JUDGEMENT
1. The Plaintiffs herein did file an Originating Summons dated 24.06.2021 (hereinafter referred to as “the present suit” ) against the Defendant and the Interested Party seeking a determination of the following issues; -
(I) Whether or not the Plaintiffs/Applicants have obtained title by way of adverse possession to 40 Hectares portion of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares having been on uninterrupted possession of the same since 29 th September, 1982 initially having entered the land when it was registered as Land Registration Number 6459/3 (ORIG 6459/2/2).
(II) Whether or not the Plaintiffs/Applicants have been in exclusive, open, peaceful, continuous and uninterrupted occupation, possession and use of that parcel of land registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 40 Hectares for a period of over twelve (12) years (in fact over 38 years) as of right and has acquired title and ownership of the said portion approximately measuring 40 Hectares of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares by virtue of adverse possession.
(III) The Respondent’s title over 40 Hectares of Land Registration Number 6459/3 (ORIG 6459/2/2) has been extinguished by dint of adverse possession and or the Limitation of Actions Act.
(IV) Whether or not a declaration and a finding be made that upon expiry of twelve (12) years from the year 1957 the title of the Respondent to a portion of the land approximately measuring 40 Hectares out of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately 363.7 Hectares became extinguished at law and that the Respondent/Defendant only holds the title in trust for the Plaintiffs/Applicants and be transferred by the Respondent to the Applicants.
(V) The Respondent be ordered to transfer 40 Hectares out of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares to the Applicants failing which the Deputy Registrar of the Honourable Court do execute the documents necessary to effect a transfer into the name of applicants and Chief Lands Registrar and Uasin Gishu County Lands Registrar do issue a title deeds (sic) for 40 Hectares in the names of the 48 Applicants herein.
(VI) That upon grant of the foregoing, a permanent injunction be and is hereby issued restraining the Respondent by himself, his servants, agents and/or employees from interfering with the Applicants lawful enjoyment and quiet possession of the 40 Hectares out of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares.
(VII) Who should bear the costs of this originating summons?
2. The facts in support of the issues outlined hereinabove for determination are contained in the body of the present suit as well as the Supporting Affidavit sworn thereof on the 24.06.2021 and are summarised by this Court as follows; -
(i) The Defendant herein is the beneficial and registered owner of the property known as LR.NO.6459/3 (Originally LR.NO.6459/2/2) measuring 363.7 Hectares (hereinafter referred to as “the suit property” ).
(ii) On the other hand, the Plaintiffs herein did initially enter and occupy a portion of 40 Acres within the suit property with the consent of the original owner before the suit property was transferred to the Defendant herein.
(iii) The Plaintiffs did plead that the original owner did dispose of the suit property to the Defendant with a clear condition that a portion of 40 acres with the suit property would be for the use and benefit of the Plaintiff herein.
(iv) Based on this understanding, the Plaintiffs herein who in total are 48 families did erect and/or develop various structures including their homes and undertake other economic activities including farming.
(v) The Plaintiffs state that their occupation and use of the portion measuring 40 acres of the suit property since 1957 was adverse to the ownership of the Defendant and by extension the Interested Party herein.
(vi) The Plaintiffs are of the view that since the Defendant did excise and transfer the portion measuring 40 acres within the suit property as agreed with the original owner upon purchase and transfer of the same, then their continued occupation which was open, uninterrupted and with the knowledge of the Defendant for over a period of 12 years extinguished the proprietary rights acquired by the Defendant and the Interested Party by extension.
(vii) However, on or about the year 2020, the Defendant alongside other persons unknown to the Plaintiffs did invade the portion measuring 40 acres and began sub-dividing the same with a view of disposing it off and forcefully evicting the Plaintiffs herein.
(viii) The Defendants further did demolish the Plaintiffs’ structures on the portion measuring 40 acres on the suit property thereby interfering their normal livelihood and occupation of the same.
(ix) The Plaintiffs therefore sought this Court to declare the Defendant’s ownership over the portion measuring 40 acres to be extinguished and that the Plaintiffs are the lawful and beneficial owners of the same.
3. The present suit was duly served on the Defendant and the Interested Party herein.
4. The Defendant did oppose the present suit by way of a Defence dated 13.09.2021.
5. The facts pleaded in the Defence dated 13.09.2021 in opposition of the present suit were as follows; -
(i) The Defendant did admit to being the registered owner of the suit property herein.
(ii) The Defendant did plead that the suit property did not exist as the same had been sub-divided and new titles issued for the sub-divisions thereof.
(iii) The Defendant did deny any knowledge and/or existence of any understanding and/or condition of purchase to the effect that the Plaintiffs herein were entitled to a portion of 40 acres with the suit property.
(iv) According to the Defendant, the portion measuring 40 acres which is purported to be occupied by the Plaintiffs herein is within the sub-divisions namely LR.NO.6459/9, 6459/10 AND 6459/11 and are registered in the names of other persons and/or entities.
(v) The Defendant did confirm that the new registered owners of the sub-divisions namely LR.NO.6459/9, 6459/10 AND 6459/11 have since taken possession of their properties and the Defendant is neither the registered owner and/or in possession of the same.
(vi) In essence, the Defendant did plead that if there was any occupation and use of the portions namely LR.NO. 6459/9, 6459/10 and 6459/11, then the same was interrupted by the transfer of the same and the entry of the new owners into the said sub-divisions.
(vii) The Defendant did further deny knowledge of any permission and/or consent issued to the Plaintiffs herein to occupy any portion of the suit property.
(viii) In the alternative, if such a consent and/or permission was issued to the Plaintiffs, then their occupation of the portion measuring 40 acres cannot be adverse the ownership rights of the Defendant to warrant a claim of adverse possession.
(ix) In conclusion, the Defendant did seek this Court to dismiss the present suit with costs.
6. The Interested Party also did file a Replying Affidavit dated 09.09.2021 in opposition to the present suit.
7. In the Replying Affidavit sworn on the 09.09.2021, the Interested Party did plead the following facts in opposition of the present suit; -
(i) The Interested Party did admit to be the current registered owner of the suit property.
(ii) The Interested Party did plead that the suit property was acquired through a public auction conducted on 20.12.2019 and took possession on 28.03.2020.
(iii) The Interested Party did state that the public auction was preceded by two notices on 04.12.2019 and 09.12.2019 in the Daily Nation Newspaper advertising the suit property for sale by public auction.
