Kipling Kipsang Yego v Edward Kimulwo Choge & Priscillah Jemutai Too

208 has been extinguished by reason of adverse possession and or Limitation of Actions Act. (iii) The Respondents be ordered to transfer 3.4 Acres out of land parcel Number KIPLOMBE /KIPLOMBE BLOCK 4(KIPLOMBE) 200 and 1 Acre out of land parcel Number KIPLOMBE/KIPLOMBE BLOCK 4(KIPLOMBE) 208 to the applicant failure to which the Deputy Registrar, High Court do execute the necessary documents to subdivide and effect the transfer of the said portion into the applicant’s name and the Land Registrar Uasin Gishu County do issue a title deed for the two parcels in the name of the applicant, KIPLING KIPSANG YEGO. (iv) Costs of the applicant (sic) be provided for. 2. The Plaintiff’s Originating Summons (OS) is supported by his affidavit also dated 4th August, 2021. The Plaintiff deponed therein that the 1st and 2nd Defendants, who are his biological brother and sister-in-law, Kiplombe/Kiplombe Kiplombe/Kiplombe are Block Block the registered owners 4(Kiplombe)200 4(Kiplombe)208 of and respectively (hereinafter referred to as parcel nos. 200 and 208). The Plaintiff claims to have been in possession and occupation of 3.4 Acres of parcel No. 200 and 1 Acre of Parcel No. 208 (hereinafter referred to as “the suit property”). He explained that the two parcels belonged to his late father, Abraham Mahindi Ngetich, who never registered himself as proprietor thereof. That upon his father’s demise, the 1 st and 2nd Defendants procured registration of the said parcels into their ELC Case No. E023 Of 2021(O.S) Judgment Page 2

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names in 2011. That the Defendants have never claimed the 4.4. Acres since 1956 when he started using it, to date. 3. The Plaintiff averred that he has been planting maize since then without interruption from the Respondents, and he built his house which remains standing on the land. He asserts that the Defendants have adamantly refused to transfer the suit property to his name, which has been prejudicial to him and caused him suffering. He thus approached this court to order the Defendants to transfer the 4.4 Acres comprised in parcel 200 and 208 and being the suit parcel herein. He claimed to have been in actual, peaceful and uninterrupted occupation and use of the suit land by adverse possession for over the statutory period of 12 years since 1956. That in the event of refusal by the Defendants to subdivide and transfer the land, he asked that the Deputy Registrar of the court be ordered to execute the necessary documents on their behalf. 4. The Plaintiff’s OS was opposed through the 1 st Defendant’s Replying Affidavit sworn on 27 th September, 2021. According to the 1st Defendant he, the Plaintiff and one Stephen K. Maindi, the 2nd Defendant’s husband, are born by Jepngetich Ngetich, their late father’s second wife. He deponed that his father came to work in Kimumu in 1952, but was later employed by a British Settler known Jimmy Edward at Ilula. That they stayed there with him until 1960, when they moved to J.P. Krugger Farm in Kiplombe, where they were hosted by their cousin-brother, Kipngeny Arap Rop(deceased), who worked there as a driver. The 1st Defendant explains that in 1964, the owner of the farm ELC Case No. E023 Of 2021(O.S) Judgment Page 3

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offered it for a lease of 10 years, and Kiplombe Farm Limited leased the land. That in 1974, the owner opted to sell the land to Kiplombe Farm Limited, and he obtained permission from his father to take up shares therein, alongside his brother Kipyego arap Singoei from the 1st house. 5. The 1st Defendant deponed that at the time, Kiplombe Farm Limited was administered as a company and the land had not been subdivided. He claims that he and his brother each took 1 share and paid KShs. 4,125/-, and when the land was shared out, they each got their share. He averred that all this time, there were not titles and that the titling process commenced in 1989. He explained that he was allocated 33 Acres but 17 Acres was ceded to the Military through compulsory acquisition. That out of the remaining 16 Acres, 10 Acres went to his father and he remained with 6 Acres in accordance with their respective contribution paid for the one share in the company. The 1 st Defendant further averred that with the blessing and on the direction of their father during his lifetime, they eventually shared their father’s 10-Acre portion, from which he got 3 Acres while his brothers Stephen Maindi and Kipling Ngetich together got 7 Acres. 6. The 1st Defendant explained that the Plaintiff herein later used their maternal uncle’s title as collateral in a debt, and their mother intervened and asked their brother, Stephen Maindi to bail him out, and as a result, the Plaintiff ceded his portion to Stephen in refund for the debt. That as a result, the Plaintiff moved to Kipkenyo in 1992 to settle and later moved to Bayete, ELC Case No. E023 Of 2021(O.S) Judgment Page 4

