1. The initial Plaintiff/Applicant, John S. Ole Maitai (now deceased) instituted this suit against the Defendant/Respondent vide Originating Summons dated 17th May 2021, in respect of Eight Decimal Two One Hectares (8.21 Ha) of parcel No. NAROK/CIS-MARA/OLORROPIL/889, (hereinafter referred to as “the Suit Property”).
2. This Originating Summons was filed pursuant to Order 37 Rules 1 & 2, of the Civil Procedure Rules 2010, Sections 7 and 38(1) of the Limitations of Actions Act, CAP 22 Laws of Kenya, and all other enabling provisions of law. This Originating Summons was supported by the Supporting Affidavit of John S. Ole Maitai, (now deceased) sworn on even date, and urged the court to allow his claim.
3. The said Plaintiff/Applicant invited the Court to determine the following questions in relation to his claim of entitlement over the Suit Property by adverse possession:
1. Whether or not the Plaintiff has been in uninterrupted occupation and use of Parcel No. NAROK/CIS-MARA/OLORROPIL/899.
2. Whether or not the said occupation, possession and use have been continuous peaceful, open and adverse to the Defendant and uninterrupted to date since 1983.
3. Whether the rights of the Defendant over the Suit Property have been extinguished by effluxion of time.
4. Whether the occupation of the suit land by the Plaintiff has been within the knowledge of the Defendant.
5. Whether the Plaintiff should be declared the owners of the land Parcel No. NAROK/CIS-MARA/OLORROPIL/889 composed off 8.21 Ha and consequently the land Title be issued in his name.
6. Who should pay the costs of this suit.
4. In his Supporting Affidavit sworn on 17th May 2021, the said original Plaintiff/Applicant (John S. Ole Maitai) set out the grounds in support of the Originating Summons as follows: that the Defendant/Respondent is the registered proprietor of NAROK/CIS-MARA/OLORROPIL/889; that he entered into 8.21 Ha of NAROK/CIS-MARA/OLORROPIL/899, in or around 1984, after entering into a sale agreement with the registered owner of the Suit Property; the Respondent/Defendant herein; that land parcel No. 899, was still under adjudication and after registration, the said parcel of land acquired title No. NAROK/CIS-MARA/OLORROPIL/889.
5. Further, that at the time that the said Plaintiff occupied the suit land, it was a forest infested by wild animals making it impassable; and that it took him a lot of time to clear the said land, and turn it into land that is capable of occupation as it is today; that he has brought up his children on the said land, cultivated the land for over 35 years, and that his occupation has been uninterrupted because the Defendant has never occupied the said land.
6. Further, that the green card for the land was open in 2007, 23 years after he had been in occupation; that at the time of filing this suit, it has been 11 years since, making the total number of years that he has been in occupation of the Suit Property, about 37 years in total; that he lays a claim over the suit land by virtue of adverse possession, and that he is worried that the Defendant/Respondent may forcefully evict him, and also erasing any evidence of his occupation.
7. Following the demise of the initial Plaintiff (John S.Ole Maitai now Deceased) on, Topoika Olormaitai (Plaintiff/Applicant herein petitioned the Chief Magistrate’s Court in Narok Succession Case No. E054 of 2023 for a Grant of Letters of Administration Ad Litem on 4th September 2022, and the said letters were issued to him on 20th September 2023.
8. Pursuant to the said Grant, Topoika Olormaitai filed an Amended Originating Summons dated 11th November 2024, taking over the suit from the Deceased( John S. Ole Maitai) in his capacity as the personal representative of the estate of the Deceased.
9. The substituted Plaintiff/Applicant sought determination of the same questions raised by the Deceased( John S. Ole Maitai) in the Originating Summons dated 17th May 2021, save for the additional prayer that the court makes a finding in favour of the Plaintiff/Applicant. Further, he sought to rely on the Supporting Affidavit sworn by the Deceased on 17th May 2021, support of his amended Originating Summons.
10. This Originating Summons is contested and in opposition to the said Summons, the Defendant/ Respondent( Koitaat Ole Saitieu), filed a Replying Affidavit dated 25th July 2022, in “vehement” opposition to the instant Summons.
11. The Defendant/Respondent denied entering into any sale agreement with the said John S.Ole Maitai, or any other person for sell of land parcel No. NAROK/CIS-MARA/OLORROPIL/899, to the Plaintiff/Applicant in or around 1984, when the Plaintiff allegedly entered unto the suit property; Further, he denied relinquishing his ownership of the suit property to the alleged John Ole Maita, despite the said land being under adjudication.
12. The Defendant/Respondent further averred that the Plaintiff/Applicant did not file any objection proceedings to fortify his ownership property over the suit property in accordance with the Land Adjudication Act. Further, he contended that he is the registered owner of all of that parcel of land known as NAROK/CIS-MARA/OLORROPIL/889; that he allowed the Plaintiff( John S. Ole Maitai) to occupy the suit property and utilise it for farming purposes on a humanitarian basis; that the suit property was not a forest as averred by the Plaintiff.