(iv) The Interested Party did participate in the public auction slated for 20.12.2019, where its bid of KShs.62,500,000/- was accepted as the highest bid and issued with the relevant Memorandum of Sale.
(v) Upon completion of the purchase price, the Interested Party was issued with a Certificate of Sale dated 31.12.2019 and the ownership documents were registered in its name on the 12.03.2020 resulting to a Certificate of Title being issued thereof.
(vi) The Interested Party did confirm that it took possession of the entire suit property on the 28.03.2020 by fencing the same and has been utilising the same to the exclusion of the Plaintiffs herein.
(vii) The Interested Party did specifically plead that the Plaintiffs herein were not in occupation and/or use of the suit property at the time it was registered as the owner and/or took possession of the same on the 28.03.2020.
(viii) In conclusion, the Interested Party did plead and state that the Plaintiffs herein did not have any proprietary interest whatsoever on the suit property as they were not in occupation and/or use of the same.
8. Upon filing and service of both the Defence by the Defendant and the Replying Affidavit by the Interested Party, the Plaintiffs did not file any response to either of them and pleadings did close thereafter.
PLAINTIFFS TESTIMONIES & DOCUMENTARY EVIDENCE
9. The first witness to be called by the Plaintiffs to the stand was the 3 rd Plaintiff who was marked as PW 1.
10. PW 1 did introduce himself as a business man currently residing at Mosop Sub-location within Uasin Gishu County.
11. According to the testimony of PW 1, he was an employee of the original white settler who was the registered as the owner of the suit property.
12. PW 1 did disclose to the Court that during their employment with the original white settler, the Plaintiffs were allocated and gifted a portion of 40 acres on the suit property.
13. Thereafter, the suit property was disposed of to the Defendant and the Plaintiffs did continue occupying and using the said portion of 40 acres within the suit property.
14. PW 1 did inform the Court that during their occupation of the portion measuring 40 acres on the suit property owned by the Defendant, they had erected various structures, undertaken farming activities and even buried their relatives without the objection of the Defendant herein.
15. PW 1 did produce a Copy of a Burial Permit of one ELIZABETH KANGIRO who was his sister as PLAINTIFF’S EXHIBIT 1.
16. However, later on, the Plaintiff’s structures and/or developments were demolished and he was forcefully evicted from the portion of land they were in occupation.
17. PW1 did produce a copy of a Certificate of Official Search relating to the suit property which confirms the Defendant to be the lawful registered owner of the same as PLAINTIFF EXHIBIT 2.
18. PW 1 did further seek to rely on his written statement dated 02.06.2024, which statement was adopted as his evidence-in-chief.
19. PW 1 therefore sought for the Court to declare the Plaintiffs herein as the lawful owners of the portion measuring 40 acres within the suit property herein.
20. On cross-examination by the Defendant, PW 1 did admit being an employee of the Defendant and was paid a salary as such.
21. PW 1 did further state that even his parents had been employed by the Defendant but did deny that the houses they resided had been built by the Defendant.
22. PW 1 in fact did admit that all the 48 employees who are not Plaintiffs in the present suit were employees of the Defendant earning a salary as such.
23. PW1 explained that the 40 Hectares claimed were for all the Plaintiffs, although he could not tell if the said portion had been excised from the original parcel.
24. PW1 testified that the 40 Hectares is not identifiable as it was not fenced and conceded that there was someone currently staying on the portion they are claiming.
25. PW1 testified that he was not involved when the land was charged to the bank, but he was aware it had been advertised for sale.
26. PW1 admitted that burying someone on a piece of land does not entitle him to the land, but he asserted that he was only claiming the 40 Hectares where he grew up, and told the court that he was currently living in rented premises.
27. PW1 testified that he was not arrested on instigation of the Defendant and he did not know if he was involved in the destruction of his property.
28. PW1 also conceded that the land currently belongs to the Interested Party, which is connected to the Defendant.
29. PW1 told the Court that he was unaware of the proceedings known as ELC Case No. 132/2021, although he had known there was an auction relating to the suit property.
30. On cross-examination by the Interested Party, PW 1 did admit that he had been born on the suit property but could not state the exact date when his parents had begun residing on the suit property.
31. PW1 clarified that all the 48 Plaintiffs worked for the Defendant, and before that their parents had worked for the white settlers on the suit property.
32. PW1 testified that they were arrested on 24.06.2021 and were released on 28.06.2021, however his family was at home on 25.06.2021.
33. He confirmed that some of the Plaintiffs still work for the Defendant.
34. On re-examination, PW1 testified that he was aware the land was subdivided in 1998, and that the parcel that was subdivided was outside the 40 Acres they occupied.
35. After this re-examination, PW1 was discharged from the witness box.
36. The Plaintiffs’ second witness was one NEWEI KANGIRO who was marked as PW 2.
37. PW 2 did introduce herself as resident of Ainabkoi but had been residing on the suit property before.
38. PW 2 did inform the Court that she had prepared a witness statement dated 24.06.2022, which she did adopt as her evidence-in-chief.
39. PW2 explained that she married her husband John Kangiro in 1975, who at that time was already living on suit property, and did produce a number of photographs as PLAINTIFFS EXHIBIT 3 (A) –(D).
40. PW 2 did testify that her occupation on the suit property from the year 1975 was disputed on in the year 2021 when they were evicted and they lost their house and all their animals.
41. PW 2 did disclose that her husband had been employed as a watchman by the Defendant.
42. On cross-examination by the Defendant, PW2 testified that she used to do small businesses and was currently un-employed.
43. PW2 reiterated that her husband used to work for the Defendants as a watchman.
44. PW2 added that after they were evicted from the suit property, it was occupied by agents of the Interested Party.
45. PW 2 did reiterate that when she re-entered the suit property, she was in occupation of the same with her five children and one had actually passed on and was buried on the suit property.
46. On further cross-examination, PW2 did reiterate that her husband had been in occupation within the suit property since 1967.
47. According to PW 2, her husband had been working for the registered owner of the suit property for a long period of time and therefore were allocated 40 acres during the alienation of the suit property to the new owner.
48. PW 2 nevertheless did state that their structures, including their homes, were demolished after the new owner took possession, although she did not have any photographs of the structures demolished during the eviction process.
49. PW 2 did conclude her cross-examination by disclosing that although she did make a report with the Police, there was no assistance accorded to her.