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Ainabkoi Sub-County. The 1st Defendant thus asserts that the Plaintiff’s claim that he has been in exclusive possession of the suit property since 1956 is false, since at the time, they were living with their father in Kimumu where he worked. He averred that he has been living on his land since they moved there and he got his title from the company in 1996. 7. The 2nd Defendant equally opposed the Plaintiff’s OS by filing her replying Affidavit sworn on 5th September, 2022. She confirmed that she was the wife of Stephens Maindi Ngetich, who is a brother of the Plaintiff and 1st Defendant herein. She admitted that she was the registered owner of parcel No. 200, which was transferred to her by her said husband. She claimed that parcel no. 200 was passed down from the shares entitled to her father-in-law to his sons, and the share registered in her name was her husband’s lawful share. She averred that she and her husband have been in full occupation of the said parcel no. 200. Further, that they have been cultivating it and it has her home. 8. The 2nd Defendant deponed that at no time has the parcel ever been occupied, cultivated on or possessed by the Plaintiff or even lay fallow. That she and her household have remained in peaceful occupation and use of the land. She explained that the Plaintiff unsuccessfully attempted to force himself into the land by attempting to forcefully lock his belongings in one of her employee’s houses immediately after filing this suit. That the matter was reported to Eldoret Police Station and the house restored to the 2nd Defendant’s farmhand/employee. She denied ELC Case No. E023 Of 2021(O.S) Judgment Page 5

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that parcel no. 200 belonged to the Plaintiff, and insists that the Plaintiff has no ownership, occupation or colour of right. She termed the Plaintiff’s allegations untrue and baseless, and asked that the suit be dismissed. 9. The Plaintiff filed a Supplementary Affidavit dated 29 th July, 2022 in further support of his OS. He deponed that the land was purchased by his late father from Kiplombe Farm by buying shares worth KShs. 3,500/- equivalent to 30 Acres, which he gave to the 1st Defendant to hold in trust. He denied that the 1 st Defendant paid KShs. 4,125/- and claimed that the 1 st Defendant only paid KShs. 525/- to the company, which equated to 5.20 Acres. He explained that half of his father’s 30 Acres and half of the 1st Defendant’s 5.20 Acres was compulsorily acquired by the military to establish a training camp. He insists that he has been in occupation of a portion of the suit property which is claimed in the OS by adverse possession, where he farmed, constructed a house and drilled a borehole. 10. He asserts that the family remained on the remaining half of his father’s land, and the 1st Defendant managed the land as the first-born during periods when their father was away visiting his third wife. That however, his father never intended to give him the whole parcel. He states that at some point, their father was displeased with the 1st Defendant’s management and asked him to stop any further management. However, instead of complying, the 1st Defendant took possession of and began farming 10 Acres thereof, effectively locking him and the other dependants out. He averred that their father died before the dispute was resolved and was buried on plot no. 200, yet the ELC Case No. E023 Of 2021(O.S) Judgment Page 6

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other siblings had not received an equitable share from plot no. 208. 11. The Plaintiff averred that the 1st Defendant was entitled to 6.5 Acres, being 4 Acres of the suit land, plus 2.5 Acres that remained after the compulsory acquisition, but instead, he fraudulently, illegally and unlawfully retained 10 Acres. He accused the 1st and 2nd Defendant of fraudulently transferring the land into their names without succession and claims that they reported them to the Police. He states that he lived and worked at Eldoret Polytechnic, but never formally moved out of, abandoned or deserted parcel nos. 200 and 208 as he routinely engaged in farming activities to date. 12. The Plaintiff denied being bailed out of debt and forfeiting his share of the suit land, and instead claimed that the debt he had related to arrears owed to Agricultural Finance Corporation (AFC) over a different parcel of land, which debt was waived by the said Corporation. He maintained that since there were no succession proceedings over the estate of their late father, any purported registration of parcel Nos. 200 and 208 were done through fraud, and are thus illegal, unprocedural and a nullity, and should therefore be revoked and cancelled. He denied that the family of the late Abraham Mahindi Ngetich had ever consented to the 2nd Defendant being registered as the owner of parcel No. 200 and neither had she purchased the same. Hearing and Evidence: The Plaintiff’s Case; ELC Case No. E023 Of 2021(O.S) Judgment Page 7

