Introduction
1. Vide the Originating Summons dated 14 th February 2025, PATRICK SAKWA KADUKHA, the Plaintiff/Applicant herein, who claims to be entitled to be declared proprietor of a portion measuring 0.23 Ha of land parcel number KAKAMEGA/CHEPTULU/166 by virtue of adverse possession, sought the Court to determine and order that:
1) The applicant be declared the proprietor of a portion measuring 0.23 Ha of land parcel No. KAKAMEGA/CHEPTULU/166 which he has occupied openly, exclusively, continuously and without interruption from 2008 to date, for a period of over 12 years.
2) The applicant has acquired a bona fide title of a portion measuring 0.23 Ha of land parcel number KAKAMEGA/CHEPTULU/166 by adverse possession.
3) The applicant is entitled to be registered as the proprietor of a portion of parcel number KAKAMEGA/CHEPTULU/166 measuring 0.23 Ha.
4) The defendant be ordered to subdivide and transfer the 0.23 Ha portion of parcel number KAKAMEGA/CHEPTULU/166.
5) In default of the defendant to transfer the portion of the suit land to the applicant, the Deputy Registrar be ordered to execute all necessary documents to effect the transfer of 0.23 Ha of the suit parcel number KAKAMEGA/CHEPTULU/166 from the registered owner to the applicant.
6) The Defendant be restrained from entering, wasting, damaging and/or in any way alienating the whole of the suit parcel no. KAKAMEGA/CHEPTULU/166 until the hearing and determination of this matter
7) The costs of this suit be awarded to the Plaintiff/Applicant.
2. The Plaintiff’s case was that he moved into and constructed a house and started farming on a portion of land parcel number KAKAMEGA/CHEPTULU/166 (herein known as the suit land) in the year 2008. That he has been in quiet, exclusive possession and occupation of the said portion of the suit land in its entirety for a period exceeding 12 years to date and has therefore acquired title by adverse possession. That his occupation of the land has been continuous and with the defendant’s knowledge, and he is therefore entitled to be registered as proprietor of the said 0.23 Ha of the suit land.
3. JOHNSTONE IREKWA MUDASHI, the Defendant/Respondent, sued as Administrator of the Estate of MAMURA SESI, responded to the Plaintiff/applicant’s claim vide the Replying Affidavit which he swore on 6 th March 2025 and the annexures thereto. The Defendant/Respondent also filed a Notice of Preliminary Objection dated 5 th March 2025 which was heard and dismissed vide the Ruling delivered on 12 th June 2025. The Defendant /Respondent denied that the Plaintiff had been in continuous, open and uninterrupted possession of the suit property for a period exceeding 12 years. He averred that the suit was res judicata and that it offends the doctrine of multiplicity of suits as there exists a court order of temporary injunction restraining the plaintiff/applicant from dealing in or trespassing onto the suit land in Vihiga HCFP & A 103 of 2021.
4. Vide directions given on 12/6/2025, the Originating Summons was treated as plaint, and the Replying Affidavit as defence, and the matter was ordered to proceed by way of viva voce evidence.
The Plaintiff/Applicant’s evidence
5. The Plaintiff/Applicant testified as PW1. He called 4 witnesses. He adopted the contents of his witness statement dated 8/1/2025 as his evidence in chief. He had stated in the witness statement, inter alia, that he was in occupation of a portion measuring 0.23 Ha of the suit land, which he bought from Pius Muhalia in 2008. That Pius Muhalia was a beneficial owner of the land. That the registered owner was one Mamira Sesi, now deceased, and the Administrator of his estate was Andrea Mutashi. He stated that before occupation of the land, he erected a house and planted trees and occupied it openly to the full knowledge of the estate and beneficiaries of Mamira Sesi.
6. That when succession proceedings to the estate of Mamira Sesi began in 2017, he was included as one of the beneficiaries as he was entitled to the land he was in occupation of. He stated further that he filed an objection in the Succession case, which was dismissed because he was not a beneficiary. That, however, nobody evicted him from the land and that he has been working thereon without interruption from anyone. That the local administration knows him as the owner of the land. That he has lived and has been farming the land for over 12 years, until he filed the present proceedings.