50. At the end of this cross-examination, there was no re-examination and PW 2 was discharged from the witness box.
51. The Plaintiffs’ third witness was JOHN KANGIRO HALABANI who was marked as PW3.
52. PW3 did introduce himself as a resident of Uasin Gishu and was currently unemployed.
53. PW 3 did inform the Court that he had been a resident of the suit property where he was employed as a herdsman.
54. According to PW 3, the original owner had roughly 40 employees who were working on the suit property and had allocated 40 acres for their settlement and benefit.
55. PW 3 did aver that he had built a temporary structure of the suit property which was his home during his employment, the same was subsequently demolished after the ownership did change.
56. PW 3 did admit that he no longer resides on the suit property but did produce a letter dated 04.10.2012 containing the list of the legitimate occupants of the suit property which was marked as PLAINTIFFS EXHIBIT 4 and 5 respectively.
57. PW 3 did explain that at the time of his employment and occupation of the suit property, the common name was ELDORA FARM which changed to KONYIT FARM upon acquisition by the new owner.
58. PW 3 did produce a National Social Security Fund Payment Statement dated 24.02.1984 confirming his employment with the previous owner as PLAINTIFF EXHIBIT 6.
59. At the end of his examination in chief, PW 3 did seek the Honourable Court to issue an order to be reinstated back to the suit property which is where he considers home.
60. On cross-examination, PW 3 did reiterate that the legitimate people who were allocated land on the suit property were 40 employees.
61. PW3 did disclose that a number of employees who include MARKO LOKITET, HILLOW HUSSEIN and JAMES OCHIALI had been buried in their rural homes and not on the suit property.
62. PW 3 did aver that the suit property was sold off to the Defendant in the year 1982 and is currently occupied by the Interested Party.
63. On further cross-examination, PW 3 did reiterate that he had been employed on the suit property by the original owner although the ownership had since changed and the same is now with the Interested Party.
64. PW3 did inform the Court that while some of the original employees of the original owner have died, their beneficiaries thereof had been included in the List of Beneficiaries produced as PLAINTIFF’S EXHIBITS 4 and 5.
65. PW 3 did clarify that as at 25.06.2021 when he was evicted from the suit property, some of the original employees of the original owner had since vacated and he was the only one remaining on the suit property.
66. At the end of this cross-examination, there was no re-examination on PW3 and he was subsequently discharged from the witness box.
67. The Plaintiffs fourth witness was BENATINE JEPCHIRCHIR RUTOO who was marked as PW4.
68. PW4 did inform the Court that she had prepared a Witness Statement dated 24.06.2022, which she did adopt as her testimony-in-chief.
69. PW4 did disclose to the Court that the 1 st Plaintiff was her father-in-law.
70. PW4 further did confirm that the 1 st Plaintiff was indeed an employee of the first owner of the suit property and subsequently the Defendant herein.
71. According to PW 4, the 1 st Plaintiff had been in occupation of the suit property for over twenty (20) years but the same was interfered with by the eviction that took place on the 24.06.2021.
72. PW4 did further disclose that during the 1 st Plaintiff’s occupation on the suit property, one of the sister’s in law did pass on and had been buried on the suit property as demonstrated in PLAINTIFFS EXHIBIT 1.
73. PW4 did seek to rely on the photographs produced as PLAINTIFFS EXHIBIT 3 (a-d) as evidence of their houses demolished by the employees of the Interested Party.
74. On cross-examination, PW 4 did disclose that she was married to the 1 st Plaintiff’s son SIMEON TANUI in the year 2006 and blessed with 5 children.
75. PW 4 did claim that they were in occupation of 40 acres although she did not have any evidence of such an occupation.
76. On being referred to the PLAINTIFFS EXHIBIT 1, PW 4 could not specify the location where the sister-in-law was buried.
77. On further cross-examination, PW4 did inform the Court that the eviction was undertaken by civilians and her husband was one of the persons arrested.
78. On being referred to PLAINTIFFS EXHIBITS 3 (a-d), PW 4 did confirm that the photographs were taken during the eviction process.
79. However, PW 4 did not have an inventory of the assets and/or items which were either lost and/or destroyed during the eviction process undertaken by the Interested Party.
80. In concluding the cross-examination, PW 4 did confirm that their occupation on the suit property was by virtue of the 1 st Plaintiff who was the father-in-law and had been employed by the original owner and the Defendant.
81. On re-examination, PW4 reiterated that they did not salvage anything from their houses including receipts.
82. At the end of this re-examination, PW 4 was discharged from the suit property.
83. The Plaintiffs fifth witness was one JULIA CHEPTOO who was marked as PW 5.
84. PW 5 did introduce herself as a resident of Uasin Gishu and did adopt her witness statement dated 24.06.2022 as her evidence in chief.
85. In support of her evidence in chief, PW 5 did also rely on the exhibits produced earlier by PW 1.
86. PW 5 did disclose that her deceased father was one of the employees by the original owner of the suit property and thereafter the Defendant.
87. PW 5 did confirm that indeed PLAINTIFF EXHIBIT 6 confirms that her father was an employee on the suit property.
88. On referring to the PLAINTIFFS EXHIBIT 3 (a-d), PW5 insisted that the pictures contained herein demonstrate and confirm the existence of graveyards and demolition of their homesteads.
89. PW5 states that they had lived on the land for over 60 years, but the Interested Party wanted to evict them claiming ownership of the land.
90. On cross-examination, PW 5 did disclose that she was born and raised in Plateau where her parents were employees of the original owner and subsequently thereafter the Defendant herein.
91. PW 5 did confirm that the suit property is registered in the name of the Defendant but was not familiar with any charge granted to any other entity.
92. Similarly, PW 5 did testify that she was not aware that the suit property had been transferred to a third party who was the Interested Party.
93. PW 5 did clarify that although the photographs in PLAINTIFFS EXHIBIT 3 (a-d) were not dated, the same were taken on the 24.06.2021.
94. PW 5 was of the view that the portion being claimed by the Plaintiffs was 40 acres which should be hived off from the suit property and be issued with a distinct ownership document.
95. PW 5 did inform the Court that she was not aware of any pending or decided case relating to the suit property.
96. As regards the KIPLOMBE CEMENTERY, PW 5 admit that it was a Government facility which people were rested and no one can claim ownership over the same.
97. On re-examination, PW 5 did reiterate that the Plaintiffs herein were in occupation of 40 acres within the suit property as demonstrated by the PLAINTIFFS EXHIBIT 3 (a-d).
98. PW 5 did confirm her occupation on the suit property began upon her marriage to the 1 st Plaintiff’s son who had been in occupation for over 60 years.