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13. Hearing of the case commenced on 11.02.2025 when the Plaintiff testified as PW1 and adopted his witness statement dated 29.07.2022 as his evidence-in-chief. PW1 produced the documents in his List of Documents dated 29.07.2022 as PEXb1-17, and those in the List of Documents dated 09.12.2022 as PEXb18-20. He introduced himself as a resident of both Kiplombe on plot no. 200 and 208 Kiplombe, as well as Bindura Scheme in Burnt Forest. PW1 testified that the suit parcels were originally a single parcel on which they all lived from 1959 to 1966. That in 1966, his father took the 1 st and 3rd wife to other parcels. He claimed that their father entrusted the 1 st Defendant as the first born to record his name among the list of shareholders in his place. 14. The Plaintiff testified that in 1977, his father showed him where to build his house, and at the time, the 1st Defendant had already constructed his house. That he put up a house, drilled a borehole, planted trees and developed the suit property. He claims that the house remained on the suit property until 2022 when it was demolished after this case was filed. He informed the court that he lived on the land from 1977 to 1992 when he left for work, but he used to visit. The Plaintiff testified that in 1985 when his father decided to subdivide the land, he removed the 1st Defendant from the land and he left plot no. 200 to another parcel in the same estate. 15. The Defendant testified that as a result, the 1 st Defendant got plot no. 208 and he was registered as owner in 1996, while plot no. 200 was left as family land. The Plaintiff confirmed that plot ELC Case No. E023 Of 2021(O.S) Judgment Page 8

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no. 200 was registered in the name of the 2 nd Defendant, who is his brother’s legal wife without due diligence. PW1 stated that when the parcels were registered in the Defendants’ names, succession had not been done in respect of his late father’s estate. The Plaintiff told the court that he complained to the chief and committee of the land in 2018, but the matter was not resolved. He testified that he was claiming half of parcel no. 200 and 1 Acre of parcel no. 208. 16. On cross-examination by Mr. Maritim, PW1 confirmed that the two parcels have titles. He clarified that he had come to court from Burnt Forest, and that there is no house currently standing on the suit property belonging to him as it was demolished by the 2nd Defendant and her husband. He claimed that between 2011 and 2022, Stephen had his employee living on parcel no 200, and he also had his. He conceded that Stephen Ngetich’s house still stands on parcel no. 200. PW1 further admitted that the 1st Defendant lives on parcel no. 208 and has taken a loan on the title. He told the court that he had planted maize on his portion, but one of his brothers harrowed out the land and replanted the same. 17. PW1 testified that after their mother’s passing, there have been disputes over the land. Although he could not remember the year his mother passed away, he was certain it was after the 1 st Defendant obtained titled in 1996. He admitted that he was a Councillor representing Kipkenyi/Kipkaren Ward from 1997 to 2003, during which time he lived in Eldoret Town. He told this court that he was not aware of the list of Kiplombe Farm ELC Case No. E023 Of 2021(O.S) Judgment Page 9

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Limited, but he had complained to the Directors of the said company, however, it was wound up as soon as the land was subdivided. He reiterated that the 1st Defendant held 34 Acres as trustee for the family, which is where parcel nos. 200 and 208 came from. He claimed that his late father’s residence was on parcel no. 200 and Stephen Ngetich was rightly on the land. 18. PW1 expressly stated that he was contesting the registration of the 1st and 2nd Defendants, and that their customs do not allow the 2nd Defendant to be registered as owner of land. He informed the court that he needed more land from his father’s estate through adverse possession. He confirmed that even though his step-brothers and step-sisters were given their shares and he was not claiming from them, he maintained that he wanted his land back because it was registered in their father’s name but placed with their brother in trust, although he did not have any document to prove the said trust. 19. On re-examination, PW1 testified that he had been in occupation of the suit land from 1959 to 2022 when his house was demolished. He testified that before their late father’s demise, he informed them that parcel no. 200 belonged to the family. He reiterated that he had his employee on the land, and Stephen also had his employee thereon. The Plaintiff testified that his employee left after his house was demolished. 20. The Plaintiff then called Abraham Kiptum Chepkwony who testified as PW2 and adopted his witness statement dated 09.05.2024 as his evidence-in-chief. PW2 introduced himself as ELC Case No. E023 Of 2021(O.S) Judgment Page 10

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a resident of Kiplombe. He told this court that he knew the Plaintiff as his neighbour and childhood friend, as well as his entire family. He claimed that they all live together in Kiplombe and that the Plaintiff lived on parcel no. 200 where his father used to live. He testified that the land was purchased in the year 1975, and the Plaintiff put up his house in 1977-1978 and also drilled a borehole. That however, he heard the Plaintiff’s house was demolished in 2022 although the borehole is still there. He testified that the Plaintiff lived on the suit land until he moved to Eldoret Polytechnic, but he used to return and even while he served as a councillor, he still had workers on the land. PW2 refuted the allegation that the 2 nd Defendant had a house on the land, and claimed that the land was purchased by the Plaintiff and his father. 21. PW2 was cross-examined by Mr. Maritim and he testified that he lives in Kiplombe and that there is currently no house on parcel no. 200. He however admitted that on the date of his testimony, he had not come from Kiplombe. Contrary to his earlier testimony, PW2 testified that as at December, 2024 there was a house standing on the suit property. He informed the court that he had no document to show that the late Abraham Maindi bought land. He claimed however that he did not know that the Plaintiff lived on the land as A squatter. He also could not recall the Plaintiff attempting to forcefully enter the land, or that the Plaintiff was arrested and charged. 22. On re-examination, PW2 maintained that the Plaintiff has been living on the suit land from around 1980/1981. That he learnt in ELC Case No. E023 Of 2021(O.S) Judgment Page 11