7. The plaintiff produced 10 exhibits as listed in the list of documents dated 8/7/2025; namely copies of proceedings of the Land Tribunal, copies of agreements, photographs, copy of survey report, Mutation forms, National Identity Card and KRA PIN, Land Control Board consent and application form, Consent on mode of distribution, Chief's letters dated 26th January 2022 and 9th December 2022 and Transfer forms.
8. On cross-examination, the plaintiff stated that he was given permission by one Pius Muhalia to enter the land, that he was on the land because he bought it from Pius Muhalia, and that nobody has interfered with his occupation since he entered the land in the year 2008.
9. PW2 adopted the contents of his witness statement dated 8/7/2025 as his evidence in chief. He testified that he knew the history of the suit land. That the suit land belonged to Pius Muhalia, in whose favour the land had been adjudicated by the Tribunal. That sometime in the year 2008, the plaintiff purchased the land from Pius Muhalia, built a house thereon, planted trees, and has been living and working on the land without any interruption from the children of Mamira Sesi, deceased. On cross-examination, PW2 stated that the plaintiff lives near Cheptulu, but farms the suit land, and has built a house thereon.
10. PW3 testified through his Affidavit sworn on 13 th February 2025 that he was a grandson of Mamira Sesi, deceased, the registered owner of the suit land, and that he lives on a portion of the suit land which borders the portion occupied by the plaintiff. He testified that the plaintiff had been farming the said portion for more than 12 years, exclusively, freely and openly and without any interference. That he had always considered the plaintiff as the owner of the land. On cross-examination, PW3 stated that the plaintiff was their neighbour because he bought land from Pius.
11. PW4 adopted his Affidavit sworn on 3rd March 2025as his evidence. He stated that the plaintiff had been in occupation of the suit land since 2008. On cross-examination, he stated that the suit land was registered in the name of Daudi Mamira Sesi, who died, and that succession in respect of his estate was ongoing and that there was no confirmed Grant of Letters of Administration yet.
12. PW5 adopted the contents of his Affidavit sworn on 13th February 2022 where he had stated that the plaintiff had been farming a portion of the suit land for more than 12 years. On cross-examination, PW5 stated that the plaintiff does not stay on the suit land with his family. PW5 stated that the plaintiff was permitted by the then administrator of the deceased's estate, Andrea Mundashi, to enter the suit land. That he found the plaintiff was already settled on the land and he did not know how the plaintiff entered the land.
The Defendant/Respondent’s evidence
13. DW1 was the Defendant. He relied on the contents of his Supporting Affidavit sworn on 6th March 2025 as his evidence in chief. He stated that he is the administrator of the deceased's estate. That it was not true that the plaintiff had been in continuous, open and uninterrupted possession of the suit property for a period exceeding 12 years. That the suit was premature since no Grant had been confirmed. That if the plaintiff has been on the land, then the occupation had been with his permission and with his knowledge and therefore not adverse.
14. He contended that the court lacks the jurisdiction to entertain the suit on the principle of res judicata as the matters in dispute had been heard and decided on in Kakamega High Court Succession Cause No. 266 of 1994 in a ruling dated 19th April 2021. That the suit offends the doctrine of multiplicity of suits as there exists a court order in Vihiga H.C Succ. C. No. HCFP & A 103/2021 in which there exists an order of temporary injunction against the plaintiff. That the Originating Summons offends the provisions of Order 37 Rule 7 of the Civil Procedure Rules.
15. DW1 produced the documents attached to the Supporting Affidavit as exhibits, namely the Grant of Letters of Administration Intestate. On Cross-examination, DW1 stated that the 1st Grant of Letters of Administration in respect of the estate of Mamira Sesi was made in 1994 in the Succession Cause at Kakamega. That his father was the Administrator. Before Vihiga HC Succ. C. No. 103 of 2021, the case was at Kakamega High Court. That as per Exhibit P.8, the plaintiff had been given 0.23 Ha of the suit land. That the plaintiff did not have the deceased’s permission to come to the land.
16. DW2 adopted the contents of her witness Statement dated 31/1/2025 as her evidence-in-chief. On Cross-examination, DW2 stated that it was the plaintiff working on the land. That the portion occupied by the plaintiff is the same one Muhalia occupied. DW3 also adopted the contents of his witness Statement as his evidence-in-chief. On cross-examination, he stated that he had been seeing the plaintiff working on the suit land.
