Fredrick Omondi Okeyo v Mary Were & Douglas Otieno Were

The appellant accordingly sought an order of permanent Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 2 of 10

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injunction, eviction, and mesne profits against them in the said suit. 2. The respondents subsequently also filed and Originating Summons in ELC Case No. 79 of 2017, wherein they asserted that their late father, Andrew Were Otieno, purchased 0.05 hectares of land from Charles Odhiambo Nedia in 1992 for Kshs 30,000/=, took immediate physical possession, built their family homestead and registered the property under Douglas Otieno Were's name on 17 th December 2010. They alleged that the appellant fraudulently and mistakenly included the land parcel in the succession proceedings. The respondents accordingly claimed ownership of the land by adverse possession, having been in open, uninterrupted, exclusive, and continuous possession thereof for over 12 years since 1992. 3. The two suits were by consent consolidated by A. Omollo J., with the appellant being deemed as the plaintiff, the respondents the defendants, and the Originating Summons was converted to a counterclaim. After hearing the parties and their witnesses, the learned Judge delivered a judgment on 17th June 2021 in which it was found that the evidence placed before the court confirmed that the respondents took actual physical possession in 1992 after purchasing the land, constructed semi- permanent houses, and maintained Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 3 of 10

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continuous, uninterrupted occupation for over 12 years prior to any legal proceedings. 4. Accordingly, that time under the Limitation of Actions Act began running in 1992, and by the time 12 years elapsed in 2004, the rights and title of the original owner (Charles Odhiambo Nedia), and subsequently his estate or representatives, over the 0.05 hectares parcel were extinguished by operation of law. Consequently, the appellant’s subsequent registration as proprietor in 2015 arising from the succession proceedings could not revive a title that had already been extinguished by adverse possession prior to the distribution of the estate. 5. The learned Judge therefore dismissed the appellant’s suit in ELC No. 123 of 2015 and allowed the respondents’ claim for adverse possession in ELC No. 79 of 2017. The Judge ordered the cancellation of the appellant’s registration as the proprietor of land parcel Teso/Angoromo/4276, and the Land South Registrar was directed to register the respondents as the absolute proprietors of parcel South Teso/Angoromo/4276. Lastly, the appellant was ordered to pay the costs of the suit and counterclaim. 6. The appellant was aggrieved and filed this appeal, and has raised six grounds in his Memorandum of Appeal dated 19th August 2021 as follows: Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 4 of 10

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7. 1. The Learned Judge erred in law and fact by dismissing the Appellant's suit, which was filed prior to the Respondents' counterclaim for adverse possession. 2. The Learned Judge erred in allowing the Respondents' claim for adverse possession without sufficient evidence to support it. 3. The Learned Judge erred in allowing the adverse possession claim even though the Respondents considered themselves the registered owners of the suit land up to and including the date of trial. 4. The Learned Judge failed to properly frame, consider, and decide the specific issues brought before the court. 5. The Learned Judge misapprehended the evidence presented during the proceedings. 6. The Learned Judge erred by deciding and determining issues that were neither pleaded nor canvassed by the parties. We heard the appeal on this Court’s virtual platform on 18th May 2026. Learned counsel Mr. Francis Omondi was present for the appellant, and highlighted his written submissions dated 15th May 2026. There was no appearance for the respondents, despite their advocates on record having been duly served with the hearing notice, nor did they file any written submissions. 8. In commencing the determination of this appeal, we are mindful that the duty of this Court as a first appeal Court, as reiterated and set out in the decision of Selle and Another vs Associated Motor Boat Co. Ltd & Others Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 5 of 10

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(1968) EA 123. We shall accordingly reconsider the evidence adduced in the trial court, evaluate it, and draw our conclusion of facts and law; and we will only depart from the findings by the trial Court if they were not based on the evidence on record; if the said Court is shown to have acted on the wrong principles of law as was held in Jabane vs Olenja (1986) KLR 661, or where its discretion was exercised injudiciously as was held in Mbogo & Another vs Shah (1968) EA 93. 9. Mr. Omondi’s main argument is that a person claiming land through adverse possession must explicitly acknowledge and recognize the title held by the registered owner from the onset, but the respondents disputed the validity of the appellant's title. According to counsel, and while citing the decision in Athman Mwalimu and 6 Others vs Naran Ramji Halal and Anor (2025) KECA 1186 (KLR), fraudulently a person processed cannot while allege a simultaneously title was claiming ownership of that same title via adverse possession. Therefore, because the respondents disputed and failed to recognize the appellant's title, their claim for adverse possession was a "non-starter". Furthermore, evidence indicated that the respondents originally entered the land with the consent and permission of the deceased owner, thereby negating the threshold required for adverse possession. Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 6 of 10