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2024 that the Plaintiff’s house was demolished in 2022. This marked the end the testimony of PW2 and the Plaintiff closed his case on 15.05.2025. The Defendants’ Case; 23. When the Defence’ case opened for hearing, the 1 st Defendant testified as DW1. He introduced himself as a farmer and resident of Kiplombe Farm. He adopted his Replying Affidavit dated 27.09.2021 as his evidence-in-chief. He testified that his land is parcel no. 208 which he purchased and the Plaintiff cannot be given that land. He explained that they formed a group to purchase the land to subdivide, upon which he was given 16 Acres, out of which his father got 10 Acres. That later, their father gave him 3 Acres. He testified that they then had the land surveyed and subdivided and he got his title on 11.04.1996. He states that he has lived on the land since then, while the Plaintiff lives in Burnt Forest and has never lived on the suit land. DW1 prayed that the present suit be dismissed as the plaintiff’s claim lacks merit. 24. On cross-examination by Mr. Songok, DW1 testified that they leased the land from 1964, but in 1974 a group of 118 people purchased the land from J.B. Kruger and paid in cash. He explained that he acquired shares in Kiplombe farm alongside Kipserem Choge and Philip Singoei (deceased). That at the time, their father was still alive and staying at his other home in Simat. He testified that his father died and was buried on the 2nd Defendant’s land parcel no. 200 while their mother was buried on his parcel no. 208. He informed the court that his ELC Case No. E023 Of 2021(O.S) Judgment Page 12

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father allowed him to sell cows to purchase the shares, which is why his father got part of the 16 Acres. He clarified that they indeed all lived on the land during the lease, after which he moved to parcel no. 208 measuring 9 Acres, and the rest of the family remained on plot no. 200. 25. DW1 explained that in 1974, he was working in Mumias Sugar Company and the Plaintiff was still in school, while the house in the photographs was built in 1971 and belonged to their mother. DW1 claims that contrary to the Plaintiff’s claim of demolition, the house on the land collapsed in 2023. He told the court that he was aware of a dispute between the Plaintiff and the 2nd Defendant’s husband, and that the Plaintiff constructed another house in 2024, but he was unaware that the Plaintiff made another report to the police. DW1 stated that he could not testify as to how parcel no. 200 was transferred to the 2 nd Defendant. DW1 testified that he was unaware of any shamba boy allegedly left behind by the Plaintiff when he went to Burnt Forest. 26. When he was re-examined, DW1 testified that he had not been sued over inheritance, and neither was he the owner of parcel no. 200. He insists that his land is parcel no. 208. DW1 asserted that the Plaintiff is not on parcel 208 and that he is the only one on the said parcel. He testified that they built their mother a house in 1971, which house did not belong to the Plaintiff. 27. The 2nd Defendant testified as DW2 and adopted her Replying Affidavit dated 05.09.2022 as her evidence-in-chief. She told ELC Case No. E023 Of 2021(O.S) Judgment Page 13

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the court that she lives in Kiplombe but currently works in Nairobi. She confirmed that her land was parcel no. 200 for which she was issued with a title in September, 2011. She produced the Certificate of Official Search as DEXb3. She testified that she got the land from her late husband’s share, who directed the same be transferred to her name. She testified that she has lived on the said plot from 1991 when she got married. DW2 admitted that when she got married, the whole family did live on the land. She stated that the Plaintiff was all along aware the land was registered in her name and he never disputed it, until 2021 when she received a letter from the Plaintiff that she had obtained the title fraudulently. 28. DW2 claims that at one point, her mother-in-law called them and told them that her brother’s land was in danger of being sold because they had taken a loan from AFC. That her husband agreed to repay the loan on the understanding that parcel no. 200 would become theirs. DW2 marked the area list as DMFI1 and stated that her husband’s property was no. 200 thereon. She said that the Plaintiff left with all his animals and with the consent of the whole family, and that she was not aware of any worker left behind by the Plaintiff. She explained that a houseboy lived in the house the Plaintiff had put up for his mother until it collapsed. She testified that during the pendency of this suit, the Plaintiff went and cut trees and the fence and they reported the matter to the police and the forest department. She asserted that the Plaintiff had not been on the land continuously from 1992. That he would only visit whenever ELC Case No. E023 Of 2021(O.S) Judgment Page 14

