul Nyang’ute Obiero surrendered the original certificate of lease to them. They went to the Lands Office where they lodged the transfer and the suit property was transferred to them. They stated that they carried out a search which showed that the suit property was registered in the name of three partners who are the ones who executed a transfer in their favour.
11. They further stated that the Plaintiff had made a complaint against them to the police. They were summoned and charged but upon further investigations they were found innocent and the office of the Director of Public Prosecutions recommended the withdrawal of the charges against them under Section 87 A of the Criminal Procedure Code.
12. The Defendants asked to be shown the documents upon which the Plaintiff made a complaint against them. One of the documents was a letter written by one Chepkochoi A. Murrey who purported to sell the suit property to the Plaintiff. They stated that the said Chepkochoi A. Murrey was not one of the owners of the suit property. They stated that the 4 th Defendant who is the administrator of the estate of Esiaha Kibendo confirmed in an affidavit that his father had sold the suit property to them.
13. The Defendants entered into a sale agreement with the 6 th Defendant on 3 rd August, 2011 whereby they sold the land to him at a consideration of Kshs.2,800,000/=. They state that as at the time this suit was filed, they had already sold it to the 6 th Defendant and that they have no claim against the 6 th Defendant.
14. The Defendants further state that the Plaintiff has not met the threshold for grant of an order based on adverse possession. They stated that the documents relied on by the Plaintiff relate to a different property and that some of his documents appear to have been altered by hand and that the Plaintiff is not in possession of the suit property as he stays at Burnt Forest in Uasin Gishu County.
The 3 rd , 4 th and 5 th Defendants’ Case
15. Though the three Defendants filed affidavits in this case, they did not call any evidence or record any witness statements. It is only the 5 th Defendant through his advocate who indicated that the 5 th Defendant was going to rely on the affidavit filed in this case.
The 6 th Defendant’s Case
16. As at the time of hearing of this case, the 6 th Defendant had passed away and the administratrix of his estate who is his wife adopted the statement which he had recorded and filed. She stated that her husband purchased the suit property from the 1 st and 2 nd Defendants before this suit was filed. The deceased conducted a search before he purchased the suit property. He was unaware of any other claims over the suit property by any other individual. He denied any particulars of fraud attributed to him arguing that the originating summons did not disclose any cause of action against him.
Parties Submissions
17. The parties were directed to file written submissions. The Plaintiff filed his submissions dated 2 nd December, 2025. The 1 st and 2 nd Defendants filed their submissions dated 9 th December, 2025. The 3 rd and 4 th Defendants did not file any submissions. The 5 th Defendant filed her submissions dated 8 th December, 2025. The 6 th Defendant filed submissions dated 6 th November, 2025.
Plaintiff’s Submissions
18. The Plaintiff identified four issues for determination as follows:
1. Whether the Plaintiff has proved his claim of adverse possession over the suit land.
2. Whether the acquisition of registration of the suit land by the 1 st and 2 nd Defendants and subsequently to the 6 th Defendant was legal and enforceable.
3. Whether the 6 th Defendant was a bona fide purchaser for value without notice.
4. Whether the 6 th Defendant trespassed on the suit land and caused destruction to property, lawfully belonging to the Plaintiff, thereby entitling the Plaintiff to general damages.
19. It was submitted that Chepkochoi Murrey who sold the suit property to the Plaintiff joined the partnership after the suit property had already been registered in the names of the three partners appearing on the initial title.
20. It was further submitted that upon payment of the entire purchase price, he obtained building approvals and constructed a servant quarter which he occupied briefly before moving out and letting it to Thomas Mahanga Osunga. After Thomas moved out he introduced his sister in law Selifah Khatioli (PW2) who stayed in the house until she was evicted in August, 2011.
21. The existence of the house put up by the Plaintiff was exhibited in the photographs taken by PW5 Fredric Simiyu Sirengo who produced the photographs. It was submitted that the Plaintiff had demonstrated occupancy of the suit property up until August 2011 when his tenant was unlawfully evicted from the house on the land.
22. Reliance was placed on Section 38(1) of the Limitation of Actions Act which states as follows:
“ Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.
23. The Plaintiff also relied on Section 7 of the Limitation of Actions Act which states as follows:
“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”.
24. The Plaintiff further relied on the case of Mtana Lewa –vs- Kahindi Ngala Mwagandi (2015) eKLR where it was held as follows:
“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it, and the person having title to it 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 inaction of the owner. The essential prerequisites are that the possession of the adverse possessor is neither by force, stealth, nor under the licence of the owner. It must be adequate in continuity, publicity, and extent to show that possession is adverse to the title owner”.
25. Further reliance was placed on the case of Wilson Kazungu Katana & 101 Others –vs- Salim Abdalla Bakshwein & Another 2015 eKLR where it was held as follows:
“First, the parcel of land must be registered in the name of person other than the Applicant; the Applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner: lastly, he must have been in that occupation for a period in excess of twelve years, having dispossessed the owner or there having been discontinuance of possession by the owner”.
