Zebedayo & 5 others v Waukhila & 13 others

WYCLIFF NAMBALI WAUKHILA .......................................... 13TH RESPONDENT BEN KASILI WAUKHILA .......................................................... 14TH RESPONDENT (Being an appeal from the judgment and decree of the Environment and Land Court of Kenya at Bungoma (Olao, J.) dated 9th May 2019, in ELC Case No. 184 of 2014 (O.S)) JUDGMENT 1. The respondents instituted a civil suit before the Environment and Land Court (ELC) against the appellants, by way of originating summons dated 2nd October, 2014, seeking to be declared the rightful owners of a portion of land parcel registered as Land Reference No. Malakisi/E.Sasuri/553 (hereinafter ‘suit property), measuring 48 acres, by virtue of the doctrine of adverse possession. 2. The respondents’ case before the ELC was that the appellants were the joint registered proprietors of the suit property, which property was divided into two portions: one portion was occupied by the appellants while the other was occupied by the respondents. They averred that the suit property was originally owned by the appellants’ late father, Zebedayo Kisiero (Zebedayo), but was transferred to the appellants in 2009. 3. The respondents asserted that their father, Simon Wachiye Nabiliki (Simon), entered into a sale agreement on 9th January, 1964, with the appellants’ father, Zebedayo, for the purchase of approximately 48 acres out of the suit property. The agreed purchase price was 93 heads of cattle. Upon execution of the agreement, the respondents’ father took possession of the 48 acres of the suit property, which was demarcated from the larger parcel of land. They averred that during the land adjudication period in 1965, the entire parcel of land was registered in Zebedayo name because their father had not yet completed paying the purchase price in full. However, they maintained that Zebedayo held the said 48 acres in trust for their father, Simon. 4. The respondents stated that they were born and raised on the suit property, that they had been allocated equal portions of the suit land by their father, built permanent homes thereon, cultivated crops, and remained in open, peaceful, continuous and uninterrupted occupation for a period of over 12 years. They further contended that the suit property was occupied by two families: the respondents occupied the 48 acres purchased by their father, while the appellants occupied the remainder of the suit property. They asserted that the appellants did not occupy or utilize the respondents’ portion, and urged that by the time the appellants obtained registration in 2009, the respondents had already acquired rights over the said 48 acres by adverse possession. 5. In response, the appellants, vide a replying adavit dated 18th November, 2014, averred that they are the sons of Zebedayo, who became the rst registered proprietor of the whole of the suit land measuring approximately 39.6 hectares (about 98 acres), on 8th March, 1965. They admitted that their late father entered into a sale agreement dated 9th January, 1964, with the respondents' father, Simon, in which he agreed to sell to him 15 'baringo' measuring 400 by 36 yards (approximately 3 acres) for a purchase price of 93 head of cattle. 6. However, the appellants contended that Simon only paid 73 head of cattle, leaving a balance of 20 head of cattle, with the result that the sale was never completed. They maintained that pending payment of the full purchase price, Simon was merely permitted to occupy and use an undesignated portion of the suit land as a licensee, since no boundaries had been xed. They further deponed that the respondents https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1857/eng@2026-09-25 2