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there were family functions, but would eventually leave. She asked that the Plaintiff’s case be dismissed. 29. On cross-examination, DW2 testified that although she had pleaded that the land was passed down from her father-in-law, she never met him as he passed away in 1985. She explained that there was no succession done because titles had not been issued. She claimed that there was an agreement done between her deceased husband and the Plaintiff before her mother-in-law, but she had not produced it in court. She states that she was asked by her husband to pay a debt of KShs. 42,000/- and the receipts are with the Plaintiff. She reiterated that the Plaintiff used to live on the suit land in 1991 but left and has not been back since 1992 and he also did not have a worker there. 30. DW2 clarified that one house fell and her husband collected the materials, whereas a second house was demolished by her husband. She testified that the land was transferred to her by her mother-in-law, Anne Ngetich. She went on to clarify that although Anne Ngetich’s name did not appear in the documents, she accompanied Stephen Ngetich to the chief and agreed that parcel no. 200 be registered in her name. That her husband appeared at the land board and brought her the land documents. She stated that the land in her name used to be family land. 31. Under re-examination, DW2 testified that prior to the registration of the land in her name in September, 2011, it was ELC Case No. E023 Of 2021(O.S) Judgment Page 15

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in the name of the government. She clarified that since she got married in 1991, the Plaintiff has never lived on the land and did not have a worker there. She asserted that she had not been sued for disinheriting anyone as the present suit is for adverse possession. 32. DW3 was William Koros, the Senior Chief, Kiplombe Location. He adopted his Affidavit dated 15.10.2021 as his evidence-in-chief. DW3 testified that on 20.06.2019, the Plaintiff approached his office seeking resolution of a land dispute with his brothers Stephen and Edward. DW3 testified that he called the brothers for a meeting on 27.06.2019 at their home. DW3 says that he also informed the secretary of the farm, one Mr. Shedrack Kipsaimo, who keeps the records. That on the agreed date, they met at Stephen Ngetich’s home where he lived with his family including his wife, the 2nd Defendant. That they found village elders, officials and neighbours, however the Plaintiff was not present, and on being called, he said that he had referred the dispute to his lawyers. DW3 produced the minutes of the said meeting as DEXb4. DW3 stated that the Plaintiff had never had a home on the suit property and neither is he a resident of Kiplombe. 33. On cross-examination by Mr. Songok, DW3 testified that he became a chief in 2004 and that he has been a resident of the area since 1970. He testified that he knew the late Abraham Maindi and the suit properties herein parcel nos. 200 and 208 which belonged to his family. DW3 testified that the Plaintiff was entitled to inherit from his late father, and that the Plaintiff ELC Case No. E023 Of 2021(O.S) Judgment Page 16

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was in fact given his land, unless he sold it. DW3 was referred to the Search for parcel no. 200 and he confirmed that it was registered in the 2nd Defendant’s name on 27.09.2011 and a title issued to her on the same date. Although he acknowledged that the Plaintiff was a member of Abraham Maindi’s family, he explained that he first saw him in Kiplombe in 2000 while he first saw the 2nd Defendant in 2004. 34. DW3 testified that he received information from the late Stephen Ngetich that a structure on the land had been demolished. He was however unaware that the Plaintiff left someone to take care of the land or even that the said person was chased away. DW3 could not recognise the structure shown in the photographs or the borehole. In addition, he did not know that the Plaintiff is the one who constructed them. He also explained that their mother used to live there and that house was their house. He further said that at the time of the meeting in 2019, he did not know that the 2nd Defendant had obtained title. 35. On re-examination, DW3 testified that at the meeting of 27.06.2019, the secretary disclosed that everyone had their portion of land and that the Plaintiff had sold his portion. He denied receiving a report about a demolished house on parcel no. 200. He claimed that he only received a report from Stephen Ngetich about a house that was on parcel no. 200 where the 2nd Defendant lives and he referred him to the police. In conclusion, he conceded that he was not the custodian of ELC Case No. E023 Of 2021(O.S) Judgment Page 17

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land records. This being the end of DW3’s testimony, the Defendants’ case was closed. Submissions: 36. At the end of the hearing, the court directed the parties to file their final written submissions. In compliance, the Plaintiff filed submissions dated 08.06.2026 while the Defendants filed their submissions dated 17.07.2026. Analysis and Determination: 37. I have considered the pleadings, the witness testimonies and documentary evidence adduced in court and the submissions filed on behalf of the parties herein and the following issues commend themselves for determination by this court:(i) Whether the Plaintiff has acquired the suit property by way of adverse possession; (ii) Whether a claim anchored on adverse possession can succeed where the Plaintiff has challenged the registered owner’s title for fraud; and (iii) (a) Who shall bear the costs of this suit? Whether the Plaintiff has acquired the suit property by way of adverse possession 38. The Plaintiff’s main claim in his suit is for adverse possession. The doctrine of Adverse possession was enunciated by the Court of Appeal in Mtana Lewa vs Kahindi Ngala Mwagandi (2015) eKLR, as follows:“I have anxiously considered the record of appeal, the grounds thereof, the ruling of the High Court, the rival ELC Case No. E023 Of 2021(O.S) Judgment Page 18