99. In conclusion, PW 5 did assert that she had been in peaceful occupation and use of a portion of the suit property.
100. At the end of this re-examination, PW 5 was discharged from the witness stand.
101. Upon discharge if PW 5, the Plaintiffs case was duly closed.
INTERESTED PARTY’S TESTIMONIES & DOCUMENTARY EVIDENCE
102. The first witness by the Interested Party was one JOSEPH KIPKORIR CHERUIYOT who was marked as IPW 1.
103. IPW 1 did introduce himself as the manager of the Interested Party.
104. IPW 1 did inform the Court that he had prepared a Witness Statement dated 14.02.2025 of which he adopted as his evidence in chief.
105. IPW 1 further did seek to rely on the Witness Statement of one VALERIA JEPTOO LIMO sworn on 09.09.2021.
106. IPW 1 did produce the following documents in support of his evidence-in-chief; -
IPW 1- A Copy of a Newspaper for 04.12.2019 relating to a public auction of the suit property.
IPW 2- A Copy of a Newspaper advertisement dated 09.12.2019 relating to the suit property.
IPW 3(a-e)- A bundle of copies of cheques Nos. 001486 dated 17.12.2019, 001487 dated 17.12.2019, 001484 dated 17.12.2019, 001483 dated 17.12.2019 and a final one also dated 17.12.2019 all totaling to KShs.5,000,000/-
IPW 4- A Copy of a Memo of Sale dated 20.12.2019 between the Interested Party and Leakey Auctioneers over the suit property.
IPW 5 - A Copy of a Certificate of Sale of the suit property issued in favour of the Interested Party.
IPW 6-A Copy of a Certificate of Title of the suit property issued in the name of Richard Kipruto Arap Busienei issued on 01.11.1960.
IPW 7-A copy of the Encumbrance Section relating to the Register of the suit property and in particular the 1 st Charge registered on 30.04.2013 by CFC Stanbic, 2 nd Charge registered on 03.03.2015 by CFC Stanbic and the registration of the transfer the Interested Party dated 12.03.2020.
IPW 8 - Copies of photographs of the suit property and the developments done by the Interested Party
107. According to IPW 1, the Interested Party’s property is LR.NO.6459/4 and not LR.NO. 6459/3 which is the suit property in this suit.
108. IPW 1 therefore did clarify that it has no interest on the suit property known as LR.NO.6459/3 claimed by the Plaintiffs herein.
109. IPW 1 did outline the process of acquisition of the property known as LR.NO.6459/4.
110. According to IPW 1, the property known as LR.NO.6457/4 was advertisement for auction on the 04.12.2019 and auctioned on 24.12.2019.
111. Thereafter, the Interested Party did take possession of the property known as LR.NO.6459/4 and has been in occupation and use of the same.
112. IPW 1 did aver that the Plaintiffs were strangers to the Interested Party and only met them in this proceeding hence had no legal interested on the property known as LR.NO.6459/4.
113. As such, IPW1 did ask the Court to dismiss the present suit with cost.
114. On cross-examination, IPW 1 did inform the Court that the property known as LR.NO.6459/4 was advertised for sale through a public auction in the newspapers.
115. According to IPW 1, the registered owner of the property known as LR.NO.6459/4 was the Defendant who had charged it to a financial facility.
116. However, the Defendant was unable to service the financial facility and the property known as LR.NO.6459/4 was to be disposed of either through a public or private auction.
117. Upon acquisition of the property known as LR.NO.6459/4 by the Interested Party, the Defendant did hand over possession of the same to the Interested Party.
118. IPW 1 did confirm that at the time of taking possession of the property known as LR.NO.6459/4, there were no squatters on the same.
119. On cross-examination, IPW 1 testified that they took possession of the land on 28.03.2020.
120. IPW 1 did confirm that upon inspection of the property known as LR.NO.6459/4, there were developments on the property but there was no person in occupation of the same hence no need for an eviction exercise.
121. On re-examination, IPW 1 did acknowledge being aware of a property known as LR.NO.6459/3 but did clarify it has no interest on the same.
122. In concluding his evidence, IPW 1 did reiterate that there are no developments or persons occupying the property known as LR.NO.6459/4.
123. At the end this re-examination, IPW 1 was discharged and the Interested Party’s case was subsequently closed.
THE DEFENDANT’S TESTIMONIES & DOCUMENTARY EVIDENCE
124. The Defendant’s first witness was RICHARD KIPRUTO ARAP BUSIENEI who was marked as DW 1.
125. DW1 did inform the Court that he had prepared a witness statement dated 24.02.2022, which he did adopt as his evidence-in-chief.
126. According to the testimony of DW 1, he was the registered owner of the suit property, which measured approximately 363.7 Hectares.
127. At the point of purchasing the suit property, DW 1 was not informed of any alienation of the portion measuring 40 acres to the Plaintiff herein by the original owner through any lawful documentation.
128. DW 1 did confirm that the suit property known as LR.NO.6459/3 no longer exists legally for the reason that the same was sub-divided into 8 portions namely LR.NO.6459/4-11.
129. Thereafter, the property known as LR.NO.6459/4 was offered as security to a financial institution for a loan procured by the Defendant.
130. Unfortunately, the DW1 was unable to redeem the property known as LR.NO.6459/4 and was subsequently auctioned to the Interested Party by the financial institution.
131. DW 1 did explain that the 1 st Plaintiff was in occupation of the suit property with the permission of the Defendant and therefore was not a squatter.
132. In concluding his testimony, DW 1 did produce the following ownership documents of the properties, which were sub-divisions of the original LR.NO.6459/3, which are still in the name of the Defendant; -
DW1 Exhibit 1 – A Copy of a title No. 6459/11 issued on 24.09.1998 in the name of the Defendant.
DW1 Exhibit 2 – A Copy of a title No. 6459/10 issued on 24.09.1998 in the name of the Defendant.
133. On cross-examination, DW 1 did reiterate that the property known as LR.NO.6459/4 was charged to a financial institution which the Defendant was unable to redeem and was sold by public auction.
134. Consequently thereafter, DW 1 did confirm that the property known as LR.NO.6459/4 was sold to the Interested Party by the financial institution.
135. In essence, DW1 did affirm that the property known as LR.NO.6459/4 was occupied and is in use by the Interested Party.