26. On when time for purposes of adverse possession begun to run, it was submitted that time began to run on 4 th June, 1987 and by 4 th June, 1999, the twelve year period had lapsed. Reliance was placed on the case of James Kikechi –vs- Septstiano Wafula & Davind Mwecher Chogwony (2020) KEELC 2418 (KLR) where it was held as follows:
“As I have already found above, the Plaintiff’s entry into the suit land was by way of a purchase in 1968 which is not really in dispute. There are contrasting views as to when time for purposes of adverse possession begins to run in favour of a purchaser. In Wambugu –v- Njuguna 1983 KLR 172, the Court took the view that wehre the Claimant is a purchaser under a contract of sale, the possession only becomes adverse when the contract is repudiated. In Samuel Miki Waweru –vs- Jane Njeri Richu C. A. Civil Appeal No. 122 of 2001, the court held that where a transaction for sale of land is frustrated for lack of consent by the Land Control Board, time starts to run on the day the Claimant is put in possession of the land. A similar view was taken in Peter Mbiri Michuki –vs- Samuel Mugo Michuki C. A. Civil Appeal No. 22 of 2013 (2014) eKLR where the judges held as follows:
“On our part, we are of the view that there are four alternative timelines that could be used to compute when time begins to run for purposes of the Plaintiff’s claim for adverse possession. These are 1964, 1970, 1971 or 1978. The year 1964 is the year of the sale agreement between the parties an in this year, the Plaintiff took possession of the suit property”.
I would follow this latter view bearing in mind that in Mwangi & Another –vs- Mwangi 1986 KLR 328, the Court stated that the rights of a person in possession or occupation of land are equitable rights which are binding on the land. In the circumstances of this case, there is nothing to suggest that the agreement between the Plaintiff and the deceased dated 13 th October, 1968 was ever repudiated. It is also now common ground that the Plaintiff took possession of the 14.8 acres on the date of that agreement and therefore, for the purposes of adverse possession, time started to run in 1968. There is also evidence that the deceased was not buried on the suit land but had moved to Saboti where he was buried. This was confirmed by his wife Antonina Namalwa Kutukhulu (DW4) during cross – examination by Mr. Nyamu. This is confirmation therefore that the deceased, having sold the suit land to the Plaintiff, was dispossessed of the same and moved elsewhere”.
27. On the second issue it was submitted that the 1 st and 2 nd Defendants’ title was obtained fraudulently and its transfer to the 6 th Defendant cannot be enforced. It was submitted that purchase by Paul Obiero from Masai Kipendo took place in 1999, the same year when Masai Kipendo died. There was no attempt to take possession until August, 2011. It was submitted that Masai Kipendo died on 4 th October, 1999.
28. It was submitted that Paul Obiero had no title to pass to the 1 st and 2 nd Defendants. The transfer were only signed by two of the partners. Transfer registration and issuance took place on the same date that is 23 rd February, 2011.
29. It was further submitted that Joseph Chemjor and Mary Ruto in their affidavits stated that the 1 st and 2 nd Defendants duped them into signing transfer in their favour.
30. On the third issue, it was submitted that the 6 th Defendant was not an innocent purchaser for value and that he was part of the scheme to acquire the suit property. It was further submitted that the 1 st and 2 nd Defendants did not disclose in their responses to the originating summons that ownership of the suit property had changed to 6 th Defendant who was acting for them in this suit. It was further submitted that the Plaintiff had reported the interference of the suit property as at April, 2011. The 6 th Defendant was acting for the 1 st and 2 nd Defendants during investigations.
31. It was submitted that the wife of the deceased 6 th Defendant appeared not to know about the suit property. It was submitted that this implies that the suit property is vacant.
32. The Plaintiff relied on the case of Sehmi & Another –vs- Tarabana Company Limited (2025) KESC 21 (KLR), Torino Enterprises Limited –vs- Attorney General and Katende –vs- Haridas & Co. Limited (2008) EA 174 all which stipulated the conditions which qualify one to be an innocent purchaser for value.
33. On the fourth issue, it was submitted that the 6 th Defendant had trespassed on to the suit property. Reliance was placed on Section 3(1) of the Trespass Act Cap 294 which states as follows:
34. The Plaintiff relied on the cases of Matu –vs- Karuri (2025) KEELC 6854 (KLR), Muncipal Council of Eldoret –vs- Titus Gatitut Njau (2020) and Thomas Ngaracu Ngugi & 5 Others –vs- John Wilfred Wanyoike & 6 Others (2020) eKLR.
The 1 st and 2 nd Defendants’ Submissions
35. The Defendants submitted that the Plaintiff’s claim has not legs to stand on. It was submitted that the Applicant chose to fight his claim on two fronts; by way of purchase and by way of adverse possession. It was also submitted that the Plaintiff purchased the suit property from Chepkochoi A. Murrey who had no proprietary interest in the land. It was submitted that the Plaintiff’s entry was therefore with permission of the said Chepkochoi A. Murrey. It was submitted that whether the said entry into the suit property was lawful or authorized is immaterial.