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submissions and authorities cited. Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is averse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act…” 39. Indeed, the major statutory underpinning for the doctrine of adverse possession is Section 7 of the Limitation of Actions Act, which provides as follows:“7. Actions to recover land An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 40. This court needs to determine whether the Plaintiff has proved his claim for adverse possession to justify the proprietary rights of the Defendants being extinguished, and their titles being registered in his name as the proprietor thereof. From Section 7 ELC Case No. E023 Of 2021(O.S) Judgment Page 19

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of the Limitation of Actions Act, and the decision of the Court of Appeal above, the Plaintiff needs to show that:a) That he has made physical entry and is in actual and exclusive possession or occupation; b) That his occupation is non-permissive use, i.e. without permission, consent or licence from the registered owner of the land; c) That his possession is visible, open, notorious and known to the registered owner and the community; d) The possession must be continuous, uninterrupted, unbroken, for the necessary statutory period. 41. On the first element of actual and exclusive possession, the Plaintiff claims that he gained entry into the land since 1956 and that he has remained on the land to date. He further claims to have constructed a house thereon and that he has been farming on the land cultivating maize and has also made further developments. As proof of this, he has produced photographs showing a house on what is claimed to be the suit property. 42. The Defendants have opposed this claim, and stated as well as testified that the Plaintiff has never possessed, occupied or utilised the land. The 1 st Defendant explained that the house shown on the photographs is one they constructed in 1971 for their late mother who lived on the suit property, and at the time the Plaintiff was still in school. This evidence is corroborated by the evidence of the area chief of Kiplombe, who testified as DW3 and stated that the house on the land is where the Plaintiff ELC Case No. E023 Of 2021(O.S) Judgment Page 20

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and 1st Defendant’s mother lived. DW3 was emphatic that the Plaintiff is not a resident of Kiplombe. 43. In a bid to determine the question of whether the Plaintiff was in possession of the suit properties at all, I have gone back to the record of this suit. I note that the Defendants lodged an application dated 15th February, 2023 seeking a temporary injunction restraining the Plaintiff from entering the land, constructing on it, cultivating thereon or carrying out any activity on the land pending the hearing and determination of this suit. The Defendants claimed that at the time of filing this suit, the Plaintiff was not in possession of the suit property, and had in the first year of filing suit chased away the 2 nd Defendant’s workman who was inhabiting her house. The said Application documented instances where the Plaintiff had forcefully attempted to gain entry into the land. 44. In reply, the Plaintiff filed a Notice of Preliminary Objection, where he noticeably did not object to the claims that he was not in possession of the land but had instead attempted to gain entry therein forcefully. The Plaintiff also reiterated his claim that the 2nd Defendant had procured registration over parcel no. 200 fraudulently and was in fact a trespasser who had destroyed his house. This Court granted the said orders on 25 th May, 2023 and no evidence was tabled before this court showing that the Plaintiff had regained entry into the suit land. 45. If indeed the Plaintiff had been on the suit land at the time of filing suit, there is no way the court would have issued an order ELC Case No. E023 Of 2021(O.S) Judgment Page 21

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restraining him from entering the land prior to determination of this suit as that would have effectively evicted him from the suit land without being heard on the merits of the case. For this reason, I am not convinced that the Plaintiff was in occupation or exclusive possession of the suit land prior to the filing of this suit. 46. Furthermore, from the evidence, the parties herein agree that the Plaintiff left the land somewhere around 1991-1992. I note that the Plaintiff claims that he had remained in possession through an employee he left on the land, and who was chased away when his house was allegedly demolished. The Plaintiff did not, however, call this employee to testify that he/she had been employed by the Plaintiff to remain on the land on his behalf since the Plaintiff left the land in 1992 until the year 2022 when he was allegedly chased away. Bearing all this in mind, it becomes clear that the Plaintiff was not in actual possession of the suit land, either in person or through any employee as alleged. 47. Concerning the element of non-permissive possession, Justice Kuloba in the Gabriel Mbui vs Mukindia Maranya (1993) eKLR, had this to say:“(3) The occupation of the land by the intruder who pleads adverse possession must be non- permissive use, i.e., without permission from the true owner of the land occupied. It has been held many times that acts done under licence or permitted by, or with love of, the owner does not amount to adverse possession ELC Case No. E023 Of 2021(O.S) Judgment Page 22