Submissions
17. Written submissions dated 10 th April 2025 were filed by P. D. Onyango & Company Advocates on behalf of the Plaintiff, while written submissions dated 15th April 2025 were filed by B. Lusweti & Associates Advocates on behalf of the Defendant.
Issues for determination
18. From the pleadings filed, the evidence adduced and the submissions made, I find that the following emerge as the issues for determination herein:
a) whether or not the suit is properly before the court or was filed prematurely in view of the existence of VIHIGA HC HCFP & A No 103 of 2021 still pending determination.
b) whether the plaintiff has proved adverse possession.
c) Costs.
Analysis and determination
The first issue for determination is whether or not the suit is properly before the court or whether the same is premature in view of the doctrine of multiplicity of suits, as there exists a court order in Vihiga HCFP&A 103/ 2021.
19. It was submitted on behalf of the Defendant on this issue that the suit was filed prematurely as the succession proceedings in respect of the suit property remained pending and unconfirmed. Counsel relied on the case of Benson Owiti Ogutu vs Anne Wangari Kirima ( as administrato r) and John Gerishon Kirima, EHC Nairobi No. 1 of 2023, to support the submission. Counsel also relied on the ruling in Vihiga HCFP&A No 103 of 2021 and Section 55 (1) of the Law of Succession Act.
20. That the issues sought to be raised in the Originating Summons have, in material respect, been ventilated and determined in previous proceedings, namely Kakamega H.C. Succession Cause No. 266 of 1994 wherein the trial Court struck out the Plaintiff's Affidavit of Protest and directed him to seek redress in the appropriate forum. That the plaintiff, having been directed so, filed the present suit. Counsel submitted that the finding of fact that the vendor was an intermeddler and acquired no right was directly and substantially in issue in those proceedings between the same parties, before a court of competent jurisdiction, and that the same was heard and finally decided. That the Plaintiff therefore offends the provisions of Section 7 of the Civil Procedure Act in attempting to re-litigate the same issue. Counsel relied on the case of John Florence Maritime Services Ltd & Another -vs Cabinet Secretary for Transport and Infrastructure & 3 others eKLR to support the submission.
21. On behalf of the Plaintiff, it was submitted that Kakamega Succession Cause No. 266 of 1994 was not about occupation of the suit land. That the court directed the applicant to file his claim in the 21. right forum. That the injunctive orders in case No. 103 of 2021 (Vihiga HCFP&A 103/2021) were issued ex parte with material non-disclosure, which led to the orders not being extended.
22. I have considered the pleadings, the evidence and submissions. The issue of whether the suit is res judicata was already decided by the court herein vide the Ruling dated 12th June 2025, where the court found that the issues in the two matters (the Succession Cause and the suit herein) were different. The Succession Cause seeks to determine the beneficiaries and their respective shares, if any, of the estate of the deceased. An attempt by the Plaintiff/ applicant to be included as a beneficiary of the estate was struck out vide the ruling of the High Court in Kakamega Succ. C. No. 266 of 1994, and the Plaintiff/ applicant directed by the court to file suit in the right forum, which is the Environment and Land Court. The Plaintiff therefore filed the present suit wherein he seeks to be declared owner of a portion of the suit land which is part of the estate of the deceased by reason of adverse possession.
23. My understanding is that if this court finds that the plaintiff is so entitled to a portion of the suit land, then he ought to be included as a beneficiary in the distribution of the estate of the deceased in the Succession cause. The issues in this suit are therefore severable from the matters before the Succession Court for purposes of determining the claim based on adverse possession. I find that the claim herein is not premature and that the suit is properly before this court.
The second issue for determination is whether or not the plaintiff has proved adverse possession.
24. The plaintiff's evidence on how he entered the suit land was that upon purchase of the land, the seller, one Pius Muhalia, permitted him to enter the land in the year 2008. None of the parties exhibited evidence on the registered owner of the suit land as at 2008. But it was common ground that the suit land has always been registered in the name of Mamira Sesi, deceased. The ruling issued by the High Court in Kakamega Succ. cause No. 266 of 1994 in respect of the estate of Mamira Sesi, deceased, indicates that Mamira Sesi died on 6th March 1973, intestate. It is also acknowledged that to date the estate of Mamira Sesi is yet to be distributed. This means that, at the time of the alleged purchase of the suit land by the plaintiff, the registered owner was deceased.