13. Further, he denied the averment by the Plaintiff that he has been in occupation of the suit property in an open and uninterrupted manner; however, he contended that the Plaintiff has been in occupation of part of the suit property with the his permission; he claimed that the Plaintiff has been utilising part of the property, but the entire suit property is still in his possession as a member of the Olorropil Adjudication Section, and the title deed was issued to him in 2007.
14. The Defendant/Respondent also denied that the Plaintiff/Applicant has been occupying the suit property for about 37 years, with 23 of them being until 2007, when the green card for the suit property was opened, and 14 years, until the institution of the suit.
15. In the contrary, he claimed that the Plaintiff/Applicant (John Ole Maitai) was in occupation of the suit property with his authority and permission, and the said occupation and possession has been interrupted by him from time to time by utilising part of the suit property.
16. Further, he denied that the Plaintiff/Applicant has developed the suit property, but he allowed him to establish semi-permanent structures, and that the same cannot be taken to fit the description of extensive development. Further, that he has at all times been in undisputed possession of the Suit Property until 2021, when he extended ownership of the suit property to his son, Patita Ole Saitieu, and a title deed for the suit property was issued jointly in their names on 14th June 2021.
17. It was his contention that the Plaintiff’s Claim for Adverse Possession is not genuine, as his purported occupation of the suit property cannot be said to have been uninterrupted for 12 years; and that the averments by the Plaintiff are false, devoid of non-disclosure of material facts and an attempt to mislead the Court.
18. The Defendant/Respondent did not file any Amended Replying in response to the Amended Originating Summons dated 11th November 2024, but relied entirely on his early Replying Affidavit.
19. After Pre-trial conferences, the matter proceeded for hearing via viva voce evidence, wherein the Plaintiff gave evidence for himself and called two more witnesses, and the Defendant gave evidence for himself and called one witness.
PLAINTIFF’S CASE
20. PW1 Topoika Olormaitai, adopted his Witness Statement dated 15th September 2025, as his evidence in chief and produced his List and Bundle of Documents as P exhibit 1, to support his case.
21. It was his further testimony that he is the son to John S. Ole Maitai (Deceased), the original Plaintiff in this matter; that he witnessed the transaction between the Plaintiff (his deceased father), and the Defendant; that the Defendant was paid partly from a shop belonging to the Plaintiff’s family.
22. Further, that his parents developed the suit property, and their ancestral home is on the suit land; that the Defendant has been aware of the Plaintiff’s occupation of the Suit Property since 1983, until 2021, when the Defendant forcefully evicted the Plaintiff’s family from the said land, prompting the Plaintiff to file this case.
23. He further testified that the Plaintiff’s deceased father and the Defendant entered into a sale agreement on 26th July 1983, wherein they signed the said agreement by affixing their thumb prints; that the Defendant sold the Suit Property to the Plaintiff’s deceased father( John S. Ole Maitai), and his deceased father took possession and occupation of the said land from the date of purchase, until when their family was evicted thereon.
24. The Plaintiff also testified that his family has lived on the suit property for over 40 years; that the title deed is in the Defendant’s name and Patita Ole Saitieu; that Patita Ole Saitieu is the Defendant’s brother and not his son as alleged by the Defendant.
25. He also claimed that there were no boundaries on the land and that boundaries were fixed after adjudication; that the Sale Agreement has no description of the land, and that Patita entered unto the suit property and vandalised their property and development thereon, although there is no criminal case against Patita for malicious damage to property.
26. On cross examination, PW1 testified that the sale agreement was executed on a date that he could not remember; that the sale agreement was over land NO. 899; that the land had no boundary, but that the boundaries were fixed upon adjudication and upon payment of the purchase price.
27. He further testified that the land was sold for Kshs. 650/=, per Acre; that the 1st Defendant was present when the agreement was signed; that the sale agreement was signed by various witnesses who are now dead; and that the said sale agreement was drafted by his elder brother who is also deceased.
28. It was his evidence that he was not present when money was paid to the Defendant; that cattle and goats were also taken to the Defendant; that the agreement of sale is dated 26th July 1983, and that there could be another agreement dated 12th April 1983.
29. Further that the sale Agreement has the vendor’s ID No, the 1st Defendant herein; that the said sale Agreement does not show the description of the land; that he does not agree to the allegation that the adjudication numbers were changed; that he was evicted by Patita Ole Saitieu in 2021 after payment of the entire purchase price; and that he did not report the matter to the police station.
30. Further, that there is no criminal case against Patita for malicious damage; that he is not aware whether Patita was summoned by the police; that they went to Olorropil Police Station; that they do not have any other land; and that Ole Maitai his deceased father, was buried at his brother’s John S. land.
31. PW2 Ruth Nanyikae Maitai, adopted her witness statement dated 15th September 2025, as her evidence in chief, and further testified that she was the wife to the initial Plaintiff (now deceased- John S, Ole Maitai) for over 50 years.
32. Further, she testified that her husband, now deceased, purchased the suit property, approximately 12 Acres ,from the Defendant in exchange for cash and some cattle; that she was present during the sale, but that she did not sign the said Sale Agreement; that the property was sold to them at Kshs. 650/= per Acre.