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10. The main issue for determination before us is whether the finding that the respondents had acquired adverse possession to the suit land and thereby extinguished the appellant’s title was supported by the evidence and the law. The law on adverse possession is well settled in Kenya. The law allows a person to acquire title to land after twelve years of uninterrupted, open, and hostile occupation, as provided for under section 13 of the Limitation of Actions Act, Cap 22. Many decisions of this Court have explained the nature of this possession, and see in this regard the decisions in Jandu vs Kirpal & Another [1975] EA 225, Wambugu vs Njuguna [1983] KLR 171 Mtana Lewa vs Kahindi Ngala Mwamgandi [2005] eKLR, and Ndolo vs Kitutu & 8 others [2022] KECA 1289 (KLR). 11. It is also settled law that once a purchaser enters land under a valid sale agreement, their occupation is permissive and time for adverse possession cannot run so long as there is no dispute as regards the said agreement or possession. This Court held as follows in this regard in Samuel Miki Waweru vs. Jane Njeru Richu, [2007] KECA 465 (KLR) held that: “It is trite law that a claim for adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner or in pursuance of an agreement for sale or lease or otherwise. Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 7 of 10

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Further as the High Court correctly held in Jandu vs. Kilpal [1975] EA 225 possession Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 8 of 10

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12. does not become adverse before the end of the period for which permission to occupy has been given. The principle to be extracted from the case of Sisto Wambugu vs. Kamau Njuguna (1982 – 88) 1 KAR 217 relied on by Mr. Gitonga, learned counsel for the appellant, seems to be that a purchaser of land under a contract of sale who is in possession of the land with the permission of the vendor pending completion cannot lay a claim of adverse possession of such land at any time during the period of validity of the contract unless and until the contract of sale has first been repudiated or rescinded by parties in which case adverse possession starts from date of the termination of the contract. The decision identified the circumstances when the possession of such a purchaser may become adverse against the registered owner, namely when the agreement is repudiated, or explicitly when the final installment of the purchase price is paid and completion fails through no fault of the buyer. Time therefore begins to run against the owner and any subsequent registered proprietor taking subject to the defect or delay, from the date the contract is explicitly repudiated, or upon payment of the final purchase installment when the vendor fails to complete or transfer the title. Se in this regard the decisions by this Court in M’Riria & 5 others v Muthomi [2025] KECA 951 (KLR) and Okul & another v Ondieki & 3 others Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 9 of 10

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[2026] KECA 882 (KLR). In Githu vs Ndeete [1984] KLR 776, it was held that the Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 10 of 10

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mere change of ownership of land which is occupied by another person under adverse possession does not interrupt such person’s adverse possession. 13. In the present appeal, the evidence adduced by the appellant was that the land indeed belonged to his late father, and he denied that the respondents had been in possession since 1992, and claimed that they invaded the land in 2010 after the death of his father. Andrew Were Otieno, the original purchaser of the land testified as DW1, while the 1st and 2nd respondents who were DW1’S wife and son respectively, testified as DW3 and DW2. Two additional witnesses who were their neighbors testified as DW4 and DW5.The gist of their evidence was that the appellant’s father sold the land to DW1 in 1992 and he took possession and had been residing thereon with his family who included DW2 and DW3, However, that by the time the seller died on 4th April 2007 he had not perfected the sale and title to the respondents, and the appellant was thereafter registered as owner in 14 th July 2015 after succession proceedings. 14. There is evidence on record that the seller sub-divided the original property in March 1995 when the mutation forms were registered, and the suit property was created and register thereof opened. The evidence by the respondents was that this was done with the intention of transferring and registering them as owners of the suit property; in Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 11 of 10

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this Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 12 of 10

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respect they attended a Land Control Board meeting in 2002, and there was an attempt to register the 2nd respondent in 2010. 15. Given the principles we have set out hereinabove as regards when possession against a registered owner becomes adverse, and the evidence adduced in the trial Court, we accordingly find no reasons to fault the trial Judge for finding as follows: “25. In a claim for adverse possession, there was no requirement for production of a letter of consent from the Land Control Board. In the Public Trustee vs Wanduru (1984) KLR 314 at 320, 326, it is stated that “the provisions of Land Control Act have no application where the claim of title of agricultural land is by operation of law such as adverse possession”. The applicant is only to demonstrate that if the entry was by permission (sale) when does the law treat the permission to terminate for the claim of adverse possession to accrue. In this instance, time began running from around 1999 (after the lapse of 6 years). Therefore, by the time this suit was filed in 2015, 12 years had lapsed. The title the plaintiff obtained in July 2015 did not amount to cancellation of the prescriptive rights which had Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 13 of 10

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accrued to the defendants. In Githu vs Ndeete (1984) KLR 776, the Court of Appeal held that “the mere change of ownership of land occupied by another under adverse possession, does not interrupt such person’s adverse possession.” 16. Our conclusion therefore is that the appellant’s appeal is not merited and it is hereby dismissed with no order as to costs. 17. Orders accordingly. Dated and delivered at Kakamega this 25 th day of September, 2026. P. NYAMWEYA. JUDGE OF APPEAL R. NGETICH JUDGE OF APPEAL RADIDO S.OKIYO JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR Judgment-KAK Civil Appeal No. E065 of 2026 (Formerly KSM Civil Appeal E143 of Page 14 of 10

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