25. The Court in Kakamega Succ. case No. 266 of 1994, held that creditors recognized as having a valid claim against the estate of a deceased person are those who transacted with the deceased, and that their claims would be treated in law as surviving the deceased and enforceable against the estate. The court held further that to the extent that the Protester (the plaintiff herein) purported to buy the property after the death of the deceased and from a person other than the administrator of the estate, it would follow by dint of section 45 of the Law of Succession Act that his conduct amounted to intermeddling with the estate of a deceased person, which is an offence under that provision.
26. The plaintiff's case was that the seller, one Pius, had a beneficial interest in the land and that he had won a case in the Tribunal over the land. However, no evidence was exhibited that the proceedings were against the estate of the deceased and that the seller thereby acquired rights over the suit land.
27. The law expects the registered owner to act and assert his title within 12 years from the date of the applicant’s entry onto the suit land pursuant to the provisions of sections 7, 13 and 17 of the Limitation of Actions Act. So that time starts to run in favour of the trespasser and against the registered owner from the date of the trespasser’s entry onto the suit land. It is acknowledged that the registered owner was, however, deceased at the time of purchase of and entry onto the land. Time could not run against the deceased. The Law of Succession Act protects the property of deceased persons and prohibits any kind of handling of such property except in accordance with the provisions of that law. See sections 2, 45, 79, 80 and 82 thereof.
Under section 45, any such handling of property of a deceased person amounts to the offence of intermeddling.
Where the adverse possessor enters the land after the death of the registered owner, time does not start to run for so long as the land is still registered in the name of the deceased. I find that the alleged purchase of, entry onto, stay on, and development of the suit land by the plaintiff were all acts of intermeddling with the estate of the deceased in terms of section 45 of the Law of Succession Act.
I find that the plaintiff has not proved his case on a balance of probabilities.
The suit is dismissed.
Each party to bear its own costs of the suit.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered virtually this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang- Court Assistant.
Bagada for the Plaintiff.
Mudiri for the Defendant.
elcl (os) e004 of 2025 JUDGEMENT Page 2
1. Vide the Originating Summons dated 14 th February 2025, PATRICK SAKWA KADUKHA, the Plaintiff/Applicant herein, who claims to be entitled to be declared proprietor of a portion measuring 0.23 Ha of land parcel number KAKAMEGA/CHEPTULU/166 by virtue of adverse possession, sought the Court to determine and order that:
1) The applicant be declared the proprietor of a portion measuring 0.23 Ha of land parcel No. KAKAMEGA/CHEPTULU/166 which he has occupied openly, exclusively, continuously and without interruption from 2008 to date, for a period of over 12 years.
2) The applicant has acquired a bona fide title of a portion measuring 0.23 Ha of land parcel number KAKAMEGA/CHEPTULU/166 by adverse possession.
3) The applicant is entitled to be registered as the proprietor of a portion of parcel number KAKAMEGA/CHEPTULU/166 measuring 0.23 Ha.
4) The defendant be ordered to subdivide and transfer the 0.23 Ha portion of parcel number KAKAMEGA/CHEPTULU/166.
5) In default of the defendant to transfer the portion of the suit land to the applicant, the Deputy Registrar be ordered to execute all necessary documents to effect the transfer of 0.23 Ha of the suit parcel number KAKAMEGA/CHEPTULU/166 from the registered owner to the applicant.
6) The Defendant be restrained from entering, wasting, damaging and/or in any way alienating the whole of the suit parcel no. KAKAMEGA/CHEPTULU/166 until the hearing and determination of this matter
7) The costs of this suit be awarded to the Plaintiff/Applicant.
2. The Plaintiff’s case was that he moved into and constructed a house and started farming on a portion of land parcel number KAKAMEGA/CHEPTULU/166 (herein known as the suit land) in the year 2008. That he has been in quiet, exclusive possession and occupation of the said portion of the suit land in its entirety for a period exceeding 12 years to date and has therefore acquired title by adverse possession. That his occupation of the land has been continuous and with the defendant’s knowledge, and he is therefore entitled to be registered as proprietor of the said 0.23 Ha of the suit land.