33. She also claimed that her family has lived on the suit property for over 40 years; that upon purchase of the said land, the family took possession of the suit property when it was a forest with wild animals, which land they cleared for occupation; that they developed the suit property; but the Defendant recently entered unto the said land, and chased them out of this suit property. Further, that they do not own any other land; She claimed that when the initial Plaintiff died (her husband), he was buried on his brother’s land, but not on the suit property due to the Defendant’s hostility.
34. Upon cross-examination, PW2 testified that she neither remembers when they bought the land nor the title number of the suit land; that she was present when the land was purchased; and there was a written agreement; the land was purchased at 650/= per Acre; and that the payment was done partly in cash and partly in shop goods, which shop was manned by her sister-in-law called Saiyuni.
35. She further testified that they also paid in goats and sheep; that she neither recalled the amount of money paid nor the number of goats and sheep paid; and that she did not recall most of the transactions because she cannot read, and she is old.
36. She further testified that she did not sign anywhere; that she lives in her son’s compound ,and not her husbands; that her husband was buried on his brother, Kasaine’s land; and that her husband did not have any other land.
37. Further that there were witnesses present at the time of the agreement, but that she cannot recall them; that the land does not belong to the Defendant; and that the Defendant is trying to grab her land.
38. PW3, William Karia, adopted his witness statement dated 15th September 2025, as his evidence in chief. Though he was present in Court when PW2, testified, the court allowed him to testify having cautioned itself that he was present in court during the testimony of PW2.
39. PW3 testified that he was a neighbour to the Plaintiff whom he had known for over 40 years, who reside on NAROK/CIS-MARA/OLORROPIL/899. It was his testimony that he had leased a portion of the suit property from the Plaintiff’s son, PW1 for a period of 5 years for the purpose of farming; Further, that he did not use the land for the entire period leased since the Defendant forcefully evicted him.
40. Further, that the Plaintiff’s family had established their matrimonial home on the suit property, and they had lived thereon for over 40 years. It was his further testimony that the Defendant forcefully entered unto the suit property and destroyed the fence thus combining the Plaintiff’s land with his adjacent land; and that the Defendant has since 2021 to date been leasing out the land to other persons, leaving the Plaintiff’s family homeless since they do not have any other land for their livelihood.
41. PW3, also testified that it was Patita Ole Saitieu, that evicted him; and he reported the matter to the are Chief; but t Patita was not summoned by the said area Chief.
42. On cross examination, he testified that he leased 12 Acres of the land in 2018; but the Defendant evicted him from the said land; that he had leased this land from the Plaintiff for 5 years; and that the Plaintiff had lived on the suit land for over 40 years.
43. Further, that he had leased the land from 2018 to 2022; and he cultivated the land upto 2021, when he was not allowed to plant any crops by the Defendant; that he used to pay the Plaintiff Kshs 120,000/=; annually, and that he paid the amount in cash for 2 years before he was chased out of the land on the 3rd year.
44. Further, that there was an agreement between him and the Plaintiff, which agreement he said he did not have in court; that he was not aware that this case would be filed in court; that he went to the area Chief in 2021; and the Chief did not summon the Plaintiff; and that the Plaintiff did not return the money to him.
DEFENDANT’S CASE
45. DW1 Koitaat Ole Saitieu, adopted his witness statement dated 16th May 2025, as his evidence in chief and produced his List and Bundle of Documents as D Exhibits 1 – 4.
46. He further testified that he is the registered proprietor of CIS-MARA/OLOROPIL/899, measuring approximately 8.21 Ha allocated to him by Oloropil Adjudication Committee. He claimed that he did not sell the Suit Property to the John S Ole Maitai, the initial Plaintiff/ Applicant in 1983, as alleged by the Plaintiff; that he lives on the suit property which he has developed, and does farming activities; that he did not enter into any sale agreement for selling the suit property to the Plaintiff.
47. DW1 also testified that the Plaintiff/Applicant has never lived on the suit property, and that he has never relinquished his ownership rights over the suit property to the Plaintiff; that the Plaintiff/Applicant occupied the suit property for a few years with his permission, which possession he has numerously interrupted. He claimed that the thumb print on the Sale Agreement is not his; and that the Plaintiff/Applicant has another land about 10 Kilometres away.
48. He insisted that the Plaintiff/Applicant entered unto the suit property by mistake; and although the Plaintiff’s family stayed on the suit property, they did not occupy as lessees. He admitted that the house on the photos produced by the PW1 and PW2 belongs to Patita, DW2, and not the Plaintiff’s family; and that he did not change the title deed in 2021, to include Patita as a joint owner to defeat the Plaintiff’s claim for adverse possession.
49. DW2, Patita Ole Saitieu, also adopted his witness statement dated 16th May 2025, as his evidence in chief, and further testified that the Defendant/Respondent is his father, and is the registered proprietor of CIS-MARA/OLOROPIL/899, which was allocated to him by Oloropil Adjudication committee; and the title deed for the suit property was issued on 11th July 2007.
50. Further, he testified that the Defendant and himself utilise the suit property by growing crops, and keeping livestock animals; that the Plaintiff and his family have never continuously lived on the suit property; and that the structures attached as evidence before the court are not on the suit property. He claimed that in June 2021, the Defendant/Respondent extended ownership of the suit property to him and a title deed dated 14th June 2021, was issued to them.