36. It was further submitted that the concept of purchase and adverse possession cannot co-exist. One has to opt to pursue one of the two but not pursue the two at the same time. It was finally submitted that a person seeking to be registered as owner of land which has a known owner by way of adverse possession, he must first acknowledge the title before he can proceed to meet the requirements for one to be registered as owner by way of adverse possession.
37. The Defendants relied on the case of Kuria Kiarie & 2 Others –vs- Sammy Magera (2018) KECA 467 (KLR) , Richard Wefwafwa Songoi –vs- Ben Munyifwa Songoi (20220) KECA 942 (KLR), Independent Electoral and Boundaries Commission & Another –vs- Mule & 3 Others (2014) KECA 890 (KLR) and Nyaga –vs- Kavindu & Another (2024) KECA 1346 (KLR).
The 5 th Defendant’s Submissions
38. It was submitted on behalf of the 5 th Defendant that the Plaintiff has no cause of action against her. It was further submitted that she does not have any claim against the Plaintiff and that that is why she signed transfer in favour of the Plaintiff. On the part of the 1 st and 2 nd Defendants, it was submitted that she was duped into signing a transfer in favour of them and that the mere fact that they obtained title, which they subsequently transferred to the 6 th Defendant, the root of that title is questionable. Reliance was placed on the case of Kenya Anti-Corruption Commission –vs- Online Enterprises Limited & 4 others (2019) KEEL 4680 (KLR) where it was held as follows:
“In order to determine the question whether the lease held by the 1 st Defendant is valid, it must be demonstrated that it was properly acquired. It is not enough that one waves a lease or a certificate of lease and assert that he has good title by the mere possession of th lease or certificate of lease. Where there is contention that a lease or certificate of lease held by an individual was improperly acquired, then the holder thereof, must demonstrate, through evidence, that the lease or certificate of lease that he holds, was properly acquired. The acquisition of title cannot be construed only in the end result, the process of acquisition is material and important especially when there are doubts to the regarding the process”.
The 6 th Defendant’s Submissions
39. The 6 th Defendant identified three issues for determination namely:
i. Whether the 6 th Defendant is a bona fide purchaser for value without notice;
ii. Whether the 6 th Defendant has trespassed on the suit property; and
iii. Who is to bear the cost of this suit.
40. The 6 th Defendant relied on the definition of “bonafide purchaser” as defined in Black’s Law Dictionary 8 th Edition where it was defined as follows:
“One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims acquires a good and indefeasible title”.
41. Reliance was also placed on the case of Njenga 7 3 Other –vs- Ndua & Another (2021) KECA 253 (KLR) which quoted the decision in Weston Gitonga & 10 Others –vs- Peter Rugu Gikanga & Another (2007) eKLR where it was held as follows:
“….it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that –
(a) He holds a certificate of title
(b) He purchased the property in good faith
(c) He had no knowledge of the fraud
(d) He purchased for valuable consideration
(e) The vendors had apparent valid title
(f) He purchased without notice of any fraud
(g) He was not party to any fraud”.
42. The 6 th Defendant also relied on the case of Dina Management Limited –vs- County Government of Mombasa (2023) KESC 30 (KLR) where it was held as follows:
“for a court to establish the whether a party is a bona fide purchaser for value, the court must first establish the root of the title right from the first allotment. The court upheld the dicta in Samuel Kamere –vs- Lands Registrar, Kajiado, (Supra) and stated that:”… in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal titles, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquire a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property….”.
43. On the second issue, the 6 th Defendant submitted that the evidence adduced showed that the late 6 th Defendant lawfully purchased the suit property from the 1 st and 2 nd Defendants and took possession of the same. Reliance was placed on the case of Musau –vs- Mutata & Another KEELC 109 (KLR) where it was held as follows:
“To succeed in an action for trespass, first, the onus is on the Plaintiff to prove on a balance of probabilities that (s)he is either the bona fide owner or proprietor of the suit property or that (s)he is in or entitled to immediate possession of the suit property or both; and second, that the sued possession has intruded and/or occupied in the suit property without any justifiable cause”.
Analysis and Determination
44. I have carefully considered the Plaintiff’s evidence as well as the evidence of the Defendants. I have also considered the submissions by the parties. The Plaintiff is seeking to be registered as owner of the suit property on the ground that he has acquired it by adverse possession. The only issue for determination is whether the Plaintiff has met the threshold for registration of the suit property on the basis of adverse possession.
45. There are a number of hurdles which one has to surmount before he can be registered as having acquired land of a known owner on account of adverse possession. These hurdles have been amplified in a number of decisions from the superior courts.
46. The doctrine of adverse possession is predicated on Section 7 of the Limitation of Actions Act.
47. Section 13(1) of the Act provides as follows:
1. A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.
2. Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.
3. For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with Section 12 (3) of this Act, the land in reversion is taken to be adverse possession of the land.