136. DW 1 did state that the original property known as LR.NO.6459/3 was purchased from one WALTER KILELE by the Defendant and thereaft
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1. The Plaintiffs herein did file an Originating Summons dated 24.06.2021 (hereinafter referred to as “the present suit” ) against the Defendant and the Interested Party seeking a determination of the following issues; -
(I) Whether or not the Plaintiffs/Applicants have obtained title by way of adverse possession to 40 Hectares portion of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares having been on uninterrupted possession of the same since 29 th September, 1982 initially having entered the land when it was registered as Land Registration Number 6459/3 (ORIG 6459/2/2).
(II) Whether or not the Plaintiffs/Applicants have been in exclusive, open, peaceful, continuous and uninterrupted occupation, possession and use of that parcel of land registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 40 Hectares for a period of over twelve (12) years (in fact over 38 years) as of right and has acquired title and ownership of the said portion approximately measuring 40 Hectares of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares by virtue of adverse possession.
(III) The Respondent’s title over 40 Hectares of Land Registration Number 6459/3 (ORIG 6459/2/2) has been extinguished by dint of adverse possession and or the Limitation of Actions Act.
(IV) Whether or not a declaration and a finding be made that upon expiry of twelve (12) years from the year 1957 the title of the Respondent to a portion of the land approximately measuring 40 Hectares out of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately 363.7 Hectares became extinguished at law and that the Respondent/Defendant only holds the title in trust for the Plaintiffs/Applicants and be transferred by the Respondent to the Applicants.
(V) The Respondent be ordered to transfer 40 Hectares out of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares to the Applicants failing which the Deputy Registrar of the Honourable Court do execute the documents necessary to effect a transfer into the name of applicants and Chief Lands Registrar and Uasin Gishu County Lands Registrar do issue a title deeds (sic) for 40 Hectares in the names of the 48 Applicants herein.
(VI) That upon grant of the foregoing, a permanent injunction be and is hereby issued restraining the Respondent by himself, his servants, agents and/or employees from interfering with the Applicants lawful enjoyment and quiet possession of the 40 Hectares out of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares.
(VII) Who should bear the costs of this originating summons?
2. The facts in support of the issues outlined hereinabove for determination are contained in the body of the present suit as well as the Supporting Affidavit sworn thereof on the 24.06.2021 and are summarised by this Court as follows; -
(i) The Defendant herein is the beneficial and registered owner of the property known as LR.NO.6459/3 (Originally LR.NO.6459/2/2) measuring 363.7 Hectares (hereinafter referred to as “the suit property” ).
(ii) On the other hand, the Plaintiffs herein did initially enter and occupy a portion of 40 Acres within the suit property with the consent of the original owner before the suit property was transferred to the Defendant herein.
(iii) The Plaintiffs did plead that the original owner did dispose of the suit property to the Defendant with a clear condition that a portion of 40 acres with the suit property would be for the use and benefit of the Plaintiff herein.
(iv) Based on this understanding, the Plaintiffs herein who in total are 48 families did erect and/or develop various structures including their homes and undertake other economic activities including farming.
(v) The Plaintiffs state that their occupation and use of the portion measuring 40 acres of the suit property since 1957 was adverse to the ownership of the Defendant and by extension the Interested Party herein.
(vi) The Plaintiffs are of the view that since the Defendant did excise and transfer the portion measuring 40 acres within the suit property as agreed with the original owner upon purchase and transfer of the same, then their continued occupation which was open, uninterrupted and with the knowledge of the Defendant for over a period of 12 years extinguished the proprietary rights acquired by the Defendant and the Interested Party by extension.
(vii) However, on or about the year 2020, the Defendant alongside other persons unknown to the Plaintiffs did invade the portion measuring 40 acres and began sub-dividing the same with a view of disposing it off and forcefully evicting the Plaintiffs herein.
(viii) The Defendants further did demolish the Plaintiffs’ structures on the portion measuring 40 acres on the suit property thereby interfering their normal livelihood and occupation of the same.
(ix) The Plaintiffs therefore sought this Court to declare the Defendant’s ownership over the portion measuring 40 acres to be extinguished and that the Plaintiffs are the lawful and beneficial owners of the same.
3. The present suit was duly served on the Defendant and the Interested Party herein.
4. The Defendant did oppose the present suit by way of a Defence dated 13.09.2021.
5. The facts pleaded in the Defence dated 13.09.2021 in opposition of the present suit were as follows; -
(i) The Defendant did admit to being the registered owner of the suit property herein.
(ii) The Defendant did plead that the suit property did not exist as the same had been sub-divided and new titles issued for the sub-divisions thereof.
(iii) The Defendant did deny any knowledge and/or existence of any understanding and/or condition of purchase to the effect that the Plaintiffs herein were entitled to a portion of 40 acres with the suit property.
(iv) According to the Defendant, the portion measuring 40 acres which is purported to be occupied by the Plaintiffs herein is within the sub-divisions namely LR.NO.6459/9, 6459/10 AND 6459/11 and are registered in the names of other persons and/or entities.
(v) The Defendant did confirm that the new registered owners of the sub-divisions namely LR.NO.6459/9, 6459/10 AND 6459/11 have since taken possession of their properties and the Defendant is neither the registered owner and/or in possession of the same.
(vi) In essence, the Defendant did plead that if there was any occupation and use of the portions namely LR.NO. 6459/9, 6459/10 and 6459/11, then the same was interrupted by the transfer of the same and the entry of the new owners into the said sub-divisions.
(vii) The Defendant did further deny knowledge of any permission and/or consent issued to the Plaintiffs herein to occupy any portion of the suit property.
(viii) In the alternative, if such a consent and/or permission was issued to the Plaintiffs, then their occupation of the portion measuring 40 acres cannot be adverse the ownership rights of the Defendant to warrant a claim of adverse possession.
(ix) In conclusion, the Defendant did seek this Court to dismiss the present suit with costs.
6. The Interested Party also did file a Replying Affidavit dated 09.09.2021 in opposition to the present suit.
7. In the Replying Affidavit sworn on the 09.09.2021, the Interested Party did plead the following facts in opposition of the present suit; -
(i) The Interested Party did admit to be the current registered owner of the suit property.
(ii) The Interested Party did plead that the suit property was acquired through a public auction conducted on 20.12.2019 and took possession on 28.03.2020.
(iii) The Interested Party did state that the public auction was preceded by two notices on 04.12.2019 and 09.12.2019 in the Daily Nation Newspaper advertising the suit property for sale by public auction.