51. He also testified that the Defendant/Respondent has never relinquished ownership of the suit property to the Plaintiff; that there is nothing produced as evidence to confirm that the Defendant/ Respondent had forfeited his rights over the suit property granting the Plaintiff the rights to claim Adverse possession; that the Plaintiff’s family own other parcels of land elsewhere.
52. After the viva voce evidence, the Court directed the parties to file written submissions to support their respective positions, which directions were adhered to.
53. The Plaintiff/ Applicant filed his written submissions dated 29th January 2026, through J.Martim& Co Advocates to support his Amended Originating Summons, wherein he raised the following issues for determination: -
1. Whether the Plaintiff bought the suit land being CISMARA/OLORROPIL/889, vide the Sale Agreement dated 12th April 1983.
2. Whether the Plaintiff could claim adverse possession arising from the Agreement for Sale.
3. Whether the Plaintiff has met the threshold for grant of orders of adverse possession.
4. Who should bear the costs of this suit?
54. On whether the Plaintiff bought the suit land being CISMARA/OLORROPIL/889, vide the Sale Agreement dated 12th April 1983, the Plaintiff/Applicant submitted that John S. Ole Maitai( deceased), entered unto a Sale Agreement with the Defendant/ Respondent on 12th April 1983; He also submitted that the Defendant indicated his ID number on the sale agreement, signed it, and the Plaintiff made initial payments, and subsequent payments to the Defendant herein, as purchase price.
55. He also submitted that the ID number on the Sale Agreement is identical to that of the Defendant, despite the Defendant denying the contents of the Sale Agreement. He concluded that he was able to prove that the initial Plaintiff( John S. Ole Maitai) had purchased the suit land from the Defendant, and after the purchase collapsed, their occupation of the suit land became adverse to that of the Defendant.
56. On Whether the Plaintiff could claim adverse possession arising from the Agreement for Sale, the Plaintiff/Applicant submitted that upon payment of the full purchase price and possession of the suit property, the purchaser’s occupation becomes adverse to the vendor from the date of the last payment as the vendor’s right is considered extinguished.
57. Reliance was sought in the case of Koros vs. Masanya [2025] KEELC 55598 (KLR), where the Court held that adverse possession can arise out of a sale agreement if nothing subsequent to the sale agreement is in contravention of any law or equity. In the above decision, the Court relied on the case of Gabriel Mbui vs Mukindia Maranya [1993] eKLR, where the court held:
“Where adverse possession arose out of a sale agreement under which the payment of the purchase price by the adverse possessor was by instalments, and the agreement fails, the period of limitation affords an action for adverse possession only after the last and final payment has been made to complete the agreed purchase price. The period of limitation starts to run on the date of payment of the last instalment.”
58. Further reliance was sought in the case of Public Trustee vs. Wanduru, where the court held that adverse possession should be calculated from the date of payment of the purchase price to the full span of 12 years, if the purchaser takes possession of the property because from this date, the true owner is dispossessed of possession.
59. The Plaintiff/Applicant further submitted that he bought the suit property from the Defendant/Respondent, thus dispossessing him of the property upon completing the transaction and taking occupation of the said suit land.
60. On whether the Plaintiff has met the threshold for grant of orders of adverse possession, he submitted that a party claiming adverse possession must demonstrate that he has been in actual, open, notorious, exclusive and continuous occupation of another parcel of land, without permission for a statutory period of 12 years.
61. On the requirement for continuous occupation, he submitted that he has been in occupation of the suit property for over 38 years and over 12 years from the issuance of the title deed in 2007, and that the Defendant evicted them from the suit property as an afterthought and out of malice rendering the family homeless.
62. Further, that the eviction happened after the Defendant/Respondent changed the title deed to include his brother, Paitai; and that a change of ownership of the suit property does not interrupt the 12-year period required for adverse possession as was held in the case of Githu vs Ndeeta [1984] KLR 776.
63. The Plaintiff/Applicant further sought reliance from the case of Douglas Mbugua Mungai vs Harrison Munyi [2019] eKLR where the Court of Appeal held as follows;
“The issue in the Githu case was whether the mere change of ownership of land occupied by another under adverse possession would interrupt such person’s adverse possessions. And the answer was correct that where the person in possession has already begun and is in the course of acquiring rights under section 7 of the Limitations of Actions Act, those rights are overriding interests by virtue of section 30(f) of the RLA, to which the new registered purchaser’s title will be subject.”
64. Further, the Plaintiff/Applicant submitted that he has been in occupation of the suit property for over 38 years, and his claim for adverse possession succeeds under the requirement for continuous occupation.
65. On the requirement for open and visible (notorious) occupation, he submitted that he has complied with the said requirement as evidenced by photographs in his trial bundle, which shows that he has been utilising the suit land for farming, and rearing cattle; and that he leased some portion of the suit property to PW3 who was a neighbour.
66. The Plaintiff/Applicant further submitted that he has been in open occupation of the suit property in exclusion of others including the Defendant who was the previous owner; and that the Defendant/Respondent extinguished his rights over the suit property when the Plaintiff/Applicant made his full payment of the purchase price , and he remained in the suit property, as of right and not with the consent of the suit property.