48. In Peter Kamau Njau –vs- Emmanuel Charo Tinga (2016) eKLR, it was held as follows:
“ A registered owner of land, may not, by the provisions of section 7 of the Limitation of Actions Act bring an action to recover land after the end of twelve years from the date on which the right of action accrued to him. At the expiration of that period the owner’s title will be extinguished by operation of the law. Section 38 of the Act permits the person in peaceful possession, without the land owner’s permission, for a continuous and uninterrupted period of 12 years, but who has also done acts on the land which are inconsistent with the registered owner’s enjoyment of the soil for the purpose for which he intended to use it, to apply to be registered as its owner.”
49. In Ndolo –vs- Kitutu & 8 Others (2022) KECA 1289 (KLR) , the court held as follows:
“ For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted use of the land. The physical fact of exclusive possession and the animus possidendi to hold as owner to the exclusion to the actual owner are important factors in a claim for adverse possession. The principles stated in the above holding are also encapsulated in the local legislation referred to elsewhere in this judgment. The direct import of these two provisions is, firstly, that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued, which is the date of dispossession. Secondly, after the expiration of the said twelve years the title of the registered owner shall be extinguished. Thirdly, the person in adverse possession is entitled to a title by possession.”
50. In the case of Jandu –vs- Kirpal & Another (1975) EA 225 which quoted the case of Bejoy Chundra –vs- Kally Possono (1878) 4 Cal 327 at Pr 329 , it was held as follows:
“ By adverse possession I understand to be meant possession by a person holding the land on his own behalf, [or on behalf] of some person other than the true owner, the true owner having immediate possession. If by this adverse possession the statute is set running, and it continues to run for twelve years, then the title of the owner is extinguished and the person in possession becomes the owner.”
51. In Samuel Kihamba –vs- Mary Mbaisi (2015) EKLR it was held as follows:
“ 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.”
52. In Wambugu –vs- Njuguna (1983) KLR 171 , the following guiding principles were laid down:
1) The general principle is that until the contrary is proved possession in law follows the right to possess.
2) In order to acquire by the statute of limitation title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.
3) The limitation of Actions Act , in adverse possession contemplates two concepts, disposition and discontinuance of possession. The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite number of years.
4) Where the claimant is in exclusive possession of the land with leave and licence of the appellant in pursuance to a valid sale or agreement, the possession becomes adverse and time begin to run at the time the licence is determined. Prior to the determination of the licence, the occupation is not adverse but with permission. The occupation can only
[...truncated]
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ELC NO. 763 OF 2012 (OS)
(FORMERLY ELD HCCC NO. 170 OF 2011 (OS))
JOHN ARUSEI SINGOEI…….…….………….…….……..……PLAINTIFF
VERSUS
ELISHA KIPKORIR BUSIENEI…….…….……………...1 ST DEFENDANT
SIMON KIPKERING MUTAI…………………………… 2 ND DEFENDANT
JOSEPH KIPTABUT CHEMJOR……………………….. 3 RD DEFENDANT
MICHAEL K. KIBENDO………………………………… 4 TH DEFENDANT
MARY RUTO……………………………………………… 5 TH DEFENDANT
RUTH NYAMBURA……………………………………… 6 TH DEFENDANT
JUDGMENT
Introduction
1. By an amended originating summons dated 31 st August, 2020, the Plaintiff sought the following reliefs from the Defendants:
1) John Arusei Singoei be registered as the proprietor of land parcel number Eldoret Municipality Block 14/68 having acquired ownership and/or title thereto through adverse possession and that the registration of the 1 st , 2 nd and 6 th Defendants as the proprietors of the suit land was illegal and fraudulent and the titles of the Defendants be declared as having been extinguished by operation of law.
2) A declaration that the 6 th Defendant trespassed into the suit land and the Plaintiff is entitled to general damages for trespass.
3) The 6 th Defendant do execute all the necessary documents to facilitate the registration of Eldoret Municipality Block 14/68 in the name of the Plaintiff within 30 days from the date of judgment free from any encumbrances.
4) In default of 3 above, the Deputy Registrar of this honourable court be at liberty to execute all the necessary documents on behalf of the 6 th Defendant.
5) A permanent injunction be issued restraining the Defendants jointly and severally and either by themselves, their agents, servants and/or employees from trespassing, wasting, selling, alienating, subdividing, transferring and/or in any way deal with that parcel of land known as Eldoret Municipality Block 14/68.
6) The amended summons herein be served upon Elisha Kipkorir Busienei, Simon Kipkering Mutai, Joseph Kiptabut Chemjor, Michael Kibeindo, Mary Ruto and Paul Gicheru.
7) Costs of this originating summons be provided for.
Background
2. The subject matter of this suit is a property known as Eldoret Municipality Block 14/68 measuring 0.2768 Ha (Suit Property). The suit property was registered in the names of Joseph Kiptabut Chemjor, Esiaha Kibendo and Mary Ruto (as administratrix of the estate of Salil Arap Ruto) as tenants in common in equal shares. The three were registered as tenants in common in equal share on 27 th November, 1979. They were issued with certificate of lease on 26 th November, 1984.
