(Suit for land by way of adverse possession; court persuaded that the plaintiff is entitled to the disputed land through adverse possession; judgment entered for the plaintiff)
A. INTRODUCTION
1. The applicant (referred to herein as the plaintiff) commenced this suit through an Originating Summons filed on 4 March 2021 claiming to be entitled to land parcel, West Kitutu/Bogeka/ 5517 measuring 0.30 Ha (hereinafter referred to as “the suit land”) by way of adverse possession. The plaintiff seeks orders that she be registered as the proprietor of the suit land and the respondents (hereinafter referred to as the defendants) to be restrained from interfering with her occupation of the suit land in any manner whatsoever. The plaintiff also seeks an order directing the Deputy Registrar and/or the court’s Executive Officer to execute the transfer instruments and all the attendant documents to facilitate the transfer and registration of the suit land in her name in the event the 2nd defendant defaults in executing the same.
2. The Originating Summons is supported by an affidavit sworn by the plaintiff on 3 March 2021. The plaintiff in the supporting affidavit averred that she has been in peaceful, open and continuous occupation of the suit land from 1993 hence entitled to claim the same by way of adverse possession. She deposed that the land was initially comprised in the land parcel West Kitutu/Bogeka/64 which was subdivided to produce the parcels No. 4990 and 4991. The parcel No. 4990 was subsequently subdivided to produce the suit land i.e parcel No. 5517 registered in name of the 2nd defendant. From the attached extract of title, the parcel No. 64 was in name of Obonyo Marucha who got registered as proprietor on 5 August 1976. This land was transferred to John Masengo Obonyo, the 1st defendant, on 26 March 2014. The title was closed on 2 April 2014 when it was subdivided into the parcels No. 4990 and 4991 registered in name of the 1st defendant. He subdivided this parcel No. 4990 to produce the suit land i.e parcel No. 5517 initially registered in his name and later transferred to the 2nd defendant, Wilbert Nyabika Ochiengi, on 24 July 2016.
3. The defendants in response filed a joint replying affidavit dated 20 May 2021. The defendants in their affidavit averred that they are the joint registered owners of the suit land and their rights over it cannot be challenged. They contended that they are currently in occupation of the suit land having legally purchased the same. They averred further that the plaintiff is using force to trespass and/or inherit the land and is acting as a gold digger using short cuts and force.
4. On 9 May 2023, one Dominic Mokaya filed a replying affidavit titled “acts of trespass by the Applicants herein”. Mr. Mokaya in his affidavit averred that the 2nd defendant had donated to him a power of attorney. He averred that in the month of December 2022, the plaintiff trespassed into the suit land and constructed a makeshift structure. He stated that the plaintiff once again trespassed into the suit property in April 2023 and constructed a semi-permanent house (mud with iron sheets) which prompted him to report the matter to Nyakoe Police station on 11 April, 2023. He contended that the acts of the plaintiff were an afterthought to preempt and divert the final outcome of the suit. He urged the court to make a finding that the actions of the plaintiff amounted to an abuse of the court process meant to defeat justice.
5. Directions were taken that the matter do proceed by way of viva voce evidence.
B. EVIDENCE DURING TRIAL
The plaintiff’s case
6. The plaintiff testified as PW-1. She mentioned that she was adopting a witness statement but I have seen none on record and I suppose that the adoption was of the contents in the supporting affidavit. She testified that the suit land was initially parcel No. 64 before it was subdivided into parcels No. 4990 and 4991. Land Parcel No. 4990 was later subdivided and produced parcel No. 5517, which is the subject of this suit.
7. She testified that she has houses and napier grass on the suit land. She produced two photographs showing the houses and the napier grass. She stated that she stays on the suit land together with her children. She disclosed that her husband died and was buried on the suit land. She stated too that since she entered the suit land, nobody has ever evicted her. She testified that she knows the 2nd defendant, Wilbert Nyabika, the registered owner of the suit land and stated that he has not done anything on the land. She urged the court to allow her live on the land given that she has been residing therein for a period of 24 years and has nowhere else to take her children.