(iv) The Interested Party did participate in the public auction slated for 20.12.2019, where its bid of KShs.62,500,000/- was accepted as the highest bid and issued with the relevant Memorandum of Sale.
(v) Upon completion of the purchase price, the Interested Party was issued with a Certificate of Sale dated 31.12.2019 and the ownership documents were registered in its name on the 12.03.2020 resulting to a Certificate of Title being issued thereof.
(vi) The Interested Party did confirm that it took possession of the entire suit property on the 28.03.2020 by fencing the same and has been utilising the same to the exclusion of the Plaintiffs herein.
(vii) The Interested Party did specifically plead that the Plaintiffs herein were not in occupation and/or use of the suit property at the time it was registered as the owner and/or took possession of the same on the 28.03.2020.
(viii) In conclusion, the Interested Party did plead and state that the Plaintiffs herein did not have any proprietary interest whatsoever on the suit property as they were not in occupation and/or use of the same.
8. Upon filing and service of both the Defence by the Defendant and the Replying Affidavit by the Interested Party, the Plaintiffs did not file any response to either of them and pleadings did close thereafter.
PLAINTIFFS TESTIMONIES & DOCUMENTARY EVIDENCE
9. The first witness to be called by the Plaintiffs to the stand was the 3 rd Plaintiff who was marked as PW 1.
10. PW 1 did introduce himself as a business man currently residing at Mosop Sub-location within Uasin Gishu County.
11. According to the testimony of PW 1, he was an employee of the original white settler who was the registered as the owner of the suit property.
12. PW 1 did disclose to the Court that during their employment with the original white settler, the Plaintiffs were allocated and gifted a portion of 40 acres on the suit property.
13. Thereafter, the suit property was disposed of to the Defendant and the Plaintiffs did continue occupying and using the said portion of 40 acres within the suit property.
14. PW 1 did inform the Court that during their occupation of the portion measuring 40 acres on the suit property owned by the Defendant, they had erected various structures, undertaken farming activities and even buried their relatives without the objection of the Defendant herein.
15. PW 1 did produce a Copy of a Burial Permit of one ELIZABETH KANGIRO who was his sister as PLAINTIFF’S EXHIBIT 1.
16. However, later on, the Plaintiff’s structures and/or developments were demolished and he was forcefully evicted from the portion of land they were in occupation.
17. PW1 did produce a copy of a Certificate of Official Search relating to the suit property which confirms the Defendant to be the lawful registered owner of the same as PLAINTIFF EXHIBIT 2.
18. PW 1 did further seek to rely on his written statement dated 02.06.2024, which statement was adopted as his evidence-in-chief.
19. PW 1 therefore sought for the Court to declare the Plaintiffs herein as the lawful owners of the portion measuring 40 acres within the suit property herein.
20. On cross-examination by the Defendant, PW 1 did admit being an employee of the Defendant and was paid a salary as such.
21. PW 1 did further state that even his parents had been employed by the Defendant but did deny that the houses they resided had been built by the Defendant.
22. PW 1 in fact did admit that all the 48 employees who are not Plaintiffs in the present suit were employees of the Defendant earning a salary as such.
23. PW1 explained that the 40 Hectares claimed were for all the Plaintiffs, although he could not tell if the said portion had been excised from the original parcel.
24. PW1 testified that the 40 Hectares is not identifiable as it was not fenced and conceded that there was someone currently staying on the portion they are claiming.
25. PW1 testified that he was not involved when the land was charged to the bank, but he was aware it had been advertised for sale.
26. PW1 admitted that burying someone on a piece of land does not entitle him to the land, but he asserted that he was only claiming the 40 Hectares where he grew up, and told the court that he was currently living in rented premises.
27. PW1 testified that he was not arrested on instigation of the Defendant and he did not know if he was involved in the destruction of his property.
28. PW1 also conceded that the land currently belongs to the Interested Party, which is connected to the Defendant.
29. PW1 told the Court that he was unaware of the proceedings known as ELC Case No. 132/2021, although he had known there was an auction relating to the suit property.
30. On cross-examination by the Interested Party, PW 1 did admit that he had been born on the suit property but could not state the exact date when his parents had begun residing on the suit property.
31. PW1 clarified that all the 48 Plaintiffs worked for the Defendant, and before that their parents had worked for the white settlers on the suit property.
32. PW1 testified that they were arrested on 24.06.2021 and were released on 28.06.2021, however his family was at home on 25.06.2021.
33. He confirmed that some of the Plaintiffs still work for the Defendant.
34. On re-examination, PW1 testified that he was aware the land was subdivided in 1998, and that the parcel that was subdivided was outside the 40 Acres they occupied.
35. After this re-examination, PW1 was discharged from the witness box.
36. The Plaintiffs’ second witness was one NEWEI KANGIRO who was marked as PW 2.
37. PW 2 did introduce herself as resident of Ainabkoi but had been residing on the suit property before.
38. PW 2 did inform the Court that she had prepared a witness statement dated 24.06.2022, which she did adopt as her evidence-in-chief.
39. PW2 explained that she married her husband John Kangiro in 1975, who at that time was already living on suit property, and did produce a number of photographs as PLAINTIFFS EXHIBIT 3 (A) –(D).
40. PW 2 did testify that her occupation on the suit property from the year 1975 was disputed on in the year 2021 when they were evicted and they lost their house and all their animals.
41. PW 2 did disclose that her husband had been employed as a watchman by the Defendant.
42. On cross-examination by the Defendant, PW2 testified that she used to do small businesses and was currently un-employed.
43. PW2 reiterated that her husband used to work for the Defendants as a watchman.
44. PW2 added that after they were evicted from the suit property, it was occupied by agents of the Interested Party.
45. PW 2 did reiterate that when she re-entered the suit property, she was in occupation of the same with her five children and one had actually passed on and was buried on the suit property.
46. On further cross-examination, PW2 did reiterate that her husband had been in occupation within the suit property since 1967.
47. According to PW 2, her husband had been working for the registered owner of the suit property for a long period of time and therefore were allocated 40 acres during the alienation of the suit property to the new owner.
48. PW 2 nevertheless did state that their structures, including their homes, were demolished after the new owner took possession, although she did not have any photographs of the structures demolished during the eviction process.
49. PW 2 did conclude her cross-examination by disclosing that although she did make a report with the Police, there was no assistance accorded to her.