Plaintiff’s Case
3. The Plaintiff’s case is that he purchased the suit property in 1987 from one of the partners at a consideration of Kshs.60,000/=. He applied for approvals of building plans from Municipal Council of Eldoret which approvals were granted. He moved into the suit property and constructed a servant quarter where he moved into one of the rooms and rented out the other rooms. In the year 2010 he approached the registered owners of the suit property who signed a transfer for him. When he took the transfer for registration, he discovered that the 1 st and 2 nd Defendants had been registered s owners of the suit property on 23 rd February, 2011.
4. The Plaintiff filed a suit against the 1 st and 5 th Defendants. As the suit progressed in court, he discovered that the ownership of the suit property had changed from the 1 st and 2 nd Defendants to the 6 th Defendant. The Plaintiff’s contention is that the registration of the suit property in the names of the 1 st and 2 nd Defendants and the subsequent transfer to the 6 th Defendant was fraudulent.
5. He stated that Paul Nyang’ute Obiero who sold the suit property to the 1 st and 2 nd Defendants had purportedly purchased the same from one of the partners and that the signature appearing on the sale agreement was not that of the partner who is purported to have sold the land to the said Paul Nyang’ute Obiero. The said Obiero had never occupied the suit property.
6. He further stated that the 6 th Defendant was acting for the 1 st and 2 nd Defendants and that he was aware that there were active investigations into the acquisition of the suit property by the Directorate of Criminal Investigations, yet he went ahead to purchase the suit property from the 1 st and 2 nd Defendants who had no good title to pass to him.
7. The Plaintiff stated that he made payment of the purchase price to the firm of A. G. N. Kamau advocate who was the lawyer of the registered proprietors. He stated that he was in possession of the suit property until his tenant was evicted in August, 2011.
8. The Plaintiff stated that he has been continuously in occupation of the suit property and that the title to the original owners had been extinguished and that the fraudulent title obtained by the 1 st and 2 nd Defendants which was transferred to the 6 th Defendant cannot stand and should be transferred to him on account of adverse possession.
The 1 st and 2 nd Defendants’ Case
9. The Defendants stated that as at the time the Plaintiff filed this suit, they were the registered owners of the suit property. Their names were entered in the register on 23 rd February, 2011 and a certificate of lease issued to them on the same day. They stated that they purchased the suit property from Paul Nyang’ute Obiero on 30 th October, 2009 at a consideration of Kshs.1,200,000/=. The said Obiero had purchased the land from Masai Kibendo Chemurgoi alias Esiaha Kibendo who was one of the registered owners of the suit property.
10. The Defendants further stated that upon Obiero selling the suit property to them, he requested the owners to make a direct transfer to them which they did. Paul Nyang’ute Obiero surrendered the original certificate of lease to them. They went to the Lands Office where they lodged the transfer and the suit property was transferred to them. They stated that they carried out a search which showed that the suit property was registered in the name of three partners who are the ones who executed a transfer in their favour.
11. They further stated that the Plaintiff had made a complaint against them to the police. They were summoned and charged but upon further investigations they were found innocent and the office of the Director of Public Prosecutions recommended the withdrawal of the charges against them under Section 87 A of the Criminal Procedure Code.
12. The Defendants asked to be shown the documents upon which the Plaintiff made a complaint against them. One of the documents was a letter written by one Chepkochoi A. Murrey who purported to sell the suit property to the Plaintiff. They stated that the said Chepkochoi A. Murrey was not one of the owners of the suit property. They stated that the 4 th Defendant who is the administrator of the estate of Esiaha Kibendo confirmed in an affidavit that his father had sold the suit property to them.
13. The Defendants entered into a sale agreement with the 6 th Defendant on 3 rd August, 2011 whereby they sold the land to him at a consideration of Kshs.2,800,000/=. They state that as at the time this suit was filed, they had already sold it to the 6 th Defendant and that they have no claim against the 6 th Defendant.
14. The Defendants further state that the Plaintiff has not met the threshold for grant of an order based on adverse possession. They stated that the documents relied on by the Plaintiff relate to a different property and that some of his documents appear to have been altered by hand and that the Plaintiff is not in possession of the suit property as he stays at Burnt Forest in Uasin Gishu County.
The 3 rd , 4 th and 5 th Defendants’ Case
15. Though the three Defendants filed affidavits in this case, they did not call any evidence or record any witness statements. It is only the 5 th Defendant through his advocate who indicated that the 5 th Defendant was going to rely on the affidavit filed in this case.
The 6 th Defendant’s Case
16. As at the time of hearing of this case, the 6 th Defendant had passed away and the administratrix of his estate who is his wife adopted the statement which he had recorded and filed. She stated that her husband purchased the suit property from the 1 st and 2 nd Defendants before this suit was filed. The deceased conducted a search before he purchased the suit property. He was unaware of any other claims over the suit property by any other individual. He denied any particulars of fraud attributed to him arguing that the originating summons did not disclose any cause of action against him.