8. When Cross examined by Mr. Moracha, learned counsel for the defendants, she stated that she used to live with her late husband at Nyabururu when she got married but later moved to the suit land in 1993. She stated further that the land was bought by her late father-in-law, Silvanus Onchoke Onchari, from Michael Obonyo Morucha, the 1st defendant’s late father. She did not have the sale agreement as she stated that the same was burnt when their house burnt down in 1995. She mentioned that it was her husband who burnt the house as he had a mental illness. She added that people raised funds to enable her reconstruct the house. She reiterated that her husband died in 2002 and was buried on the suit land. She elaborated that they were not relatives with the family of Obonyo (i.e the family of the 1st defendant). She was aware that the 1st defendant carried out succession of his late father’s estate (i.e the first registered proprietor). She yielded however that during the succession process she did not raise any claim since she was not aware when the same was commenced. She stated that she only got to know about it three years to the time she testified when police officers attempted to evict her. She disclosed further that Wilbert (2nd defendant), attempted to evict her twice but his efforts were thwarted by the community.
9. She elaborated that the suit land is divided into two by a road, wherein the houses are on the upper side while the napier grass is on the lower side. She however indicated that her son had recently constructed a semi-permanent house where the napier grass was. She refuted claims that 1st defendant came to the suit land to build on it and she chased him away.
10. She denied the claim that she only came to the land to take care of the late Michael Obonyo Marucha (the original proprietor of the parcel No. 64) who had fallen ill. She also denied the claim that after Obonyo Marucha died she took over the land because his son, the 1st defendant, lived far.
11. PW2 was one Onyiego Onuong’a. He testified that in the year 1969, Onchoke (father in law of the plaintiff) bought the land from Obonyo (original proprietor). When the land was bought, Masengo Obonyo, the 1st defendant, was still a child. He later came to learn that he (Masengo Obonyo) wanted to take away the plaintiff’s land yet his father had sold it. He stated further that the land belongs to the plaintiff and he could not understand where the 2nd defendant came from to purchase it. He disclosed that the plaintiff was a wife to John, a son of Onchoke, the buyer of the land.
12. When cross-examined by Mr. Moracha, he stated that he was born in 1937 and that he lives on the land he inherited from his father. He stated that he knows Obonyo Marucha since they were neighbours. He testified that he was present when Onchoke bought the land in 1969. He elaborated that the plaintiff was married at Nyamataro area but they no longer have any land there since they sold it and she now lives on the suit land.
13. PW3 was one Joseph Nyangau. There was not much in his evidence for all he stated was that the case be taken back home for an amicable resolution.
14. PW4 was one Kemunto Maeba. She testified that the father to the 1st defendant and her husband are step brothers. She stated further that the plaintiff’s father-in-law bought land from the 1st defendant’s father but there was a portion that was not sold which was given to the 1st defendant. She stated too that some sand was later deposited on the suit land and when she inquired she was told that 1st defendant had sold the land belonging to the plaintiff. She testified that there are very many people in their village who know about the history of the suit land. She disclosed that the plaintiff recently buried his son on the suit land. She did not know the person who had bought the suit land.
15. During cross-examination, she testified that she was not aware of the acreage that was sold by Obonyo Marucha. She mentioned that Obonyo had two children, one male and one female. The son was Masengo Obonyo, the 1st defendant. She averred that Masengo had sold of all the land that had been given to him by his father to three other people and later also sold the land of the plaintiff. She testified that she was present when Onchoke bought land from Obonyo Marucha though according to her there was no written agreement and she could not tell the purchase price. She explained that the land is split into two by a road. On the upper side is where the plaintiff lives and on the lower side is where the plaintiff has planted napier grass. She acknowledged that there were some new houses built by a son of the plaintiff on the lower side.