50. At the end of this cross-examination, there was no re-examination and PW 2 was discharged from the witness box.
51. The Plaintiffs’ third witness was JOHN KANGIRO HALABANI who was marked as PW3.
52. PW3 did introduce himself as a resident of Uasin Gishu and was currently unemployed.
53. PW 3 did inform the Court that he had been a resident of the suit property where he was employed as a herdsman.
54. According to PW 3, the original owner had roughly 40 employees who were working on the suit property and had allocated 40 acres for their settlement and benefit.
55. PW 3 did aver that he had built a temporary structure of the suit property which was his home during his employment, the same was subsequently demolished after the ownership did change.
56. PW 3 did admit that he no longer resides on the suit property but did produce a letter dated 04.10.2012 containing the list of the legitimate occupants of the suit property which was marked as PLAINTIFFS EXHIBIT 4 and 5 respectively.
57. PW 3 did explain that at the time of his employment and occupation of the suit property, the common name was ELDORA FARM which changed to KONYIT FARM upon acquisition by the new owner.
58. PW 3 did produce a National Social Security Fund Payment Statement dated 24.02.1984 confirming his employment with the previous owner as PLAINTIFF EXHIBIT 6.
59. At the end of his examination in chief, PW 3 did seek the Honourable Court to issue an order to be reinstated back to the suit property which is where he considers home.
60. On cross-examination, PW 3 did reiterate that the legitimate people who were allocated land on the suit property were 40 employees.
61. PW3 did disclose that a number of employees who include MARKO LOKITET, HILLOW HUSSEIN and JAMES OCHIALI had been buried in their rural homes and not on the suit property.
62. PW 3 did aver that the suit property was sold off to the Defendant in the year 1982 and is currently occupied by the Interested Party.
63. On further cross-examination, PW 3 did reiterate that he had been employed on the suit property by the original owner although the ownership had since changed and the same is now with the Interested Party.
64. PW3 did inform the Court that while some of the original employees of the original owner have died, their beneficiaries thereof had been included in the List of Beneficiaries produced as PLAINTIFF’S EXHIBITS 4 and 5.
65. PW 3 did clarify that as at 25.06.2021 when he was evicted from the suit property, some of the original employees of the original owner had since vacated and he was the only one remaining on the suit property.
66. At the end of this cross-examination, there was no re-examination on PW3 and he was subsequently discharged from the witness box.
67. The Plaintiffs fourth witness was BENATINE JEPCHIRCHIR RUTOO who was marked as PW4.
68. PW4 did inform the Court that she had prepared a Witness Statement dated 24.06.2022, which she did adopt as her testimony-in-chief.
69. PW4 did disclose to the Court that the 1 st Plaintiff was her father-in-law.
70. PW4 further did confirm that the 1 st Plaintiff was indeed an employee of the first owner of the suit property and subsequently the Defendant herein.
71. According to PW 4, the 1 st Plaintiff had been in occupation of the suit property for over twenty (20) years but the same was interfered with by the eviction that took place on the 24.06.2021.
72. PW4 did further disclose that during the 1 st Plaintiff’s occupation on the suit property, one of the sister’s in law did pass on and had been buried on the suit property as demonstrated in PLAINTIFFS EXHIBIT 1.
73. PW4 did seek to rely on the photographs produced as PLAINTIFFS EXHIBIT 3 (a-d) as evidence of their houses demolished by the employees of the Interested Party.
74. On cross-examination, PW 4 did disclose that she was married to the 1 st Plaintiff’s son SIMEON TANUI in the year 2006 and blessed with 5 children.
75. PW 4 did claim that they were in occupation of 40 acres although she did not have any evidence of such an occupation.
76. On being referred to the PLAINTIFFS EXHIBIT 1, PW 4 could not specify the location where the sister-in-law was buried.
77. On further cross-examination, PW4 did inform the Court that the eviction was undertaken by civilians and her husband was one of the persons arrested.
78. On being referred to PLAINTIFFS EXHIBITS 3 (a-d), PW 4 did confirm that the photographs were taken during the eviction process.
79. However, PW 4 did not have an inventory of the assets and/or items which were either lost and/or destroyed during the eviction process undertaken by the Interested Party.
80. In concluding the cross-examination, PW 4 did confirm that their occupation on the suit property was by virtue of the 1 st Plaintiff who was the father-in-law and had been employed by the original owner and the Defendant.
81. On re-examination, PW4 reiterated that they did not salvage anything from their houses including receipts.
82. At the end of this re-examination, PW 4 was discharged from the suit property.
83. The Plaintiffs fifth witness was one JULIA CHEPTOO who was marked as PW 5.
84. PW 5 did introduce herself as a resident of Uasin Gishu and did adopt her witness statement dated 24.06.2022 as her evidence in chief.
85. In support of her evidence in chief, PW 5 did also rely on the exhibits produced earlier by PW 1.
86. PW 5 did disclose that her deceased father was one of the employees by the original owner of the suit property and thereafter the Defendant.
87. PW 5 did confirm that indeed PLAINTIFF EXHIBIT 6 confirms that her father was an employee on the suit property.
88. On referring to the PLAINTIFFS EXHIBIT 3 (a-d), PW5 insisted that the pictures contained herein demonstrate and confirm the existence of graveyards and demolition of their homesteads.
89. PW5 states that they had lived on the land for over 60 years, but the Interested Party wanted to evict them claiming ownership of the land.
90. On cross-examination, PW 5 did disclose that she was born and raised in Plateau where her parents were employees of the original owner and subsequently thereafter the Defendant herein.
91. PW 5 did confirm that the suit property is registered in the name of the Defendant but was not familiar with any charge granted to any other entity.
92. Similarly, PW 5 did testify that she was not aware that the suit property had been transferred to a third party who was the Interested Party.
93. PW 5 did clarify that although the photographs in PLAINTIFFS EXHIBIT 3 (a-d) were not dated, the same were taken on the 24.06.2021.
94. PW 5 was of the view that the portion being claimed by the Plaintiffs was 40 acres which should be hived off from the suit property and be issued with a distinct ownership document.
95. PW 5 did inform the Court that she was not aware of any pending or decided case relating to the suit property.
96. As regards the KIPLOMBE CEMENTERY, PW 5 admit that it was a Government facility which people were rested and no one can claim ownership over the same.
97. On re-examination, PW 5 did reiterate that the Plaintiffs herein were in occupation of 40 acres within the suit property as demonstrated by the PLAINTIFFS EXHIBIT 3 (a-d).
98. PW 5 did confirm her occupation on the suit property began upon her marriage to the 1 st Plaintiff’s son who had been in occupation for over 60 years.