67. It was the Plaintiffs further submissions that he had met the threshold for acquisition of the suit land through the doctrine of adverse possession, as laid out in the case of Kimani Ruchine vs. Swift Rutherford & Co Ltd [1980] KLR where the court held that:
“The Plaintiffs have to prove that they have used the land which they claim, as of right: nec vi, nec clam, nec precacio… the possession must be continuous. It must not be broken for any temporary purpose or by any endeavours to interrupt it or by any recurrent consideration.”
68. He also relied on the case of Kariuki vs Mica [2025] KECA 31 (KLR), where the Court of Appeal dismissed the Appellant’s appeal for lack of merit, and upheld the decision appealed against, wherein the plaintiff had been allowed to acquire the suit land by way of adverse possession. The Court had held that the Defendant/Respondent did not actually prove that he had given the plaintiff permission to occupy the land.
69. On who should bear the costs of this suit, the Plaintiff/Applicant submitted that the costs of the suit be borne by the Defendant.
70. On his part, the Defendant/Respondent filed his written submissions dated 9th March 2026, through S. Mogere & CO. Advocates, wherein he raised the following issues for determination:
1. Whether the suit was competently instituted by the Amended Origination Summons.
2. Whether the Plaintiff has proved adverse possession under sections 7, 13 and 38 of the Limitations of Actions Act.
3. Whether the Plaintiff’s entry was permissive or hostile.
4. Whether the Plaintiff has demonstrated continuous, exclusive, and uninterrupted occupation for 12 years.
5. Whether the Defendant’s registered title remains indefeasible.
6. Who should bear the costs of this suit.
71. On whether the suit was competently instituted by the Amended Origination Summons, the Defendant/Respondent submitted that the Originating Summons commencing this suit is defective as it is not accompanied by a Supporting Affidavit as required under Order 37 Rule 7 of the Civil Procedure Rules 2010; that the Supporting Affidavit on record is attached to the Notice of Motion Application dated 17th May 2021, none of which is attached to the Originating Summons, rendering the suit incompetent.
72. The Defendant/Respondent further submitted that the Plaintiff /Applicant filed an undated Originating Summons on 14th November 2024, seeking to amend the Originating Summons dated 17th May 2021, which Summons do not raise any questions for determination before the court, and that there is no Supporting Affidavit thus rendering the suit a nullity.
73. He further submitted that a Supporting Affidavit is not a mere formality; that it is the evidentiary foundation of the Summons, which sets out the facts relied upon, and attaches the necessary documents for determination; and that its absence renders the suit incompetent ab initio.
74. Reliance was sought in the case of Kibutiri vs. Kibutiri [1983] KLR, where the Court of Appeal held that where procedure is expressly provided by law, it must be strictly followed and failing to comply renders proceedings incompetent.
75. He further submitted that Article 159 of the Constitution cannot cure such a defect where the Civil Procedure Rules prescribe procedure in mandatory terms. Reliance was sought in the case of Mbira Vs. Gachuhi [2002] 1 EALR 137.
76. On whether the Plaintiff has proved adverse possession under sections 7, 13 and 38 of the Limitation of Action Act, the Defendant submitted as follows; that the claimant must demonstrate occupation that is hostile to the rights of the true owner, exclusive and uninterrupted for at least twelve years; and that the occupation must be inconsistent with the owner’s title and maintained without consent.
77. On the threshold for a claim of adverse possession, the Defendant/Respondent relied on the case Mbira vs. Gachuhi [2002] 1 EALR 137, where the court distilled the principle and stated that:-
“… A person who seeks to acquire title land by adverse possession must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use… for the statutory period without interruption.”
78. The Defendant/Respondent further submitted that the purported sale agreement does not show how many acres of land were purchased, the purchase price and whether it was paid in full; and that none of the Plaintiff’s witnesses could tell how and when the sale agreements were drafted, and how much was paid.
79. He further submitted that permissive entry cannot ripen a claim for adverse possession, and that the Plaintiff/Applicant has not demonstrated that his occupation was adverse to the Defendant’s rights; and that there is no evidence of complete control of the suit property.
80. It was the Defendant/Respondent’s further submissions that the statutory time for adverse possession never begun to run as the occupation was never hostile, and rather it was permissive. He sought reliance from the case of M’Ria vs. Muthomi [2025] KECA, where the Court of Appeal dismissed a similar claim wherein the evidence of occupation was partial and occasional; and that shaky evidence fell short of the threshold for adverse possession.
81. Further reliance was sought in the case of Alfred Welimo vs Mulaa Sumba Barasa, where the court held that mere abandonment or absence of the owner does not establish adverse possession, unless the occupier takes possession with hostile intent and asserts rights inconsistent with the ownership.
82. Further, he submitted that in the present case, the Defendant/Respondent was in continuous use and acts of ownership; and he has never abandoned his land; and that the Plaintiff’s occupation of the same was permissive and not hostile.
83. The Defendant/Respondent further submitted that the Plaintiff/Applicant has never asserted any rights inconsistent with the Defendant’s ownership; that he entered unto the suit property with the Defendant’s permission, relied on the alleged agreements, and never excluded the Defendant/ Respondent from the suit property; and that the Plaintiff/ Applicant has failed to prove adverse possession under Sections 7, 13 and 38 of the Limitations of Actions Act.