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and do not give the licensee or permitted entrant any title under the limitation statute. If one is in possession as a result of permission given to him by the owner, or if he is in possession of the land as a licensee from possession. the owner, Permissive he is not in adverse occupation is inconsistent within adverse possession.” 48. First and foremost, the Plaintiff claims that he entered the land in 1956 and that he remained thereon since it was his father’s land. That being the case, his stay on the land was essentially permitted as he was a son of the late Abraham Maindi Ngetich. Secondly, since this court has found that the Plaintiff was not in possession of the suit property at the time of filing the suit, the question of whether or not his occupation was with the permission of the registered owners cannot arise. 49. On the issue of the nature of possession, Courts have explained that it is not enough for a party to prove that he has been in possession for the requisite number of years. A claimant must also show that their possession was adverse to the rights and interests of the registered owner. The Plaintiff must demonstrate that he had the animus possidendi to acquire the suit land by way of adverse possession. This can only be proved by the Plaintiff showing the circumstances under which he dispossessed the true owner, or the circumstances under which the true owner’s possession was discontinued. ELC Case No. E023 Of 2021(O.S) Judgment Page 23

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50. The nature of possession was discussed by the Court of Appeal in the case of Wambugu vs Njuguna (1983) KLR 173, which explained as follows:“In order to acquire by the statute of limitations title to land which has a known owner, that owner must have lost his rights to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose of which he intended to use it. The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession of the requisite number of years.” 51. The Plaintiff claimed to be on the land as an owner, or at the very least, a beneficiary of his father’s estate, whom he claims is the original and bona fide owner of the land. Since he claimed to be an owner and/or beneficiary, then he cannot be heard to claim that the nature of his possession was adverse to that of the registered owners. He equally did not evince the requisite animus possidendi required in such claims. That aside, this court has found that the Plaintiff was not in actual and or exclusive possession of the suit land herein. That being the case, the nature of his possession similarly, cannot arise as it was non-existent. ELC Case No. E023 Of 2021(O.S) Judgment Page 24

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52. Moreover, another requirement is that the possession must be continuous uninterrupted, unbroken, for the necessary statutory period of 12 years. This element however requires that the Plaintiff demonstrate he has been in occupation for 12 years immediately prior to filing of this suit. In the present case, the Plaintiff claims that he has been in occupation of the suit property since 1956 and thus asserts that he has acquired the suit property by way of adverse possession having been on the land for way over 12 years. By his own testimony, the Plaintiff admitted that he left the land in 1992 to look for employment. Thereafter, he went to Kipkenyo, where he vied for and won elections to become the Councillor of Kipkenyo Ward. 53. Currently, the Plaintiff admits that he lives in Burnt Forest where he told the court he had come from on the date of his testimony, but he claimed that he visited the suit property. The Plaintiff did not state or show how frequent these alleged visits had been, but it is well settled that occasional activity with long gaps of inactivity fails the test of continuity. It is evident, therefore, that the Plaintiff was not in possession and or occupation of land immediately prior to the filing of the suit. While he has attempted to gain entry into the land after filing the suit, any such attempts to gain entry into the land after the fact appears to have been thwarted by the Defendants. 54. That aside, the law is clear that the 12-year period cannot begin to run unless and until the land is held or registered in the name of a person against whom time can run. In Benson ELC Case No. E023 Of 2021(O.S) Judgment Page 25

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Mukuwa Wachira vs Assumption Sisters of Nairobi Registered Trustees [2016] eKLR, the Court of Appeal explained that:“16. … An order for adverse possession made in favour of a trespasser is enforceable against the person registered as proprietor whose title is extinguished by adverse possession. The High Court in Amos Weru Murigu v. Marata Wangari Kambi and Another (H.C.C.C. No. 33 of 2002 (O.S) (at Kakamega) correctly held that“adverse possession can only arise where land is registered in the name of the person against whom the claim for adverse possession is made for the simple reason that land must be occupied by a trespassing claimant adversely to the title of the owner (proprietor) against whom the claim is made under Section 38 of the Limitation of Actions Act.’ 17.In the instant appeal, the appellant was the registered proprietor when the suit No.2658 of 1998 was instituted in the High Court and consequently an order for adverse possession in favour of a trespassing claimant could be made and enforced against the registered owner or proprietor of the suit land if the trespassing claimant successfully proved his claim for adverse possession. But can time in adverse possession run or start to run against an owner of land who is not registered as proprietor of the suit land but otherwise holds a letter of allotment? It is not difficult to discern that if the suit land is not registered, then ELC Case No. E023 Of 2021(O.S) Judgment Page 26

