1. The applicant herein took up the Originating Summons dated 19th April 2023 for determination of the question as to whether he has acquired title to a portion of land measuring 1 acre comprised in the parcel of land known as L.R No. South Teso/Amakura/2257 (suit property) by virtue of having been in adverse possession thereof.
2. In support of the Originating Summons, the applicant swore an affidavit in which he has deponed that he is the registered proprietor of the suit property; that his interest in the suit property is on account of inheritance of the estate of the late Joseph Omoding Edokete which was transmitted to him vide Succession Cause Number E251 of 2022; that in 2008, he bought a portion of the suit property measuring 1 acre from Sabensia Omuse Karani, who is the interested party herein; that the purchase price was to be paid in two instalments; that he took possession of the portion of the suit property he bought upon payment of the 1st instalment of the purchase price and that he had been in possession of the portion he bought for a period exceeding twelve years.
3. The applicant points out that at the time he purchased the portion of the suit property he claims and took possession thereof, the registered owner of the suit property was deceased and laments that the person who sold the land to him, Sabencia Omuse Karani, who was the apparent heir thereof, was dislodged from succeeding her father’s estate by the respondent, who is a distant relative. The applicant further laments that upon being appointed as the administrator of the Estate of the deceased, the respondent failed to recognize his interest in the suit property as a bona fide purchaser of a portion thereof.
4. Explaining that the respondent has not dispossessed him of his portion of the suit property and claiming that he had acquired the portion he bought on account of having been in adverse possession thereof, the applicant filed the instant suit seeking the following orders:-
a) A declaration that he (the applicant) has acquired title of a portion of land measuring 1 acre of LR NO. SOUTH/TESO/AMUKURA/2257;
b) An order compelling the respondent to sign all the necessary land transfer documents in his favour and in default the Deputy Registrar of this court to do so;
c) An order condemning the respondent to pay costs.
5. In reply and opposition to the application, the respondent filed a replying affidavit in which he depones that he is the sole registered owner of the suit property; that he has been living in the suit property together with the interested party since he was registered as the proprietor of the suit property; that the applicant’s claim to entitlement of the suit property is false and that the applicant and another person, Felly Odongo Ogwori, had filed a similar suit vide Busia ELC E022 of 2022 raising the same claim, which is false.
6. Maintaining that the applicant’s suit is premised on falsehoods, the respondent urges this court to dismiss it with costs to him.
7. Pursuant to directions given to the effect that the suit be heard by way of viva voce evidence, the applicant availed three witness, himself included, who testified in support his case. The applicant also produced the sale agreement executed between him and the interested party and another person, Joseph Abonyo Omodia as Pexbt 2.
8. The applicant and his witnesses informed the court that the applicant had been living in the portion of the suit property he claims since 2008; that the applicant’s use and possession of the portion he is claiming was peaceful and that disputes regarding the portion only arose in 2022.
9. The respondent relied on his replying affidavit after it adopted as his evidence in chief. He informed the court that currently, the suit property is occupied by his parents and him.
10. In cross examination, the respondent stated that he was registered as the proprietor of the suit property in 2021; that previously, the suit property was registered in the name of his grandfather and that the interested party who is his father’s sister, cultivates on the suit property but does not live there.
11. At close of hearing, the applicant filed submissions dated 14th April, 2026 on 17th April, 2026 and the respondent filed his on 14th April, 2026 dated 10th March, 2026 which I have read and considered.
12. As pointed out herein above, the applicant’s claim stems from a purchase agreement executed between himself and the interested party herein and another in 2008. In his submissions, the applicant admits/acknowledges that the person who sold the portion of the suit property he claims, had no legal capacity to sell it to him as at the time of the purported sale, the suit property constituted part of an un administered Estate of a deceased person. The foregoing notwithstanding, the applicant contends that his occupation of the suit land was adverse to the interest of the estate of the deceased as adverse possession attaches to the land as opposed to the title.
13. On his part, the respondent contends that the dealings with the suit property by the applicant amounted to intermeddling with the Estate of a deceased person hence incapable of forming the basis of the applicant’s claim for adverse possession.
14. I have considered the originating summons, the responses and the evidence and l find the sole issue for the court’s determination is whether the applicant can maintain his claim for adverse possession of a portion of the suit property given that his use and possession of it by operation of law, particularly Section 45 of the Law of Succession Act, Cap 160 Laws of Kenya, amounted to intermeddling with the estate of a deceased person.
15. In answering that question, I place reliance on the case of Odera v Were Civil Appeal No. E041 of 2024 2025 KECA where the Court of appeal held that an individual cannot claim adverse possession over an un administered estate if his claim stems from a void sale agreement.
16. The circumstances of this case being similar to those in Odera v Were (supra), I find and hold that the applicant cannot sustain his claim for adverse possession in the circumstances of this case because his entry to the suit property in 2008 amounted to intermeddling with the Estate of a deceased person hence incapable of forming the basis for his claim for adverse possession.
17. The upshot of the foregoing is that I find the suit to be lacking in merit and dismiss it.
18. On costs, being of the view that it would be inequitable to condemn the applicant to pay the costs of the suit in the circumstances of this case where he has lost his interest in the portion of the suit property sold to him by the interested party on account of the strictures of the law, I decline to condemn him to meet the costs of the suit and direct that parties bear their own costs of the suit.
19. Orders accordingly.
Judgement dated, signed and delivered at Busia this 20th day of May, 2026
In the presence of;-
N/A for the Applicant
Ms. Juma h/b for Mr Okutta for the Respondents and Interested Party
Court Assistant: Tracy