The defendants’ case
16. The 1st defendant testified as DW1. He stated that he lives at Mosocho where he is employed as a herder. He adopted his statement dated 8 June, 2022 as his evidence in chief. In his statement, the 1st defendant stated that his father was the original registered owner of suit land. He elaborated that after the demise of his father, he carried out succession and the land was transmitted to him. He was the only son. He later sold the same to the 2nd defendant. He went on to state that his father, during his lifetime, leased the suit land to plaintiff but never sold it. He further stated that he used to work at Kericho up to 2017 when he came back after the 2017 post-election violence only to find the plaintiff claiming the entire land. He asked the plaintiff to move from his land but she threatened to kill him. He stated too that the plaintiff was illegally laying claim over the suit land which he had lawfully sold to the 2nd defendant. He denied the plaintiff’s claim that she stays on the suit land and insisted that there were no structures nor bodies buried on the suit land. He stated however that the plaintiff stays on the upper side of the road and not the lower side of the road; according to him, the disputed land is on the lower side of the road. He contended that the photos which were attached to the affidavit in support of the Originating Summons were not taken on the suit land. He went on to make yet another claim, that the plaintiff came to their home to take care of his father, who had grown very old, only to lay claim over his entire land after his death. He alleged that the plaintiff is crafty and malicious and having forcefully taken his father’s land wants to illegally extend her wings to the remaining portion. He insisted that the portion of land she currently occupies was illegally obtained since there was no agreement nor consent of the land control board.
17. In his oral testimony in court, he affirmed that Onchoke is father in law of the plaintiff. He claimed that Onchoke leased land from his father when he was 15 years old. He was born in 1962. He stated too that the lease was to last for two years only and that Onchoke left after the two years at a time that the plaintiff had not been married into the family. He went on to state that a brother to the plaintiff who is abroad claimed that their father bought the land and as such the plaintiff moved into the land based on that contention. He stated further that he tried to stop the plaintiff but she refused and went on to build a house on it. He could not recall the year his father died though in his opinion the plaintiff came to the land after his father was already deceased.
18. He testified that what he sold to the 2nd defendant was the lower portion of the land which he described as land parcel No. 4991. He stated that he still holds title to the parcel No. 4990 which he has not subdivided. He contended that the plaintiff wants to take this lower portion of the land. He alleged that he has title to the upper side but he could not recall the parcel number. He refuted that the photos displayed by the plaintiff are of the suit land. He however acknowledged that he does not live on the land and has built his home elsewhere in Marani area. He testified that he sold the land in 2016 to Mokaya (DW-2) and not to Wilbert (the 2nd defendant). He elaborated that the person he knows is Mokaya and not Wilbert.
19. When cross examined by the plaintiff he reiterated his testimony that the plaintiff’s father in law leased the land from his father and did not buy it. He denied the plaintiff’s claim that she moved into the suit property in 1993 from Nyabururu.
20. DW2 was Dominic Mokaya. He stated he was in court on behalf of his brother, the 2nd defendant herein, who donated to him a Power of Attorney since he is in Dubai. He testified that on behalf of the 2nd defendant he entered into an agreement with the 1st defendant to purchase the suit land, vide an agreement dated 11 June, 2016. It was him who executed the agreement on behalf of the 2nd defendant. He testified that prior to entering into the agreement he carried out a search which showed that the suit property was registered in the name of the 1st defendant. Later, the 1st defendant transferred the title of the suit land to the 2nd defendant. He affirmed that the 2nd defendant has not put up any structure on the suit property. According to him the suit land measures 0.3 ha and the boundaries are visible. He elaborated that the land bought is that on the lower side of the road. He mentioned that he swore the affidavit of 9 May, 2023 wherein he annexed photographs of new structures that were recently erected on the suit land. He proceeded to report the matter at Nyakoe Police station. He decried that the plaintiff is encroaching on to the land his brother bought.
21. When cross examined by the plaintiff, DW-2 stated that he bought the land during the day at around 10.00 am. He mentioned that the village headman was the one who showed them the land and told them that the land was owned by Masengo. He added that they went through the chief to buy the land. The chief informed them that he was the one who wrote the succession letter and that there was no problem in them purchasing the suit land.
22. When questioned by the court he described that there is land on the upper side and land on the lower side and there is a road in between. He reiterated that the land that was bought was on the lower side. He confirmed that when the land was bought there was napier grass on the lower side but revealed that the same was being cultivated by one Machoni from Nyabururu area. He confirmed that indeed the houses of the plaintiff were on the upper side but he did not know the parcel number for the land on this upper side. He stated that they bought the land in 2016 but did not carry out any activity on it since he went out of the country soon thereafter. When he came back to the country around 2018 he told Machuni to vacate. However, Machuni informed him that he had leased the land from the plaintiff. He claimed that he proceeded to pay him Kshs. 50,000/= in the presence of the plaintiff and the 1st defendant so as to create a good relationship with the neighbours. He stated that the plaintiff claimed to have bought the land but had no documents to that effect.