Parties Submissions
17. The parties were directed to file written submissions. The Plaintiff filed his submissions dated 2 nd December, 2025. The 1 st and 2 nd Defendants filed their submissions dated 9 th December, 2025. The 3 rd and 4 th Defendants did not file any submissions. The 5 th Defendant filed her submissions dated 8 th December, 2025. The 6 th Defendant filed submissions dated 6 th November, 2025.
Plaintiff’s Submissions
18. The Plaintiff identified four issues for determination as follows:
1. Whether the Plaintiff has proved his claim of adverse possession over the suit land.
2. Whether the acquisition of registration of the suit land by the 1 st and 2 nd Defendants and subsequently to the 6 th Defendant was legal and enforceable.
3. Whether the 6 th Defendant was a bona fide purchaser for value without notice.
4. Whether the 6 th Defendant trespassed on the suit land and caused destruction to property, lawfully belonging to the Plaintiff, thereby entitling the Plaintiff to general damages.
19. It was submitted that Chepkochoi Murrey who sold the suit property to the Plaintiff joined the partnership after the suit property had already been registered in the names of the three partners appearing on the initial title.
20. It was further submitted that upon payment of the entire purchase price, he obtained building approvals and constructed a servant quarter which he occupied briefly before moving out and letting it to Thomas Mahanga Osunga. After Thomas moved out he introduced his sister in law Selifah Khatioli (PW2) who stayed in the house until she was evicted in August, 2011.
21. The existence of the house put up by the Plaintiff was exhibited in the photographs taken by PW5 Fredric Simiyu Sirengo who produced the photographs. It was submitted that the Plaintiff had demonstrated occupancy of the suit property up until August 2011 when his tenant was unlawfully evicted from the house on the land.
22. Reliance was placed on Section 38(1) of the Limitation of Actions Act which states as follows:
“ Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.
23. The Plaintiff also relied on Section 7 of the Limitation of Actions Act which states as follows:
“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”.
24. The Plaintiff further relied on the case of Mtana Lewa –vs- Kahindi Ngala Mwagandi (2015) eKLR where it was held as follows:
“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it, and the person having title to it 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 inaction of the owner. The essential prerequisites are that the possession of the adverse possessor is neither by force, stealth, nor under the licence of the owner. It must be adequate in continuity, publicity, and extent to show that possession is adverse to the title owner”.
25. Further reliance was placed on the case of Wilson Kazungu Katana & 101 Others –vs- Salim Abdalla Bakshwein & Another 2015 eKLR where it was held as follows:
“First, the parcel of land must be registered in the name of person other than the Applicant; the Applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner: lastly, he must have been in that occupation for a period in excess of twelve years, having dispossessed the owner or there having been discontinuance of possession by the owner”.
26. On when time for purposes of adverse possession begun to run, it was submitted that time began to run on 4 th June, 1987 and by 4 th June, 1999, the twelve year period had lapsed. Reliance was placed on the case of James Kikechi –vs- Septstiano Wafula & Davind Mwecher Chogwony (2020) KEELC 2418 (KLR) where it was held as follows:
“As I have already found above, the Plaintiff’s entry into the suit land was by way of a purchase in 1968 which is not really in dispute. There are contrasting views as to when time for purposes of adverse possession begins to run in favour of a purchaser. In Wambugu –v- Njuguna 1983 KLR 172, the Court took the view that wehre the Claimant is a purchaser under a contract of sale, the possession only becomes adverse when the contract is repudiated. In Samuel Miki Waweru –vs- Jane Njeri Richu C. A. Civil Appeal No. 122 of 2001, the court held that where a transaction for sale of land is frustrated for lack of consent by the Land Control Board, time starts to run on the day the Claimant is put in possession of the land. A similar view was taken in Peter Mbiri Michuki –vs- Samuel Mugo Michuki C. A. Civil Appeal No. 22 of 2013 (2014) eKLR where the judges held as follows:
“On our part, we are of the view that there are four alternative timelines that could be used to compute when time begins to run for purposes of the Plaintiff’s claim for adverse possession. These are 1964, 1970, 1971 or 1978. The year 1964 is the year of the sale agreement between the parties an in this year, the Plaintiff took possession of the suit property”.
I would follow this latter view bearing in mind that in Mwangi & Another –vs- Mwangi 1986 KLR 328, the Court stated that the rights of a person in possession or occupation of land are equitable rights which are binding on the land. In the circumstances of this case, there is nothing to suggest that the agreement between the Plaintiff and the deceased dated 13 th October, 1968 was ever repudiated. It is also now common ground that the Plaintiff took possession of the 14.8 acres on the date of that agreement and therefore, for the purposes of adverse possession, time started to run in 1968. There is also evidence that the deceased was not buried on the suit land but had moved to Saboti where he was buried. This was confirmed by his wife Antonina Namalwa Kutukhulu (DW4) during cross – examination by Mr. Nyamu. This is confirmation therefore that the deceased, having sold the suit land to the Plaintiff, was dispossessed of the same and moved elsewhere”.