3. JOHNSTONE IREKWA MUDASHI, the Defendant/Respondent, sued as Administrator of the Estate of MAMURA SESI, responded to the Plaintiff/applicant’s claim vide the Replying Affidavit which he swore on 6 th March 2025 and the annexures thereto. The Defendant/Respondent also filed a Notice of Preliminary Objection dated 5 th March 2025 which was heard and dismissed vide the Ruling delivered on 12 th June 2025. The Defendant /Respondent denied that the Plaintiff had been in continuous, open and uninterrupted possession of the suit property for a period exceeding 12 years. He averred that the suit was res judicata and that it offends the doctrine of multiplicity of suits as there exists a court order of temporary injunction restraining the plaintiff/applicant from dealing in or trespassing onto the suit land in Vihiga HCFP & A 103 of 2021.
4. Vide directions given on 12/6/2025, the Originating Summons was treated as plaint, and the Replying Affidavit as defence, and the matter was ordered to proceed by way of viva voce evidence.
The Plaintiff/Applicant’s evidence
5. The Plaintiff/Applicant testified as PW1. He called 4 witnesses. He adopted the contents of his witness statement dated 8/1/2025 as his evidence in chief. He had stated in the witness statement, inter alia, that he was in occupation of a portion measuring 0.23 Ha of the suit land, which he bought from Pius Muhalia in 2008. That Pius Muhalia was a beneficial owner of the land. That the registered owner was one Mamira Sesi, now deceased, and the Administrator of his estate was Andrea Mutashi. He stated that before occupation of the land, he erected a house and planted trees and occupied it openly to the full knowledge of the estate and beneficiaries of Mamira Sesi.
6. That when succession proceedings to the estate of Mamira Sesi began in 2017, he was included as one of the beneficiaries as he was entitled to the land he was in occupation of. He stated further that he filed an objection in the Succession case, which was dismissed because he was not a beneficiary. That, however, nobody evicted him from the land and that he has been working thereon without interruption from anyone. That the local administration knows him as the owner of the land. That he has lived and has been farming the land for over 12 years, until he filed the present proceedings.
7. The plaintiff produced 10 exhibits as listed in the list of documents dated 8/7/2025; namely copies of proceedings of the Land Tribunal, copies of agreements, photographs, copy of survey report, Mutation forms, National Identity Card and KRA PIN, Land Control Board consent and application form, Consent on mode of distribution, Chief's letters dated 26th January 2022 and 9th December 2022 and Transfer forms.
8. On cross-examination, the plaintiff stated that he was given permission by one Pius Muhalia to enter the land, that he was on the land because he bought it from Pius Muhalia, and that nobody has interfered with his occupation since he entered the land in the year 2008.
9. PW2 adopted the contents of his witness statement dated 8/7/2025 as his evidence in chief. He testified that he knew the history of the suit land. That the suit land belonged to Pius Muhalia, in whose favour the land had been adjudicated by the Tribunal. That sometime in the year 2008, the plaintiff purchased the land from Pius Muhalia, built a house thereon, planted trees, and has been living and working on the land without any interruption from the children of Mamira Sesi, deceased. On cross-examination, PW2 stated that the plaintiff lives near Cheptulu, but farms the suit land, and has built a house thereon.
10. PW3 testified through his Affidavit sworn on 13 th February 2025 that he was a grandson of Mamira Sesi, deceased, the registered owner of the suit land, and that he lives on a portion of the suit land which borders the portion occupied by the plaintiff. He testified that the plaintiff had been farming the said portion for more than 12 years, exclusively, freely and openly and without any interference. That he had always considered the plaintiff as the owner of the land. On cross-examination, PW3 stated that the plaintiff was their neighbour because he bought land from Pius.
11. PW4 adopted his Affidavit sworn on 3rd March 2025as his evidence. He stated that the plaintiff had been in occupation of the suit land since 2008. On cross-examination, he stated that the suit land was registered in the name of Daudi Mamira Sesi, who died, and that succession in respect of his estate was ongoing and that there was no confirmed Grant of Letters of Administration yet.
12. PW5 adopted the contents of his Affidavit sworn on 13th February 2022 where he had stated that the plaintiff had been farming a portion of the suit land for more than 12 years. On cross-examination, PW5 stated that the plaintiff does not stay on the suit land with his family. PW5 stated that the plaintiff was permitted by the then administrator of the deceased's estate, Andrea Mundashi, to enter the suit land. That he found the plaintiff was already settled on the land and he did not know how the plaintiff entered the land.