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had not been appointed as legal representatives of their deceased’s father’s estate, and therefore lacked locus standi to lodge the suit before the ELC. 7. The appellants denied that their late father held any portion of the suit land in trust for Simon, or that the respondents had acquired ownership of the same by adverse possession. They further disputed the assertion by the respondents to the eect that they had occupied the alleged 48 acres of the suit property openly, peacefully and continuously for the statutory period, or that they had established permanent developments or buried relatives on the land, in a manner capable of conferring title to them. 8. The appellants further asserted that the respondents had concealed material facts, namely that Simon had previously instituted Kakamega H.C.C.C. No. 96 of 1978 claiming ownership of the entire parcel of the suit land. The suit was dismissed for want of prosecution. That he thereafter led Kitale H.C.C.C. (O.S.) No. 90 of 2005 claiming 40 acres of the suit land by adverse possession, but that the suit abated upon his death. The appellants maintained that the present proceedings were founded on the same cause of action as the abated Kitale suit. They also argued that through Succession Cause No. 66 of 2003, the suit property devolved to the estate of Zebedayo, and was subsequently transmitted to his beneciaries (the appellants) in 2009. No objection to the succession by the appellants was raised during those proceedings. 9. Lastly, they averred that the respondents' occupation had been repeatedly interrupted through litigation, including proceedings before the Cheptais Land Disputes Tribunal, where the appellants’ brother, one Benjamin Kisiero, sued the respondents’ father for trespass, and the subsequent judicial review proceedings which quashed the decision of the Tribunal in favour of the respondents’ father. They argued that the various litigation with respect to the suit interrupted the accrual of prescriptive rights as alleged by the respondents. They maintained that the respondents had unlawfully invaded the suit land, that the registration of the appellants as proprietors was lawful, and prayed for dismissal of the suit with costs and further prayed for the respondents' eviction from the suit property. 10. The matter proceeded to hearing by way of viva voce evidence. PW1, Bernard Kituko (the 5th respondent), PW2, Wilson Barasa (the 1st respondent), and PW3, Joseph Biketi, substantially reiterated the facts contained in averments in the respondents' pleadings. They maintained that neither the appellants nor their late father had ever evicted them from the suit property or instituted any proceedings to assert their rights over the portion occupied by the respondents. They further testied that a seasonal river demarcates the boundary between the portion occupied by the appellants and that occupied by the respondents. 11. PW4, Reuben Masafu, told the court that he was present when the appellants’ father and the respondents’ father entered into the agreement for sale of the portion of the suit property. He testied that the appellants’ father agreed to sell to the respondents’ father 15 ‘baringos’ at the price of 93 heads of cattle, and that the respondents’ father paid a deposit of 73 heads of cattle. He stated that he is the one who measured the purchased portion of suit property which was equivalent to 36 feet. He stated that the appellants’ father put up a boundary between the two portions of the suit property. He testied that the appellants’ father moved out of the suit property but later returned and occupied the portion currently occupied by the appellants. He stated that the portion currently occupied by the respondents was the portion purchased by their late father. 12. PW5, Samuel Wakora, a neighbour to the parties, stated that the respondents have been in occupation of the suit property since 1964. 13. DW1, Amos N. Kisiero, the 2nd appellant, reiterated the averments made by the appellants in their pleadings. Upon cross-examination, he conrmed that the respondents have been on the suit property https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1857/eng@2026-09-25 3