84. On whether the Plaintiff’s entry was permissive or hostile, the Defendant/Respondent submitted as follows; That animus possidendi is the heart of adverse possession; that one must enter the land intending to hold it as the owner, asserting rights inconsistent with the true proprietor; which intention must exist at the commencement of possession, and continue for the statutory period.
85. He further submitted that the Plaintiff/Applicant relied on a purported sale agreement whose authenticity is doubtful, and the humanitarian permission by the Defendant/Respondent is not adverse possession, but rather it is permissive occupation.
86. He also relied on the case of Richard Wefwafwa Songoi vs Ben Munyifwa Songoi [2020] eKLR where the court held that:
“… for a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted user of the land. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are important factors…”
87. The Defendant/ Respondent further relied on the Court of Appeal decision in Alfred Welimo vs Mulaa Sumba Barasa where the Court clarified that abandonment by the owner does not automatically confer adverse possession. Further, that the Plaintiff/Applicant never asserted ownership against the Defendant; and that the occupation was never hostile, exclusive nor adverse; and that the Defendant never abandoned his land as he remained in possession, grazing animals, cultivating and reissuing title.
88. Further reliance was sought in the case of M’Ria vs. Muthomi [2025] KECA, where the court observed that exaggerated claims of occupation collapse when evidence shows only partial or occasional use. He also submitted that the Plaintiff’s occupation in this matter is contradicted by the Defendant’s continued use and acts of ownership; and that his occupation was permissive and not hostile.
89. On whether the Plaintiff has demonstrated continuous, exclusive and uninterrupted occupation for 12 years, the Defendant/Applicant submitted as follows: That the issues of continuity and exclusivity are matters of evidence; where the law requires that the occupation be unbroken, consistent and exercise to the exclusion of the true owner; and that any shared use or recognition of the owner’s rights defeats the claim of adverse possession.
90. The Defendant/Respondent also submitted that he has been grazing his animals on the suit land, cultivated crops and remained in use of the said land; and that the title was issued in 2007, and later re-issued in 2021, and extended to his son in 2021. That the acts of ownership are not symbolic and are concrete interruptions to the continued use and occupation of the suit property by the Plaintiff.
91. The Defendant/Respondent also reiterated the Court of Appeals decision in the case of M’Ria vs. Muthomi [2025] KECA, where the Court dismissed a claim for ownership through adverse possession where the evidence showed only partial and occasional use. Further reliance was sought in the case of Richard Wefwafwa Songoi vs Ben Munyifwa Songoi [2020] eKLR, where the court emphasized on the issue of exclusivity; He argued that the Plaintiff’s exclusive occupation of the suit property is absent.
92. The Defendant/Respondent further submitted that the eviction of the Plaintiff/Applicant from the suit property defeats the requirement for continuity; and that if the Plaintiff/ Applicant relies on the Sale Agreement, then his entry into the suit property was consensual.
93. For the above submissions, reliance was sought in the case of Mbia vs Gachuhi [2002] 1 EALR 137, where the court held that occupation must be actual, open, notorious and exclusive. Further, he emphasized the principle that mere abandonment or absence of the owner does not establish adverse possession; a principle that was clearly settled in the case of Alfred Welimo vs Mulaa Sumba Barasa.
94. On whether the Defendant’s registered title remains indefeasible, he submitted as follows: That registration vests absolute ownership in the proprietor, together with all rights and privileges arising thereof; and that a Certificate of title is prima facie evidence of ownership, and that it shall not be defeated except as provided by law. Further, that the Plaintiff/Applicant seeks to dispossess the Defendant/Respondent of his registered title by invoking the doctrine of adverse possession; which claim is riddled with contradictions and fails to meet the strict threshold required to defeat registered ownership.
95. The Defendant/Respondent further submitted that the Plaintiff/Applicant has failed to prove a claim for adverse possession; that the Plaintiff’s alleged occupation of the suit land was permissive and based on an alleged sale agreement, and humanitarian allowance by the Defendant, and therefore the said entry could not amount to adverse possession. Reliance was placed in the case of Wambugu v Njuguna [1983] KLR 172, where the Court held that adverse possession cannot arise from consensual entry and time only begins to run once such permission is repudiated.
96. The Defendant/Respondent further challenged the credibility of the Plaintiff’s evidence, and argued that although PW3 claimed to have leased 12 acres, from the Plaintiff between 2018 and 2022, no lease agreements, photographs of farming activities, receipts for farm inputs, or other documentary proof were produced. The Defendant argued that this evidence was an afterthought intended to bolster weak allegations and unlawfully defeat the Defendant’s registered title.
97. Reliance was also placed in the case of Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR, which emphasized that the rights of a registered proprietor are protected, and that adverse possession must be strictly proved. The Court was urged not to allow sympathy, emotional appeals regarding eviction or destitution, or alleged altered documents to override the statutory protection accorded to registered ownership.
98. Further reliance was sought in the case of Mtana Lewa v Kahindi Ngala Mwagandi [2009] eKLR, where the Court of Appeal clarified that adverse possession protects genuine hostile possession and is not intended to reward permissive occupation or punish acts of kindness and goodwill. Further, the Defendant argued that allowing the Plaintiff to farm on the land as a humanitarian gesture cannot now be converted into a basis for dispossessing the Defendant.