23. Being curious about the alleged lease agreement between Machuni and the plaintiff, the court gave the plaintiff an opportunity to elaborate on the same. The plaintiff stated that it was true that she had leased to Machuni the portion of the suit land on the lower side to plant maize for a period of 5 years from 2014 at a sum of Kshs. 20,000/-. When the lease expired, he left and she proceeded to plant the napier grass. She revealed that she and Machuni were summoned by the area chief. In the said meeting she was accompanied by some ladies who confirmed to the chief that she owned the land. She stated that she did not hear Machuni asking to be compensated, nor did she see him being compensated by the 2nd defendant. However, Machuni later told her that the defendants gave him money as the 1st defendant had sold the land to the 2nd Defendant.
24. Upon each party closing their cases, I directed counsel to file their written submissions. The parties did comply and I was left with the duty of writing the judgment. I however encountered challenges that could not enable me finalise the judgment. Significantly, I noted that none of the parties had brought any surveyor to testify or a survey report so as to give clarity on the suit land. I noted that one of the critical issues regarding the suit land was whether it is split by a road or whether it is only on the lower side since the plaintiff in her evidence claimed that the suit land covers both sides of the road whereas the defendants asserted that the suit land was only on the lower side. Given the circumstances, I directed the County Surveyor and the County land Registrar to proceed to the suit land and carry out a survey exercise, inter alia to identify the suit land and state whether it is split by a road or not.
25. In compliance with the direction of the court, the survey exercise was carried out on 17 September 2024 and a report dated 13 November, 2024 was filed in court. The surveyor confirmed that indeed there was a road passing through the suit land and thus the suit land falls on both sides of the road. He observed that the upper part of the suit land is being utilized by the plaintiff as a homestead with two semi-permanent houses, a pit latrine, a small banana plantation, as well as a visible grave. The lower part is being utilized by the sons of the plaintiff and there is a three bedroom semi-permanent house on one corner whereas the rest of it is under subsistence farming. The surveyor attached photos to support their observations and also provided the Preliminary Index Diagram (Map Sheet) No. 21 which showed the suit land. It was however noted that the suit property measured 0.45 ha on the ground as opposed to the registered area of 0.30 ha recorded on the title.
26. At this point, the plaintiff who was hitherto acting in person appointed counsel. I inquired whether counsel wished to cross-examine the Surveyor on his report, but they indicated that they did not wish to do so and that the report could be admitted in evidence by consent. They however indicated that they wished to file further submissions which I allowed them to do so. From the record it is only the counsel for the plaintiff who filed further submissions on the survey report. Mr. Maeche, learned counsel for the plaintiff, in his submissions on the report, submitted that the report confirmed that the plaintiff is in actual possession of the entire suit land. Regarding the discrepancy between the title acreage which is 0.30 ha and the ground acreage which was found to be 0.45 ha, counsel submitted that a claim for adverse possession is not confined to the acreage stated on the title but rather it extends to the entire land occupied, used and possessed continuously for the statutory period. Counsel thus contended that the focus should not be on the title but rather it should be on the actual possession of the suit land. He contended too that since it has been established that the plaintiff has been in occupation of the entire suit property, which is 0.45 ha as per the ground measurements, for a period of 28 years, the entire parcel falls under adverse possession notwithstanding the acreage recorded on the title.
C. ANALYSIS AND DISPOSITION
27. I have carefully read and considered the originating summons, the supporting affidavit and the annextures thereto, the replying affidavits filed by the defendants together with the annextures thereto, the testimonies of the parties during the hearing of the case, the written submissions filed by both parties, the survey report dated 17th September, 2024, and the further submissions by the plaintiff with respect to the survey report. I find that the sole issue for determination is whether the plaintiff has acquired the suit land by way of adverse possession.
28. The law on Adverse Possession is now well settled. The ingredients were discussed by the court of Appeal in the case of Mtana Lewa –v- Kahindi Ngala Mwangandi (2005) eKLR where it was held that:
“Adverse Possession is essentially a situation where a person takes Possession of land, asserts rights over it and the person having title to it omits or neglects to take an action against such person in assertion of his title for a certain period, in Kenya 12 years.”