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since 1964. He maintained that the respondents’ father never paid the balance of the purchase price amounting to 20 heads of cattle; that he was however, not sure of the actual acreage occupied by both parties on the ground on the suit property. 14. Upon considering the evidence and submissions on record, Olao J., in a decision dated 9th May, 2019, entered judgment in favour of the respondents. The learned Judge found that the respondents had suciently proved their claim for adverse possession over 48 acres of the suit property, and consequently ordered the appellants to transfer the said portion of land to the respondents. 15. Aggrieved by this decision, the appellants led the appeal before us. They proered ve (5) grounds of appeal, in their memorandum of appeal dated 16th July, 2019. In summary, the appellants contend that the learned trial Judge erred in nding that time for purposes of adverse possession began to run in 1964, and in holding that the numerous suits between the parties concerning the suit property did not interrupt the running of time. They further argued that the Judge erred by equating the respondents' occupation of 15 "baringos" with an area measuring 48 acres; misapprehended the law on adverse possession; and rendered a judgment that lacked a proper legal foundation and was further against the weight of the evidence. Consequently, they urged this Court to allow the appeal as prayed. 16. The respondents did not le any written submission despite being served with the hearing notice by the Court. Neither did they appear in Court during the hearing of the appeal. The appeal was canvassed by way of written submissions led by the appellants. At the plenary hearing learned counsel Ms Nabwile held brief for Mr. Kidiavai who is on record for the appellants. She wholly relied on the written submission in support of the appeal. It was his submission that the learned Judge misdirected himself in both law and fact by holding that the respondents had acquired 48 acres of the suit property by adverse possession. He argued that the respondents' father entered the land pursuant to a sale agreement and, therefore, his occupation was permissive rather than adverse. Consequently, time for purposes of application of the doctrine of adverse possession could not begin to run from 1964, but only after the sale agreement became void for want of Land Control Board consent under the Land Control Act. 17. Counsel further contended that, in any event, the institution of Kakamega H.C.C.C. No. 96 of 1978 by the respondents’ father interrupted the running of time. He maintained that time could not continue running uninterrupted while ownership of the suit property was actively being litigated in court. Counsel also submitted that most of the respondents were minors when possession allegedly commenced in 1964, as such, they lacked legal capacity to acquire title of the suit property by adverse possession. He further faulted the trial court for converting the respondents' occupation of 15 "baringos" into 48 acres without obtaining any expert evidence, arguing that the nding was speculative and unsupported by the evidence on record. 18. Additionally, counsel for the appellants argued that the alleged sale transaction was void for want of Land Control Board consent and could not confer any proprietary rights. He maintained that the respondents neither pleaded nor proved entitlement to 48 acres, yet the trial court awarded them that acreage contrary to the settled principle that courts are bound by the parties' pleadings. He further submitted that the judgment unjustiably infringed upon the appellants' constitutional right to property under Article 40 of the Constitution. 19. Accordingly, counsel for the appellants urged this Court to nd that the respondents had failed to establish a claim for adverse possession, allow the appeal, set aside the judgment of the trial court, dismiss the respondents' claim, and enter judgment for the appellants' according to their counterclaim. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1857/eng@2026-09-25 4

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20. This being a rst appeal, our duty was well stated in Abok James Odera T/A A.J. Odera & Associates v. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, where this Court held that: This being a rst appeal, we are reminded of our primary role as a rst appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 21. Having re-evaluated the record of appeal, as well as submissions by the appellants, the issue falling for our determination is whether the learned Judge erred in nding that the respondents had acquired title to 48 acres of the suit property by the application of the doctrine of adverse possession. 22. For a claim of adverse possession to succeed, a claimant must prove that he has been in actual, open, exclusive, continuous and uninterrupted possession of the land for a period exceeding twelve years, in a manner inconsistent with the title and rights of the registered owner. 23. This Court in Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another [2015] KECA 728 (KLR) stated thus: “ From all these provisions, what amounts to adverse possession? First, the parcel of land must be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, lastly, he must have been in that occupation for a period in excess of twelve years, having dispossessed the owner or there having been discontinuance of possession by the owner.” 24. The respondents' case before the trial court was that their late father purchased approximately 48 acres of the suit property in 1964, immediately took possession thereof, and that they, together with their late father, had remained in open, peaceful, exclusive and uninterrupted occupation of that distinct portion of land for a period of over ve decades. The appellants, on the other hand, maintained that the sale was never completed, that the respondents' father was a mere licensee, that the respondents had not proved occupation of 48 acres of the suit property, and that the various suits relating to the land interrupted the running of time for purposes of adverse possession. 25. From our re-evaluation of the evidence adduced before the ELC it was clear that the respondents overwhelmingly established that they and, before them, their late father had been in actual possession and occupation of a distinct portion of the suit property from 1964. PW1, PW2 and PW3 testied that they were born and raised on suit property, had established permanent homes thereon and cultivated it continuously ever since that time. Their testimony was corroborated by PW5, a neighbour, who conrmed that the respondents had been in occupation of the disputed portion of the suit property since 1964. More signicantly, the 2nd appellant conceded during cross- examination that the respondents had indeed been on the suit property since 1964. That evidence was therefore substantially uncontroverted. 26. The respondents also established that their possession was open, notorious and exclusive. Their evidence was that the land had long been occupied by the two families, with a seasonal river demarcating the portion occupied by the respondents from that occupied by the appellants. There was no evidence that the appellants occupied, cultivated or exercised acts of ownership over the respondents' portion of the suit property. Instead, the evidence demonstrated that each family exclusively occupied their respective portion of land for decades. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1857/eng@2026-09-25 5