99. The Defendant/Respondent maintained that the Plaintiff’s claim is an afterthought, brought decades after adjudication under the Land Adjudication Act, without any prior objection, and therefore cannot defeat the Defendant’s indefeasible registered title. Further, that the acts of registration and re-issuance of title in 2007, 2020 and 2021 re-affirm ownership and interrupt any alleged occupation.
100. On who should bear the costs of this suit, he submitted that costs follow the event unless the court for good reasons orders otherwise. It was his argument that the Plaintiff/Applicant dragged him to court on a claim that collapses under the weight of law and evidence. He cited the case of Supermarine Handling Services vs Kenya Revenue Authority [2010] eKLR, where the Court of Appeal reaffirmed that costs are awarded to indemnify the successful party for costs incurred in litigation.
101. Similarly, he relied on the case of Party of Independent Candidates of Kenya vs. Mutula Kilonzo & others [2023] eKLR, where the court emphasized that costs are not punitive, rather to ensure that a successful litigant is not left worse off for having defended his rights.
102. The above are the Pleadings of the parties, the adduced evidence, the exhibits produced, the rival written submissions and the cited authorities which this court has read and considered,and renders itself as follows;
103. Having carefully considered the pleadings herein, the oral and documentary evidence tendered by the parties, the rival written submissions, and the applicable law, the following are the issues arising for determination:
1. Whether the suit is competently before the Court.
2. Whether the Plaintiff has proved a claim for adverse possession over parcel No. NAROK/CIS-MARA/OLORROPIL/889.
3. Who should bear the costs of the suit.
104. On the first issue, the Defendant/Respondent challenged the competency of the suit on grounds that the initial Originating Summons and the Amended Originating Summons were not properly supported by any Affidavits as required under Order 37 Rule 7 of the Civil Procedure Rules.
105. The record however demonstrates that the Originating Summons dated 17th May 2021, was accompanied by a Supporting Affidavit sworn on the same date by the original Plaintiff( John S. Ole Maitai). The said Affidavit set out the factual basis of the claim and annexed the documents to be relied upon. Further, upon the death of the original Plaintiff, the current Plaintiff(Topoika Olormaitai) obtained a Grant of Letters of Administration Ad Litem, and was properly substituted in these proceedings through the Amended Originating Summons dated 11th November 2024.
106. The Court is guided by Article 159(2)(d) of the Constitution which obligates courts to administer justice without undue regard to procedural technicalities. The alleged defects raised by the Defendant/Respondent neither occasioned prejudice nor went to the substance of the claim.
107. Further, the court is guided by the provisions of sections 1A, 1B and 3A of the Civil Procedure Act, wherein the court is called upon to advance the Overriding Object of the Act by facilitating the just, proportionate and affordable resolutions of civil disputes before it. Further, the court is obligated to issue orders that are necessary for the end of justice to be met. Again, the ELC practice directions bind this court to administer justice without undue regard to procedural technicalities.
108. With the above guidance of the law, this court finds that omission to annex a Supporting Affidavit to the amended Originating Summons, if any did not go to the root of the suit herein, and did not affect the substance of the claim.
109. The substantive issue for determination herein is whether the Plaintiff/Applicant has established a claim for adverse possession. Therefore, this finds and holds that the suit herein is competently before this Court.
110. The law on adverse possession is now settled. Sections 7, 13 and 38 of the Limitation of Actions Act, provide the legal framework on a claim for adverse possession being; that where a person has occupied land openly, continuously, exclusively and adversely to the title of the registered owner for a period exceeding twelve years, the title of the registered owner can be extinguished, and the adverse possessor becomes entitled to registration as proprietor.
111. In the often-cited case of Wambugu v Njuguna [1983] KLR 172, the Court of Appeal held that adverse possession contemplates two concepts: dispossession of the true owner or discontinuance of possession by the true owner. Similarly, in the case of Mtana Lewa v Kahindi Ngala Mwagandi [2009] eKLR, the Court of Appeal described adverse possession as a situation where a person takes possession of land and asserts rights over it inconsistent with the rights of the true owner.
112. From the evidence before Court, it is not disputed that the Plaintiff /Applicant and his family entered unto the suit property sometime in 1983 or 1984, and remained in occupation thereof for several decades. The Plaintiff/Applicant’s witnesses testified that the land was initially forested, that upon entry thereunto, they cleared it, settled thereon, cultivated it, grazed livestock and established their matrimonial home thereon. PW3, a neighbour, confirmed that the Plaintiff’s family has occupied the suit land for over forty years.
113. The Defendant/Respondent admitted that the Plaintiff’s family indeed occupied the suit property for a long time, although he maintained that such occupation was merely permissive, and founded on humanitarian grounds. The Defendant/Respondent further denied having sold the suit land to the Plaintiff/Applicant herein.