29. Equally the ingredients of adverse possession were recently discussed by the court of appeal in Kisumu Civil appeal No. 110 of 2016; Richard Wefwafwa Sangoi vs Ben Munyifwa Sangoi (2020) eKLR wherein it stated as follows;
“40. A person who claims adverse possession must inter alia show:
(a) on what date he came into possession.
(b) what was the nature of his possession?
(c) whether the fact of his possession was known to the other party.
(d) for how long his possession has continued and
(e) that the possession was open and undisturbed for the requisite 12 years.”
30. Now, before we go very far, there was of course some confusion over what land is actually comprised in the suit land. The plaintiff came to court asserting that the land is split into two by a road, and thus traverses what was described in the proceedings as the upper side and the lower side. On the upper side is where she has had her homestead and where her husband was buried. She did contend that on the lower side she had been using it to cultivate and around about the year 2014, she leased it to one Machuni for 5 years. When he left, she took it over and planted napier grass. It also emerged that in the course of the proceedings, around about the year 2023 or thereabout, her son built a house on this lower portion of the land.
31. The position of the defendants is that the suit land is that portion of the land which is on the lower side. According to them, this is what was bought and sold.
32. We have confirmation from the County Land Surveyor, that indeed the suit land covers both the lower side and the upper side of the road. Thus, if the defendants say that what they claim is the lower side of the land, it follows that there is no contest at all regarding the land on the upper side of the road.
33. But let us recall that the plaintiff claims the whole land, i.e the upper and lower side and it is the duty of this court to see whether she meets the ingredients for a claim of adverse possession.
34. On the element as to when the plaintiff entered the land, it was the plaintiff’s case that she moved into the suit land in 1993 together with her late husband who later died in 2002 and was buried on the suit land. She elaborated that they took possession of the suit land on the basis that it had been purchased by her father-in-law, one Onchoke, who was the father to her late husband.
35. The defendants in their replying affidavit categorically denied any possession by the plaintiff of the suit land. I think this issue of possession by the plaintiff is very clear and was confirmed by the County Land Surveyor. In his report, the County Surveyor confirmed that the plaintiff uses the upper side as a homestead. There are two semi-permanent houses, a pit latrine, a small banana plantation, and a visible grave. On the lower part, there is the house built by the son of the plaintiff and the rest of the land is under subsistence farming. I think the evidence is overwhelming regarding possession of the land.
36. As to the time of entry of the plaintiff, whatever the case, it is clearly before 2002 when her husband died and was buried on the land. Even if we take 2002 as the baseline year, 12 years of possession would still be clocked to the time that the suit was filed which was in 2021. I have no evidence of any interruption of this possession ; indeed this is where the homestead of the plaintiff is located. There is also evidence of a lease of the land to a third party by the plaintiff, which was confirmed by DW-2.
37. There is no evidence of any possession of the land by the defendants. From the evidence, I am inclined to believe that the land was sold to the plaintiff’s father in law despite there not being exhibited any sale agreement. The defendants of course tried to dispute this sale but I think the totality of the evidence tilts towards this probability. DW-1 did state that the land was only leased to Onchoke for two years at a time that he was 15 years old and that on expiry of the two years, Onchoke left. If he was born in 1962 as he claimed, then this lease would have been in 1977 and would have expired in 1979. It still does not explain how come the plaintiff came into possession sometimes in the 1990s.This alleged lease was not proved in writing or affirmed by any other witness. I am inclined not to believe this bit of evidence of DW-1.
38. Apart from this allegation of a lease, DW-1 alleged that the plaintiff came into the land to take care of his ailing father. Again, this does not add up. It is unusual for somebody who has come to take care of an ailing person to fully occupy the land, build a homestead, and even bury her husband on it. These are not acts of a mere worker. Moreover, I have no evidence of any complaint by the father of the 1st defendant on possession of the plaintiff in the suit land.