27. On the second issue it was submitted that the 1 st and 2 nd Defendants’ title was obtained fraudulently and its transfer to the 6 th Defendant cannot be enforced. It was submitted that purchase by Paul Obiero from Masai Kipendo took place in 1999, the same year when Masai Kipendo died. There was no attempt to take possession until August, 2011. It was submitted that Masai Kipendo died on 4 th October, 1999.
28. It was submitted that Paul Obiero had no title to pass to the 1 st and 2 nd Defendants. The transfer were only signed by two of the partners. Transfer registration and issuance took place on the same date that is 23 rd February, 2011.
29. It was further submitted that Joseph Chemjor and Mary Ruto in their affidavits stated that the 1 st and 2 nd Defendants duped them into signing transfer in their favour.
30. On the third issue, it was submitted that the 6 th Defendant was not an innocent purchaser for value and that he was part of the scheme to acquire the suit property. It was further submitted that the 1 st and 2 nd Defendants did not disclose in their responses to the originating summons that ownership of the suit property had changed to 6 th Defendant who was acting for them in this suit. It was further submitted that the Plaintiff had reported the interference of the suit property as at April, 2011. The 6 th Defendant was acting for the 1 st and 2 nd Defendants during investigations.
31. It was submitted that the wife of the deceased 6 th Defendant appeared not to know about the suit property. It was submitted that this implies that the suit property is vacant.
32. The Plaintiff relied on the case of Sehmi & Another –vs- Tarabana Company Limited (2025) KESC 21 (KLR), Torino Enterprises Limited –vs- Attorney General and Katende –vs- Haridas & Co. Limited (2008) EA 174 all which stipulated the conditions which qualify one to be an innocent purchaser for value.
33. On the fourth issue, it was submitted that the 6 th Defendant had trespassed on to the suit property. Reliance was placed on Section 3(1) of the Trespass Act Cap 294 which states as follows:
34. The Plaintiff relied on the cases of Matu –vs- Karuri (2025) KEELC 6854 (KLR), Muncipal Council of Eldoret –vs- Titus Gatitut Njau (2020) and Thomas Ngaracu Ngugi & 5 Others –vs- John Wilfred Wanyoike & 6 Others (2020) eKLR.
The 1 st and 2 nd Defendants’ Submissions
35. The Defendants submitted that the Plaintiff’s claim has not legs to stand on. It was submitted that the Applicant chose to fight his claim on two fronts; by way of purchase and by way of adverse possession. It was also submitted that the Plaintiff purchased the suit property from Chepkochoi A. Murrey who had no proprietary interest in the land. It was submitted that the Plaintiff’s entry was therefore with permission of the said Chepkochoi A. Murrey. It was submitted that whether the said entry into the suit property was lawful or authorized is immaterial.
36. It was further submitted that the concept of purchase and adverse possession cannot co-exist. One has to opt to pursue one of the two but not pursue the two at the same time. It was finally submitted that a person seeking to be registered as owner of land which has a known owner by way of adverse possession, he must first acknowledge the title before he can proceed to meet the requirements for one to be registered as owner by way of adverse possession.
37. The Defendants relied on the case of Kuria Kiarie & 2 Others –vs- Sammy Magera (2018) KECA 467 (KLR) , Richard Wefwafwa Songoi –vs- Ben Munyifwa Songoi (20220) KECA 942 (KLR), Independent Electoral and Boundaries Commission & Another –vs- Mule & 3 Others (2014) KECA 890 (KLR) and Nyaga –vs- Kavindu & Another (2024) KECA 1346 (KLR).
The 5 th Defendant’s Submissions
38. It was submitted on behalf of the 5 th Defendant that the Plaintiff has no cause of action against her. It was further submitted that she does not have any claim against the Plaintiff and that that is why she signed transfer in favour of the Plaintiff. On the part of the 1 st and 2 nd Defendants, it was submitted that she was duped into signing a transfer in favour of them and that the mere fact that they obtained title, which they subsequently transferred to the 6 th Defendant, the root of that title is questionable. Reliance was placed on the case of Kenya Anti-Corruption Commission –vs- Online Enterprises Limited & 4 others (2019) KEEL 4680 (KLR) where it was held as follows:
“In order to determine the question whether the lease held by the 1 st Defendant is valid, it must be demonstrated that it was properly acquired. It is not enough that one waves a lease or a certificate of lease and assert that he has good title by the mere possession of th lease or certificate of lease. Where there is contention that a lease or certificate of lease held by an individual was improperly acquired, then the holder thereof, must demonstrate, through evidence, that the lease or certificate of lease that he holds, was properly acquired. The acquisition of title cannot be construed only in the end result, the process of acquisition is material and important especially when there are doubts to the regarding the process”.
The 6 th Defendant’s Submissions
39. The 6 th Defendant identified three issues for determination namely:
i. Whether the 6 th Defendant is a bona fide purchaser for value without notice;
ii. Whether the 6 th Defendant has trespassed on the suit property; and
iii. Who is to bear the cost of this suit.