114. The Court has considered the Sale Agreement dated 12th April 1983, produced by the Plaintiff. Although the Defendant/Respondent disputed its authenticity, there was no expert evidence tendered to disprove the thumbprint or identity particulars appearing thereon. In any event, even assuming that the sale agreement was unenforceable for want of compliance with the law governing land transactions, possession taken pursuant to a sale agreement may still crystallize into ownership by adverse possession once the purchaser remains in occupation after completion, and the vendor fails to assert his rights within twelve years.
115. In the case of Public Trustee v Wanduru, the Court held that where a purchaser takes possession after paying the purchase price, time for purposes of adverse possession begins to run from the date of final payment of the last instalment, because the vendor becomes dispossessed. The same principle was reiterated in the case of Gabriel Mbui v Mukindia Maranya [1993] eKLR.
116. The Defendant/Respondent contended that the Plaintiff/Applicant’s occupation was permissive and therefore incapable of giving rise to ownership by adverse possession. However, apart from bare assertions, no evidence was produced to demonstrate the nature, terms or duration of such permission. No licence agreement, demand notices, eviction notices or prior legal proceedings were tendered to show that the Defendant/Respondent indeed exercised proprietary control over the Plaintiff’s occupation before the dispute arose in 2021.
117. On the contrary, the evidence before Court demonstrates long, open and uninterrupted occupation by the Plaintiff’s family, extending well beyond the statutory period of twelve years. The Defendant/Respondent himself admitted that the Plaintiff’s/Applicant’s family had occupied the land for several years. The photographs produced by the Plaintiff/Applicant depicted residential structures and other developments consistent with long-term occupation.
118. The Defendant/Respondent further argued that he has continued to graze his livestock animals and cultivating portions of the land, thereby interrupting the Plaintiff’s possession. However, no cogent evidence was placed before this Court to demonstrate actual and effective interruption of the Plaintiff’/ Applicant’s occupation within the meaning of the law. Mere occasional entry or assertions of ownership are insufficient to interrupt adverse possession unless accompanied by effective dispossession or legal action.
119. This Court is persuaded by the holding of the court in the case of Githu v Ndeete [1984] KLR 776, that change of ownership of land occupied by another person under adverse possession does not interrupt such possession. Accordingly, the inclusion of DW2 as co-proprietor in 2021, did not defeat rights that had already accrued in favour of the Plaintiff/Applicant herein long before that date.
120. Indeed, by the Defendant/Respondent’s own evidence, the title to the suit property was first issued in 2007, and by the time this suit was instituted in 2021, the Plaintiff/ Applicant’s family had already occupied the land openly and continuously for well over twelve years from the date of registration. Even if the court was to start computing time from 2007, the statutory period had fully accrued by the year 2019.
121. The Court therefore finds and holds that the Plaintiff/Applicant has proved, on a balance of probabilities, that his occupation of the suit property was open, notorious, exclusive, continuous and adverse to the Defendant’s title for a period exceeding twelve years.
122. Consequently, this court finds and holds that the Defendant/Respondent ’s title over the portion measuring 8.21 hectares comprised in parcel No. NAROK/CIS-MARA/OLORROPIL/889, was extinguished by operation of law under Section 17 of the Limitation of Actions Act.
123. On who should bear costs of the suit, the Court finds that Section 27 of the Civil Procedure Act provides that costs follow the event unless the Court for good reason orders otherwise, and that costs are ordinarily awarded to the successful litigant. The Plaintiff/Applicant has succeeded in his claim and there is no reason to depart from the general principle.
124. Consequently, the court finds and holds that the Plaintiff/Applicant herein has proved his case on the required standard of balance of probabilities. Therefore, the end result is that Judgment is hereby entered for the Plaintiff/Applicant against the Defendant/Respondent in the following terms:
a. A declaration be and is hereby issued that the Plaintiff/Applicant has acquired title by adverse possession over all that parcel of land known as NAROK/CIS-MARA/OLORROPIL/889, measuring approximately 8.21 hectares.
b. The rights and interests of the Defendant/Respondent over parcel No. NAROK/CIS-MARA/OLORROPIL/889, are hereby extinguished to the extent of the Plaintiff’s entitlement.
c. An order be and is hereby issued directing the Land Registrar, Narok, to register the Plaintiff/Applicant, namely Topoika Olormaitai, suing as the personal representative of the estate of John S. Ole Maitai, as proprietor of parcel No. NAROK/CIS-MARA/OLORROPIL/889, in place of the Defendant.
d. In default of execution of the necessary transfer documents by the Defendant/Respondent, the Deputy Registrar of this Court shall execute all documents necessary to effect the transfer and registration.
e. A permanent injunction be and is hereby issued restraining the Defendant, his agents, servants or anybody claiming under him from entering upon, interfering with, alienating or in any manner dealing with parcel No. NAROK/CIS-MARA/OLORROPIL/889, adverse to the Plaintiff’s rights.
f. Costs of this suit are awarded to the Plaintiff.
It is so ordered.
Dated, Signed and Delivered Virtually at Narok this 4th Day of June .2026.
L. Gacheru
Judge
4/06/2026
Delivered Online in the Presence of
Elijah Meyoki - Court Assistant
Ms Chepkemoi H/B for Ms Martim for the Plaintiffs/Applicant
Ms Mogere for the Defendant/Respondent
| ELC NO. O.S. E006 OF 2021 (O.S) Page 36 of 36 |