39. There is no evidence of any house that the father of the 1st defendant had on the land so that the plaintiff could come and take care of him. It was not even said where the father of the 1st defendant was buried. I would suppose that if he lived on the suit land then the 1st defendant would have been quick to point out the location of his house. If he was buried on the suit land, the 1st defendant would have promptly pointed at the location of his grave. He did neither. From this, it can be gathered that the father of the 1st defendant had lost interest in the suit land and I would think that he lost interest because he knew that he has already sold it to Onchoke. It was said by PW-3 that the 1st defendant’s father left some land for the 1st defendant. I suppose that is the other parcels of land that do not comprise the suit land but are covered by the other subdivisions of the original parcel No. 64.
40. The 1st defendant himself also does not appear to have had any interest in the suit land save for simply selling it. He did not state that he ever cultivated it or ever lived in it at any one time. His evidence was that he had been working in Kericho until 2017. It means that he never interrupted the possession of the plaintiff in the suit land. The high probability is that he was aware that this land has been sold to the family of the plaintiff and that is why he never took steps to come into the land and seize possession of it. Instead, he cashed in on the fact that the title was still in his name, and sold it to the 2nd defendant. All along he knew that the plaintiff was in possession and has been in possession for a long time.
41. I do not think that the 2nd defendant did ample due diligence when he bought the land. He was of course not present and relied on DW-2 who holds his power of attorney. DW-2 testified that they were shown the land by a headman and the 1st defendant. What they were shown was only the lower portion of the land but the title is comprised in both the lower and upper portions. If the 2nd defendant had done some due diligence he would have discovered this fact. He would also have discovered that the plaintiff has been on the land for a very long time. It appears that he was aware of the lease of the land by the plaintiff to a third party, and that is why he paid the third party Kshs. 50,000/= to relinquish any interest in it. But this was only a lessee. The 2nd defendant ought to have extended his due diligence to the lessor, i.e the plaintiff. All he did was to report the matter to the Chief but this does not help him much.
42. This was a property that any person that has conducted due diligence would not have purchased. The land was occupied and was being farmed by the plaintiff. The 2nd defendant ought to have done better. As it stands, he appears to have been conned by the 1st defendant who all along knew that this land was sold to the plaintiff’s family and they have been in possession all along.
43. The defendants of course assert that no sale agreement and no Land Control Board consent, was displayed, which is true. But the plaintiff is not seeking to enforce any sale agreement. She has come to court on the premise of adverse possession. The mention of the sale agreement is only to demonstrate how and when she came into possession. The fact of the matter is that she has been in possession for over 20 years to the time that the suit was filed. Thus, the lack of a sale agreement, or Land Control Board consent, does not help the defendants.
44. My assessment of the evidence is that I am fully persuaded that the plaintiff has proved all the ingredients in order to seek title to the suit land by way of adverse possession. She has demonstrated that she has been on the suit land for over 20 years. She has demonstrated continuous, open, and uninterrupted possession. She has not been on the land by force and her possession was quiet until the time that the 2nd defendant wanted to now take over the land which was just before the suit was filed. I am sorry to inform the 2nd defendant that by this time, title was already extinguished as the plaintiff had been in possession for over 12 years.
45. I am thus inclined to enter judgment in favour of the plaintiff and I so enter judgment in favour of her. I am aware that when the land was measured, it showed some discrepancy. What the plaintiff will get is an order that she has obtained title by way of adverse possession to the land parcel West Kitutu/Bogeka/5517. After the land is transferred to her, she can consider applying for rectification of the title or pursue other methods of having the title reflect the correct acreage.
46. I will order the 2nd defendant to transfer the title to the plaintiff within the next 30 days. If he does not do so the Deputy Registrar or an officer assigned by the Deputy Registrar to proceed and execute the requisite documents of transfer of title.
47. In addition, I issue an order to permanently restrain the defendants from entering, being upon, or in any other way disturbing the quiet possession of the plaintiff on the suit land.
48. The final issue is costs. There was no need to sue the 1st defendant as he held no title at the time that the case was filed. The 2nd defendant was a purchaser who was trying to get into land that he purchased. Each party will thus bear his/her own costs of the case.
49. Judgment accordingly.
DATED AND DELIVERED THIS 24 DAY OF JUNE 2025
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT KISII
Delivered in the presence of :
Mr. Maeche for the plaintiff
No appearance on part of Mr. Moracha for the defendants
Court Assistant – Michael Oyuko.