Johnson Adipo v Lawi Guya Nyinya

b. Whether the Plaintiff/Applicant herein is entitled to land parcel No. KISUMU/KORANDO/4273 and whether the applicant purchased 0.19 Hectares of land to be exercised Defendant/Respondent land from parcel the above mentioned. c. Whether peacefully the Plaintiff/Applicant and continuously KISUMU/KORANDO/4273 since has lived on land No. 1989 and has established a homestead. d. Whether the Respondent/Defendant’s proprietary interest in the said portion of the said land parcel No. KISUMU/KORANDO/4273 has been extinguished by virtue of the Applicant’s adverse possession and whether the Respondent is now holding the title for the said portion of the said parcel of land in that for the Plaintiff/Applicant. e. Whether the said KISUMU/KORANDO/4273 transferred ELC (OS) E023/2022 and land should registered JUDGEMENT in parcel No. now be favour of the 2

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Applicant/Plaintiff in place of the Defendant/Respondent. f. Whether acquired the Plaintiff/Applicant title to land KISUMU/KORANDO/4273 (0.19 has therefore parcel Ha) by way No. of adverse possession. g. The Deputy Registrar and/or the Executive Officer of the Honourable Court be directed and/or ordered to execute the transfer instruments and all attendant documents, to facilitate the transfer of the parcel of land KISUMU/KORANDO/4273 approximately 0.19Ha number measuring in favour of the Plaintiff/Applicant in the event of default by the Defendant/Respondent to execute the necessary transfer documents. h. An order that the Respondent be condemned to pay costs of this suit. 2. The Plaintiff's case is that the Defendant, Mr. LAWI GUYA NYINYA, is the registered owner of land parcel known as ELC (OS) E023/2022 JUDGEMENT 3

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KISUMU/KORANDO/4273 (the suit land) which was a resultant parcel of subdivision of land parcel known as KISUMU/KORANDO/1776 situate in Kisumu County. That he had bought a portion of land parcel No.KISUMU/KORANDO/1776 from the Defendant in the year 1989. That in the year 1991 the Defendant subdivided land parcel No. KISUMU/KORANDO/1776 KISUMU/KORANDO/4273 subdivision, the and portion 4274. he That had into due bought to the became KISUMU/KORANDO/4273 measuring approximately 0.19Ha. That thereafter, the Defendant refused to transfer the sold land in his favour. 3. The Plaintiff contends that he had occupied the suit land since the year 1989, established his homestead thereon, which comprises a permanent house and temporary structures, and planted trees. That he had been in peaceful and open possession of the suit land for a period of over 33 years and that the Defendant has never raised any claim over the suit land despite being well aware of the ELC (OS) E023/2022 JUDGEMENT 4

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occupation. That he had therefore acquired title to the sold portion of the land by adverse possession. 4. The Defendant filed his Replying Affidavit sworn on 12 th September 2023. His case is that he is the registered owner of the suit land. That sometimes in the year 2012 the Plaintiff approached him with an intention to buy his (Defendant’s) land, but they had not agreed on the purchase price. 5. The Defendant contended that the Plaintiff has not used the suit land for over 12 years. He contended further that the Plaintiff’s occupation of the land has not been continuous or peaceful. That he (Defendant) has on many occasions been declining the Plaintiff's offer to purchase the land, informing him to vacate the premises, and that due to his age and ill health he (Defendant) has not been able to institute legal proceedings against the Plaintiff. The evidence 6. Pursuant to directions given on 18th September 2023, the matter was disposed of by way of viva voce evidence. The ELC (OS) E023/2022 JUDGEMENT 5

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Plaintiff testified as PW1 and called 5 witnesses. He produced exhibits in support of his case, namely, a certificate of official search for KISUMU/KORANDO/1776 showing that the land was registered in the name of Lawrence Guya Nyinya before the title in respect thereof was closed upon subdivision into KISUMU/KORANDO/4273 and 4274, a copy of sale agreement dated 11/5/1989, a certificate of official search for KISUMU/KORANDO/4273, a survey report, a copy of chief’s letter dated 31/10/2022, a copy of death certificate for Meshack Owira Adipo, a bundle of 3 photographs, a copy of demand letter dated 22/9/2022 and copies of identification cards. 7. On cross-examination, the plaintiff stated that he made the last payment of the purchase price in 1993. That Lawrence Guya Nyinya was the same person as the Defendant herein. 8. PW2, a son of the Plaintiff, testified that the Plaintiff’s home was on the suit land. PW3 testified that he was a neighbor of the Plaintiff and that he witnessed payment of part of the purchase price. PW4 was the Chief of the area. He testified that the Plaintiff built his home on the suit land in the year ELC (OS) E023/2022 JUDGEMENT 6

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1996 and that he (the Plaintiff had been staying there with his family. That the Plaintiff had buried his deceased firstborn son on the land about 20 years ago. That he had been chief of the area since 1994. 9. PW5 was a surveyor who was stood down because he was not the maker of the report sought to be produced. PW6, Mr. Patrick Opiyo, testified that he was the surveyor who prepared the survey report on the suit land. He stated that on the ground, the land was occupied by Johnson Adipo, and that there were houses for Johnson and his sons on the land. 10. The Defendant testified as DW1. He adopted the contents of the Replying Affidavit and witness statement dated 10/6/2024 as his evidence. He stated that they had an agreement with Adipo, who later tricked him and filed an objection. On cross-examination, the Defendant stated that he owned land known as KISUMU/KORANDO/1776, that he subdivided the land into 2 pieces, and that the Plaintiff resides on one of the pieces. That in 1989, they entered into a written agreement and that he was not paid the entire ELC (OS) E023/2022 JUDGEMENT 7