40. The 6 th Defendant relied on the definition of “bonafide purchaser” as defined in Black’s Law Dictionary 8 th Edition where it was defined as follows:
“One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims acquires a good and indefeasible title”.
41. Reliance was also placed on the case of Njenga 7 3 Other –vs- Ndua & Another (2021) KECA 253 (KLR) which quoted the decision in Weston Gitonga & 10 Others –vs- Peter Rugu Gikanga & Another (2007) eKLR where it was held as follows:
“….it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that –
(a) He holds a certificate of title
(b) He purchased the property in good faith
(c) He had no knowledge of the fraud
(d) He purchased for valuable consideration
(e) The vendors had apparent valid title
(f) He purchased without notice of any fraud
(g) He was not party to any fraud”.
42. The 6 th Defendant also relied on the case of Dina Management Limited –vs- County Government of Mombasa (2023) KESC 30 (KLR) where it was held as follows:
“for a court to establish the whether a party is a bona fide purchaser for value, the court must first establish the root of the title right from the first allotment. The court upheld the dicta in Samuel Kamere –vs- Lands Registrar, Kajiado, (Supra) and stated that:”… in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal titles, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquire a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property….”.
43. On the second issue, the 6 th Defendant submitted that the evidence adduced showed that the late 6 th Defendant lawfully purchased the suit property from the 1 st and 2 nd Defendants and took possession of the same. Reliance was placed on the case of Musau –vs- Mutata & Another KEELC 109 (KLR) where it was held as follows:
“To succeed in an action for trespass, first, the onus is on the Plaintiff to prove on a balance of probabilities that (s)he is either the bona fide owner or proprietor of the suit property or that (s)he is in or entitled to immediate possession of the suit property or both; and second, that the sued possession has intruded and/or occupied in the suit property without any justifiable cause”.
Analysis and Determination
44. I have carefully considered the Plaintiff’s evidence as well as the evidence of the Defendants. I have also considered the submissions by the parties. The Plaintiff is seeking to be registered as owner of the suit property on the ground that he has acquired it by adverse possession. The only issue for determination is whether the Plaintiff has met the threshold for registration of the suit property on the basis of adverse possession.
45. There are a number of hurdles which one has to surmount before he can be registered as having acquired land of a known owner on account of adverse possession. These hurdles have been amplified in a number of decisions from the superior courts.
46. The doctrine of adverse possession is predicated on Section 7 of the Limitation of Actions Act.
47. Section 13(1) of the Act provides as follows:
1. A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.
2. Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.
3. For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with Section 12 (3) of this Act, the land in reversion is taken to be adverse possession of the land.
48. In Peter Kamau Njau –vs- Emmanuel Charo Tinga (2016) eKLR, it was held as follows:
“ A registered owner of land, may not, by the provisions of section 7 of the Limitation of Actions Act bring an action to recover land after the end of twelve years from the date on which the right of action accrued to him. At the expiration of that period the owner’s title will be extinguished by operation of the law. Section 38 of the Act permits the person in peaceful possession, without the land owner’s permission, for a continuous and uninterrupted period of 12 years, but who has also done acts on the land which are inconsistent with the registered owner’s enjoyment of the soil for the purpose for which he intended to use it, to apply to be registered as its owner.”
49. In Ndolo –vs- Kitutu & 8 Others (2022) KECA 1289 (KLR) , the court held as follows:
“ For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted use of the land. The physical fact of exclusive possession and the animus possidendi to hold as owner to the exclusion to the actual owner are important factors in a claim for adverse possession. The principles stated in the above holding are also encapsulated in the local legislation referred to elsewhere in this judgment. The direct import of these two provisions is, firstly, that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued, which is the date of dispossession. Secondly, after the expiration of the said twelve years the title of the registered owner shall be extinguished. Thirdly, the person in adverse possession is entitled to a title by possession.”
50. In the case of Jandu –vs- Kirpal & Another (1975) EA 225 which quoted the case of Bejoy Chundra –vs- Kally Possono (1878) 4 Cal 327 at Pr 329 , it was held as follows:
“ By adverse possession I understand to be meant possession by a person holding the land on his own behalf, [or on behalf] of some person other than the true owner, the true owner having immediate possession. If by this adverse possession the statute is set running, and it continues to run for twelve years, then the title of the owner is extinguished and the person in possession becomes the owner.”
51. In Samuel Kihamba –vs- Mary Mbaisi (2015) EKLR it was held as follows:
“ 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.”
52. In Wambugu –vs- Njuguna (1983) KLR 171 , the following guiding principles were laid down:
1) The general principle is that until the contrary is proved possession in law follows the right to possess.
2) In order to acquire by the statute of limitation title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.
3) The limitation of Actions Act , in adverse possession contemplates two concepts, disposition and discontinuance of possession. The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite number of years.
4) Where the claimant is in exclusive possession of the land with leave and licence of the appellant in pursuance to a valid sale or agreement, the possession becomes adverse and time begin to run at the time the licence is determined. Prior to the determination of the licence, the occupation is not adverse but with permission. The occupation can only
[...truncated]