99. In conclusion, PW 5 did assert that she had been in peaceful occupation and use of a portion of the suit property.
100. At the end of this re-examination, PW 5 was discharged from the witness stand.
101. Upon discharge if PW 5, the Plaintiffs case was duly closed.
INTERESTED PARTY’S TESTIMONIES & DOCUMENTARY EVIDENCE
102. The first witness by the Interested Party was one JOSEPH KIPKORIR CHERUIYOT who was marked as IPW 1.
103. IPW 1 did introduce himself as the manager of the Interested Party.
104. IPW 1 did inform the Court that he had prepared a Witness Statement dated 14.02.2025 of which he adopted as his evidence in chief.
105. IPW 1 further did seek to rely on the Witness Statement of one VALERIA JEPTOO LIMO sworn on 09.09.2021.
106. IPW 1 did produce the following documents in support of his evidence-in-chief; -
IPW 1- A Copy of a Newspaper for 04.12.2019 relating to a public auction of the suit property.
IPW 2- A Copy of a Newspaper advertisement dated 09.12.2019 relating to the suit property.
IPW 3(a-e)- A bundle of copies of cheques Nos. 001486 dated 17.12.2019, 001487 dated 17.12.2019, 001484 dated 17.12.2019, 001483 dated 17.12.2019 and a final one also dated 17.12.2019 all totaling to KShs.5,000,000/-
IPW 4- A Copy of a Memo of Sale dated 20.12.2019 between the Interested Party and Leakey Auctioneers over the suit property.
IPW 5 - A Copy of a Certificate of Sale of the suit property issued in favour of the Interested Party.
IPW 6-A Copy of a Certificate of Title of the suit property issued in the name of Richard Kipruto Arap Busienei issued on 01.11.1960.
IPW 7-A copy of the Encumbrance Section relating to the Register of the suit property and in particular the 1 st Charge registered on 30.04.2013 by CFC Stanbic, 2 nd Charge registered on 03.03.2015 by CFC Stanbic and the registration of the transfer the Interested Party dated 12.03.2020.
IPW 8 - Copies of photographs of the suit property and the developments done by the Interested Party
107. According to IPW 1, the Interested Party’s property is LR.NO.6459/4 and not LR.NO. 6459/3 which is the suit property in this suit.
108. IPW 1 therefore did clarify that it has no interest on the suit property known as LR.NO.6459/3 claimed by the Plaintiffs herein.
109. IPW 1 did outline the process of acquisition of the property known as LR.NO.6459/4.
110. According to IPW 1, the property known as LR.NO.6457/4 was advertisement for auction on the 04.12.2019 and auctioned on 24.12.2019.
111. Thereafter, the Interested Party did take possession of the property known as LR.NO.6459/4 and has been in occupation and use of the same.
112. IPW 1 did aver that the Plaintiffs were strangers to the Interested Party and only met them in this proceeding hence had no legal interested on the property known as LR.NO.6459/4.
113. As such, IPW1 did ask the Court to dismiss the present suit with cost.
114. On cross-examination, IPW 1 did inform the Court that the property known as LR.NO.6459/4 was advertised for sale through a public auction in the newspapers.
115. According to IPW 1, the registered owner of the property known as LR.NO.6459/4 was the Defendant who had charged it to a financial facility.
116. However, the Defendant was unable to service the financial facility and the property known as LR.NO.6459/4 was to be disposed of either through a public or private auction.
117. Upon acquisition of the property known as LR.NO.6459/4 by the Interested Party, the Defendant did hand over possession of the same to the Interested Party.
118. IPW 1 did confirm that at the time of taking possession of the property known as LR.NO.6459/4, there were no squatters on the same.
119. On cross-examination, IPW 1 testified that they took possession of the land on 28.03.2020.
120. IPW 1 did confirm that upon inspection of the property known as LR.NO.6459/4, there were developments on the property but there was no person in occupation of the same hence no need for an eviction exercise.
121. On re-examination, IPW 1 did acknowledge being aware of a property known as LR.NO.6459/3 but did clarify it has no interest on the same.
122. In concluding his evidence, IPW 1 did reiterate that there are no developments or persons occupying the property known as LR.NO.6459/4.
123. At the end this re-examination, IPW 1 was discharged and the Interested Party’s case was subsequently closed.
THE DEFENDANT’S TESTIMONIES & DOCUMENTARY EVIDENCE
124. The Defendant’s first witness was RICHARD KIPRUTO ARAP BUSIENEI who was marked as DW 1.
125. DW1 did inform the Court that he had prepared a witness statement dated 24.02.2022, which he did adopt as his evidence-in-chief.
126. According to the testimony of DW 1, he was the registered owner of the suit property, which measured approximately 363.7 Hectares.
127. At the point of purchasing the suit property, DW 1 was not informed of any alienation of the portion measuring 40 acres to the Plaintiff herein by the original owner through any lawful documentation.
128. DW 1 did confirm that the suit property known as LR.NO.6459/3 no longer exists legally for the reason that the same was sub-divided into 8 portions namely LR.NO.6459/4-11.
129. Thereafter, the property known as LR.NO.6459/4 was offered as security to a financial institution for a loan procured by the Defendant.
130. Unfortunately, the DW1 was unable to redeem the property known as LR.NO.6459/4 and was subsequently auctioned to the Interested Party by the financial institution.
131. DW 1 did explain that the 1 st Plaintiff was in occupation of the suit property with the permission of the Defendant and therefore was not a squatter.
132. In concluding his testimony, DW 1 did produce the following ownership documents of the properties, which were sub-divisions of the original LR.NO.6459/3, which are still in the name of the Defendant; -
DW1 Exhibit 1 – A Copy of a title No. 6459/11 issued on 24.09.1998 in the name of the Defendant.
DW1 Exhibit 2 – A Copy of a title No. 6459/10 issued on 24.09.1998 in the name of the Defendant.
133. On cross-examination, DW 1 did reiterate that the property known as LR.NO.6459/4 was charged to a financial institution which the Defendant was unable to redeem and was sold by public auction.
134. Consequently thereafter, DW 1 did confirm that the property known as LR.NO.6459/4 was sold to the Interested Party by the financial institution.
135. In essence, DW1 did affirm that the property known as LR.NO.6459/4 was occupied and is in use by the Interested Party.
136. DW 1 did state that the original property known as LR.NO.6459/3 was purchased from one WALTER KILELE by the Defendant and thereaft
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