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compliance with Section 38 (1) may be problematic not least because, a litigant may be unable to show the court that he has become entitled to be registered in respect of land whose title is not yet in place and more importantly, because as at the date of institution of the suit for adverse possession there must be in existence a title which the court can declare to be extinguished by adverse possession under Section 38(1) (supra). Unless such suit land is registered at the time of institution of the suit under any of the statutes referred to in Section 37 of The Limitation of Actions Act, a claim for the title by a trespassing claimant would be misplaced and, a court order would be incapable of being effected.” 55. With respect to parcel no. 200, the Certificate of Official Search produced before this court shows that the land was registered in favour of the 2nd Defendant on 27th September, 2011 which was a first registration. Consequently, the twelve-year period started to run from the said date of registration, and would only culminate on 27th September, 2023. Therefore, as at 5 th August, 2021 when the suit was filed, the Plaintiff’s claim for adverse possession, if at all, against the 2 nd Defendant had not matured. Going by the above deliberations, it is evident that the Plaintiff herein has not satisfied any of the elements necessary to prove an adverse possession claim. ELC Case No. E023 Of 2021(O.S) Judgment Page 27

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(b) Whether a claim anchored on adverse possession can succeed where the Plaintiff has challenged the registered owner’s title for fraud; 56. From the pleadings, evidence and testimony of the Plaintiff, he not only claims to have acquired portions of parcel nos. 200 and 208 by way of adverse possession. The Plaintiff also asserts that the registration of the said parcels in the Defendants’ names was actuated by fraud. He has based his claim on fraud on the allegation that the suit property belonged to his father, and that since he died before the 1 st and 2nd Defendants obtained their titles, then the land should have been subject of succession proceedings. In the absence of proof that there were succession proceedings left, the Plaintiff urges that the transfers of the suit property to the 1st and 2nd Defendant were actuated by fraud, illegality and failure to comply with laid down procedure. 57. By its very nature, a claim for adverse possession is made by a trespasser against the registered owner of the land. It is thus well established that a person cannot succeed in an adverse possession claim without first conceding that the registered proprietor is the true legal owner of the land. It is also trite that in a claim for adverse possession, the claimant must also concede to the legality of the title held by the registered owner as to do otherwise would make the claim of adverse possession legally unsustainable. 58. In this regard, I am guided by the decision of the Court of Appeal in Catherine Koriko & 3 Others vs Evaline Rosa (2020) eKLR, where the court had this to say:ELC Case No. E023 Of 2021(O.S) Judgment Page 28

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“In Haro Yonda Juaje vs Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR it was stated: One cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. It does not lie in the mouth of a claimant to aver that the title held by the registered proprietor was fraudulently acquired and then claim the same parcel of land under the doctrine of adverse possession.” 59. In his Supplementary Affidavit, the Plaintiff pleaded that so far as there was no succession done over his father’s estate, any transfer and registration done over the parcels of land subject herein was fraudulent, illegal and without regard to due procedure. A look at the Plaintiff’s evidence also supports the Plaintiff’s allegation that the 1st and 2nd Defendant acquired registration of the suit properties through fraud. There is the Demand Letter sent to the 2nd Defendant dated 04.02.2021 where he accused her of “taking advantage of his absence to fraudulently, illegally and unprocedurally register the said parcel to Priscillah Jemutai Too”. In the letter to Eldoret Central Police Station dated 12.10.2021, the allegations of fraud are once more repeated, and so is the case in the letter dated 20.04.2018. 60. There is no doubt in my mind that a claim for adverse possession cannot co-exist with a claim that the registered owner’s title was obtained fraudulently. Therefore, aside the finding that the Plaintiff was not in actual possession of the land prior to filing the suit, the Plaintiff’s claim of adverse possession ELC Case No. E023 Of 2021(O.S) Judgment Page 29

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is also automatically defeated due to the claim for fraud imputed on the Defendants’ titles. 61. The singular conclusion in the instant case is that the plea of, and the claim of title based upon the doctrine of adverse possession must fail. (c) Who shall bear the costs of this suit? 62. On costs the court will be guided by the provisions of Section 27(1) of the Civil Procedure Act, which provides that Courts have discretion in awarding the costs of a suit or any litigation. However, the general rule is that costs shall follow the event unless the Court, for good reason, orders otherwise. 63. The Plaintiff has on a balance of probabilities, failed to prove his claim for adverse possession as set out in his Originating Summons filed herein. The Defendants have successfully defended their titles, and have thus emerged as the successful party in this suit. I see no need to deny them the costs of the present suit. Orders:64. The upshot is that the Plaintiff’s Originating Summons dated 4 th August, 2015 is without merit. The same is hereby dismissed with costs to the 1st and 2nd Defendant. 65. Orders accordingly. DATED, SIGNED and DELIVERED at ELDORET this 24TH day of SEPTEMBER, 2026. HON. C. K. YANO JUDGE ELC Case No. E023 Of 2021(O.S) Judgment Page 30

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Ruling delivered in the virtual presence of:Ms. Rotich holding brief for Mr. Maritim for Defendants. Mr. Songok for Plaintiff. Court Assistant - Laban ELC Case No. E023 Of 2021(O.S) Judgment Page 31

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