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amount of the agreement. That he was still owed Kshs 280, 000/. Submission 11. Although directions were given for parties to file closing submissions on the case, only the Plaintiff filed written submissions dated 18th May 2020 through the firm of Nyatundo & Company Advocates. Analysis and determination The first question on the Originating Summons is whether or not the Defendant/Respondent is the registered owner of land parcel known as KISUMU/KORANDO/4273. 12. The issue of who the registered owner of the suit land is, was not disputed. The Plaintiff pleaded in paragraph 2 of the Supporting Affidavit that the Defendant was the registered owner of the suit land. To the Supporting Affidavit, the Plaintiff attached a copy of a certificate of official search dated 14th October 2023, which shows that the suit land measuring 0.19Ha was registered in the name of the Defendant on 3rd April 2012. The Defendant admitted this ELC (OS) E023/2022 JUDGEMENT 8

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fact vide paragraph 3 of the Replying Affidavit and through his testimony. The second and third questions for determination relate to the issue of adverse possession, whether or not the Plaintiff had become entitled to title to the suit land by adverse possession. 13. From the evidence adduced, although the Plaintiff entered onto the suit land on the basis of a purchase, the purchase failed when the Defendant refused and/or failed to transfer the sold land to the Plaintiff. The Plaintiff’s continued occupation of the land therefore became adverse, and time began to run in favour of the Plaintiff. 14. The Plaintiff’s occupation of the suit land was not denied. And although the Defendant denied that the stay was peaceful, continuous and uninterrupted, he adduced no evidence of any interruption of the occupation. On the other hand, the Plaintiff called a surveyor as a witness who testified as to the developments in the suit land, which include homes for the Plaintiff and his sons. The Plaintiff also produced photographs showing the developments. The ELC (OS) E023/2022 JUDGEMENT 9

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Defendant testified that it was in the year 1989 that he entered into the agreement with the plaintiff. 15. Although the Defendant claimed that the Plaintiff owed him part of the purchase price, he had no evidence to show this. He also had no evidence that he had taken any steps towards recovery of the alleged balance of the purchase price or the land from the Plaintiff. 16. The elements of adverse possession as stated in the case of Mtana Lewa –vs- Kahindi Ngala Mwagandi [2015] e KLR are that “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it, and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or by action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 17. I find that adverse possession has been proved by reason of the period the Plaintiff has been in occupation of the suit land and the nature of his occupation being ELC (OS) E023/2022 JUDGEMENT 10

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peaceful, exclusive and continuous with the knowledge but without the permission of the Defendant. The next question is whether the Respondent/Defendant’s proprietary interest in the said portion of the said land parcel No. KISUMU/KORANDO/4273 has been extinguished by virtue of the Applicant’s adverse possession and whether the Respondent is now holding the title for the said portion of the said parcel of land in that for the Plaintiff/Applicant. 18. Under the provisions of section 17 of the Limitation of Actions Act, title or the rights of an owner of land become extinguished if such owner fails to take action to assert his or her rights before the expiry of the limitation period. For the recovery of land, under the provisions of section 7 of the limitation of actions act, the limitation period is 12 years from the date the cause of action accrued. In the present case the Plaintiff’s case is that he has been on the suit land for a period in excess of 33 years. Hence the Defendant's title to the suit land became extinguished when he failed to bring an action to assert his title before the expiry of the ELC (OS) E023/2022 JUDGEMENT 11

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limitation period. As his title has become extinguished, the Defendant is presently holding title in trust for the Plaintiff. 19. The next set of questions on the Originating Summons relate to the transfer of the suit land to the Plaintiff, namely whether the said land parcel No. KISUMU/KORANDO/4273 should now be transferred and registered in favour of the Applicant/Plaintiff in place of the Defendant/Respondent, whether the Plaintiff/Applicant has therefore acquired title to land parcel No. KISUMU/KORANDO/4273 (0.19 Ha) by way of adverse possession and whether the Deputy Registrar and/or the Executive Officer of the Honourable Court should be directed and/or ordered to execute the transfer instruments and all attendant documents, to facilitate the transfer of the parcel of land number KISUMU/KORANDO/4273 measuring approximately 0.19Ha in favour of the Plaintiff/Applicant in the event of default by the Defendant/Respondent to execute the necessary transfer documents. 20. Having determined that the Plaintiff has proved adverse possession and that the Defendant’s title to the suit land had become extinguished and that he now holds the land in trust ELC (OS) E023/2022 JUDGEMENT 12

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for the Plaintiff, it follows that an order for the transfer of the suit land in favour of the Plaintiff is merited. 21. Regarding costs of the suit, taking into account the age of the Defendant and the fact that the two parties are neighbours, it is fair that each party bears its own costs. 22. I find that the Plaintiff has proved his claim on a balance of probabilities. The upshot is that the plaintiff’s claim is allowed and judgment entered in his favour for i. A declaration that the plaintiff has acquired title to the suit land KISUMU/KORANDO/4273 parcel number by adverse possession. ii. An order for the Defendant to transfer the suit land parcel number KISUMU/KORANDO/4273 forthwith, in default of which the Deputy Registrar of the Court shall sign all documents necessary for the transfer and registration of the suit land in favour of the Plaintiff. ELC (OS) E023/2022 JUDGEMENT 13

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iii. Each party shall bear its own costs of the suit. Orders accordingly. Judgment dated and signed at Kisumu and delivered this 1st day of October, 2026, virtually through Microsoft Teams Online Application. E. ASATI, JUDGE. In the presence of: Atika: Court Assistant. Omedo for the Plaintiff. No appearance for the Defendant. ELC (OS) E023/2022 JUDGEMENT 14

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