The Defendant/Respondent’s evidence
13. DW1 was the Defendant. He relied on the contents of his Supporting Affidavit sworn on 6th March 2025 as his evidence in chief. He stated that he is the administrator of the deceased's estate. That it was not true that the plaintiff had been in continuous, open and uninterrupted possession of the suit property for a period exceeding 12 years. That the suit was premature since no Grant had been confirmed. That if the plaintiff has been on the land, then the occupation had been with his permission and with his knowledge and therefore not adverse.
14. He contended that the court lacks the jurisdiction to entertain the suit on the principle of res judicata as the matters in dispute had been heard and decided on in Kakamega High Court Succession Cause No. 266 of 1994 in a ruling dated 19th April 2021. That the suit offends the doctrine of multiplicity of suits as there exists a court order in Vihiga H.C Succ. C. No. HCFP & A 103/2021 in which there exists an order of temporary injunction against the plaintiff. That the Originating Summons offends the provisions of Order 37 Rule 7 of the Civil Procedure Rules.
15. DW1 produced the documents attached to the Supporting Affidavit as exhibits, namely the Grant of Letters of Administration Intestate. On Cross-examination, DW1 stated that the 1st Grant of Letters of Administration in respect of the estate of Mamira Sesi was made in 1994 in the Succession Cause at Kakamega. That his father was the Administrator. Before Vihiga HC Succ. C. No. 103 of 2021, the case was at Kakamega High Court. That as per Exhibit P.8, the plaintiff had been given 0.23 Ha of the suit land. That the plaintiff did not have the deceased’s permission to come to the land.
16. DW2 adopted the contents of her witness Statement dated 31/1/2025 as her evidence-in-chief. On Cross-examination, DW2 stated that it was the plaintiff working on the land. That the portion occupied by the plaintiff is the same one Muhalia occupied. DW3 also adopted the contents of his witness Statement as his evidence-in-chief. On cross-examination, he stated that he had been seeing the plaintiff working on the suit land.
Submissions
17. Written submissions dated 10 th April 2025 were filed by P. D. Onyango & Company Advocates on behalf of the Plaintiff, while written submissions dated 15th April 2025 were filed by B. Lusweti & Associates Advocates on behalf of the Defendant.
Issues for determination
18. From the pleadings filed, the evidence adduced and the submissions made, I find that the following emerge as the issues for determination herein:
a) whether or not the suit is properly before the court or was filed prematurely in view of the existence of VIHIGA HC HCFP & A No 103 of 2021 still pending determination.
b) whether the plaintiff has proved adverse possession.
c) Costs.
Analysis and determination
The first issue for determination is whether or not the suit is properly before the court or whether the same is premature in view of the doctrine of multiplicity of suits, as there exists a court order in Vihiga HCFP&A 103/ 2021.
19. It was submitted on behalf of the Defendant on this issue that the suit was filed prematurely as the succession proceedings in respect of the suit property remained pending and unconfirmed. Counsel relied on the case of Benson Owiti Ogutu vs Anne Wangari Kirima ( as administrato r) and John Gerishon Kirima, EHC Nairobi No. 1 of 2023, to support the submission. Counsel also relied on the ruling in Vihiga HCFP&A No 103 of 2021 and Section 55 (1) of the Law of Succession Act.
20. That the issues sought to be raised in the Originating Summons have, in material respect, been ventilated and determined in previous proceedings, namely Kakamega H.C. Succession Cause No. 266 of 1994 wherein the trial Court struck out the Plaintiff's Affidavit of Protest and directed him to seek redress in the appropriate forum. That the plaintiff, having been directed so, filed the present suit. Counsel submitted that the finding of fact that the vendor was an intermeddler and acquired no right was directly and substantially in issue in those proceedings between the same parties, before a court of competent jurisdiction, and that the same was heard and finally decided. That the Plaintiff therefore offends the provisions of Section 7 of the Civil Procedure Act in attempting to re-litigate the same issue. Counsel relied on the case of John Florence Maritime Services Ltd & Another -vs Cabinet Secretary for Transport and Infrastructure & 3 others eKLR to support the submission.