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27. Further, PW4, an independent witness who witnessed the sale transaction, testied that he was present when the parties' respective fathers entered into the agreement, participated in measuring the land sold, witnessed the establishment of the boundary by the appellants' father, and conrmed that the portion presently occupied by the respondents is the same portion of land that was purchased by their late father. His testimony provided independent corroboration of the respondents' evidence as to both the identity and extent of the land that they currently occupy. The appellants did not adduce any evidence to discredit that testimony. 28. We are equally unpersuaded by the appellants' contention that the respondents failed to prove occupation of the 48 acres of land. Although the appellants disputed the acreage, they placed no evidence before the Court to demonstrate the actual extent of the land occupied by either party. Indeed, the 2nd appellant readily admitted that he did not know the actual acreage occupied by the respondents or even the acreage that is occupied by the appellants. In those circumstances, the respondents' evidence that they occupied 48 acres remained unchallenged, and the learned Judge cannot be faulted for accepting it as a fact. 29. As regards interruption of time, this Court in Mwangi Githu v Livingstone Ndeete [1980] KECA 35 (KLR) made the following observations with respect to when time stops running: “ Time ceases to run under the Limitation of Actions Act either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an eective entry into the land.” 30. In the present case there was no re-entry onto the portion of the suit property occupied by the respondents. Further no suit was led by the appellants, or their late father for that matter, for recovery of possession of the suit property, and no successful action aimed at dispossessing the respondents of the suit property was ever mounted. The appellants relied on the various proceedings that had previously been instituted by the respondents’ father concerning the suit property. However, the evidence does not demonstrate that either the appellants or their predecessor in action successfully asserted their possessory rights over the specic portion of the suit property occupied by the respondents by way of their own suit. Indeed, PW1, PW2 and PW3 consistently testied that neither the appellants nor their late father had ever evicted them from the disputed portion or instituted proceedings seeking to recover possession of that portion of land, and that evidence was not displaced by any evidence adduced by the appellants. Throughout the period in question, the respondents remained in uninterrupted occupation of the land they claim. The learned Judge therefore cannot be faulted for concluding that the respondents' possession remained continuous for purposes of the application of the doctrine of adverse possession. 31. Additionally, we are not persuaded by the appellants' contention that because the respondents were minors when their father entered the suit property, they were incapable of acquiring title by adverse possession. That submission overlooks the true nature of the respondents' claim. Their case was founded upon continuous possession by their predecessor, which subsequently devolved upon them as they continued occupation and possession of the same identiable portion of land. The relevant possession was therefore continuous family possession extending over several decades and not possession that commenced only upon the respondents attaining the age of majority. 32. Ultimately, what emerges from the record is respondents’ family that has been in possession of a clearly dened portion of the suit property openly, peacefully and exclusively since 1964, constructed permanent homes thereon, cultivated the land and treated it as their own, while the appellants occupied a separate and distinct portion of the same land that is clearly demarcated by a recognized https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1857/eng@2026-09-25 6

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boundary. The appellants did not adduce evidence to establish that they ever regained possession of the disputed portion of land or that the respondents' occupation ceased to be continuous during the entire period in consideration. The learned Judge meticulously evaluated the evidence, correctly appreciated the legal principles governing adverse possession, and reached a conclusion fully supported the evidence and pleadings on record. We therefore nd no error of law or fact that would justify interference by this Court. 33. In the end, we are satised that the respondents established actual, open, exclusive and continuous occupation of a clearly identiable portion of the suit property for a statutory period well in excess of twelve years. 34. Accordingly, this appeal is devoid of merit and is hereby dismissed. As the respondents did not participate in the appeal, we make no order as to costs. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OFSEPTEMBER,2026. ASIKE-MAKHANDIA ............................ JUDGE OF APPEAL H.A. OMONDI ............................ JUDGE OF APPEAL L. KIMARU ........................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1857/eng@2026-09-25 7

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