21. On behalf of the Plaintiff, it was submitted that Kakamega Succession Cause No. 266 of 1994 was not about occupation of the suit land. That the court directed the applicant to file his claim in the 21. right forum. That the injunctive orders in case No. 103 of 2021 (Vihiga HCFP&A 103/2021) were issued ex parte with material non-disclosure, which led to the orders not being extended.
22. I have considered the pleadings, the evidence and submissions. The issue of whether the suit is res judicata was already decided by the court herein vide the Ruling dated 12th June 2025, where the court found that the issues in the two matters (the Succession Cause and the suit herein) were different. The Succession Cause seeks to determine the beneficiaries and their respective shares, if any, of the estate of the deceased. An attempt by the Plaintiff/ applicant to be included as a beneficiary of the estate was struck out vide the ruling of the High Court in Kakamega Succ. C. No. 266 of 1994, and the Plaintiff/ applicant directed by the court to file suit in the right forum, which is the Environment and Land Court. The Plaintiff therefore filed the present suit wherein he seeks to be declared owner of a portion of the suit land which is part of the estate of the deceased by reason of adverse possession.
23. My understanding is that if this court finds that the plaintiff is so entitled to a portion of the suit land, then he ought to be included as a beneficiary in the distribution of the estate of the deceased in the Succession cause. The issues in this suit are therefore severable from the matters before the Succession Court for purposes of determining the claim based on adverse possession. I find that the claim herein is not premature and that the suit is properly before this court.
The second issue for determination is whether or not the plaintiff has proved adverse possession.
24. The plaintiff's evidence on how he entered the suit land was that upon purchase of the land, the seller, one Pius Muhalia, permitted him to enter the land in the year 2008. None of the parties exhibited evidence on the registered owner of the suit land as at 2008. But it was common ground that the suit land has always been registered in the name of Mamira Sesi, deceased. The ruling issued by the High Court in Kakamega Succ. cause No. 266 of 1994 in respect of the estate of Mamira Sesi, deceased, indicates that Mamira Sesi died on 6th March 1973, intestate. It is also acknowledged that to date the estate of Mamira Sesi is yet to be distributed. This means that, at the time of the alleged purchase of the suit land by the plaintiff, the registered owner was deceased.
25. The Court in Kakamega Succ. case No. 266 of 1994, held that creditors recognized as having a valid claim against the estate of a deceased person are those who transacted with the deceased, and that their claims would be treated in law as surviving the deceased and enforceable against the estate. The court held further that to the extent that the Protester (the plaintiff herein) purported to buy the property after the death of the deceased and from a person other than the administrator of the estate, it would follow by dint of section 45 of the Law of Succession Act that his conduct amounted to intermeddling with the estate of a deceased person, which is an offence under that provision.
26. The plaintiff's case was that the seller, one Pius, had a beneficial interest in the land and that he had won a case in the Tribunal over the land. However, no evidence was exhibited that the proceedings were against the estate of the deceased and that the seller thereby acquired rights over the suit land.
27. The law expects the registered owner to act and assert his title within 12 years from the date of the applicant’s entry onto the suit land pursuant to the provisions of sections 7, 13 and 17 of the Limitation of Actions Act. So that time starts to run in favour of the trespasser and against the registered owner from the date of the trespasser’s entry onto the suit land. It is acknowledged that the registered owner was, however, deceased at the time of purchase of and entry onto the land. Time could not run against the deceased. The Law of Succession Act protects the property of deceased persons and prohibits any kind of handling of such property except in accordance with the provisions of that law. See sections 2, 45, 79, 80 and 82 thereof.
Under section 45, any such handling of property of a deceased person amounts to the offence of intermeddling.
Where the adverse possessor enters the land after the death of the registered owner, time does not start to run for so long as the land is still registered in the name of the deceased. I find that the alleged purchase of, entry onto, stay on, and development of the suit land by the plaintiff were all acts of intermeddling with the estate of the deceased in terms of section 45 of the Law of Succession Act.
I find that the plaintiff has not proved his case on a balance of probabilities.
The suit is dismissed.
Each party to bear its own costs of the suit.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered virtually this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang- Court Assistant.
Bagada for the Plaintiff.
Mudiri for the Defendant.
elcl (os) e004 of 2025 JUDGEMENT Page 2