Wasike & 2 others v Ambasa

3. The respondent further averred that his 1.25acre portion remained in the suit property. However, the 1st appellant transferred the whole of the suit property to his daughters, the 2nd and 3rd appellants respectively, including the portion that had been purchased by the respondent. The respondent maintained that he had been in open, continuous, and uninterrupted occupation of the said portion of land for a period of over 30 years. Consequently, although the appellants remain the registered proprietors of the suit property, their title to the 1.25-acre portion had, by operation of the doctrine of adverse possession, been extinguished. He further contended that despite his occupation and accrued rights, the appellants had declined to transfer the said portion of land to him. He averred that there is a distinct boundary between his portion of the suit property and the portion occupied by the appellants. 4. The respondent prayed for a declaration that the appellants held the title in respect of portion of the suit property measuring 1.25 acres in trust for the respondent; that he had acquired prescriptive rights over the said portion of land by adverse possession; He also prayed that the title in respect of the suit property held by the appellants be cancelled, and a new title be issued in his favour and a declaration; and that he had validly purchased the portion of the suit property from the 1st appellant. 5. The 1st appellant, in response, led a replying adavit dated 11th May, 2016. He conceded that he entered into a sale agreement with the respondent in respect of the sale of a portion of the suit property measuring 50 by 100 feet, but that the agreement was rendered invalid by operation of the law. He deponed that the respondent paid the rst installment being a sum of Kshs.20,000/=, but failed to settle the balance of Kshs.8,500/=, which balance remained unpaid. The 1st appellant averred that he allowed the respondent to take possession of the portion of the suit property measuring 50 by 100 feet. He deponed that when the respondent took possession, he started claiming that the 1st appellant sold him a portion of land measuring 1.25 acres, which was false. He swore that he and the respondent had been involved in a longstanding dispute over the suit property, and that eorts by the area chief to resolve the dispute proved futile. 6. The 1st appellant further averred that he discovered that the respondent had allegedly forged his signature on mutation forms presented to the land registry for registration. He stated that he reported the matter to the Directorate of Criminal Investigations (DCI), following which the respondent was summoned for interrogation. He further stated that the respondent had, on several occasions, lodged complaints against him before the National Land Commission. According to him, these persistent disputes and complaints negated the respondent’s claim for adverse possession, as the parties had been embroiled in disputes over the suit property throughout the period in question. He maintained that the respondent’s occupation of the suit property was permissive in nature and not adverse. He further contended that he sold to the respondent a portion only measuring 50 by 100 feet, and not the 1.25 acres claimed by the respondent. 7. The 2nd and 3rd respondents led their respective replying adavits sworn on 11th May, 2016. They reiterated the averments made by the 1st appellant in his replying adavit. They further deponed that the 1st appellant, on 2nd February, 2016, transferred to them the whole of the suit property free of any encumbrances. They averred that the respondent occupied a portion of the suit property measuring 50 by 100 feet, and not 1.25 acres claimed by the respondent. 8. The matter proceeded to hearing by way of viva voce evidence, during which the parties substantially reiterated the averments contained in their respective pleadings. Upon considering the evidence and submissions on record, Matheka J., in a judgment dated 24th September, 2019, entered it in favour of the respondent. The learned Judge found that the respondent had proved his claim for adverse possession over a portion of land measuring 1.25 acres of the suit property and consequently ordered the appellants to transfer the said portion to him. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1943/eng@2026-09-25 2

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9. Aggrieved by this decision, the appellants led the appeal before us. They proered seven (7) grounds of appeal, in their memorandum of appeal dated 14th November, 2019. In summary, the appellants faulted the learned trial Judge for nding that the respondent had established a claim for adverse possession over 1. 25 acres of the suit property. They contended that the decision was contrary to the evidence on record and unsupported by sucient material. In particular, they argued that the respondent had not proved payment of the full purchase price and that time for purposes of adverse possession had not begun to run, or, if it had, the Judge failed to determine when it commenced. 10. The appellants further challenged the trial court’s reliance on contested and allegedly inadmissible documents, including a purported sale agreement that did not support the acreage claimed by the respondent. They maintained that the respondent’s occupation of the suit property was neither peaceful, continuous nor exclusive, given the longstanding disputes between the parties, and that any occupation was permissive rather than adverse. They asserted that the respondent’s possession was tainted by allegations of fraud, force and deceit, thereby disentitling him from the reliefs sought. Additionally, they faulted the learned Judge for improperly shifting the burden of proof to the appellants, and for basing the judgment on conjecture, speculation, and unveried evidence. They therefore urged this Court to allow the appeal as prayed. 11. The appeal was canvassed by way of written submissions. Mr. Shiloya holding brief for Mr. Akwala appeared for the appellants during the plenary hearing of the appeal. It was his submission that the learned Judge erred in nding that the respondent had proved his claim for adverse possession to the required standard of proof. He argued that the respondent failed to establish exclusive, peaceful, open and uninterrupted possession of the suit property for the requisite statutory period of twelve years. He argued that according to the appellants, the respondent entered the land pursuant to a sale agreement in 1986 for a portion of land measuring 50 x 100 feet and not 1.25 acres as claimed. The respondent allegedly failed to pay the balance of the purchase consideration of Kshs. 8,500/=, and therefore remained on the land with the permission and license of the 1st appellant. Consequently, time for purposes of adverse possession could not begin to run until the contract was completed by payment of full purchase price. 12. Counsel additionally urged that the respondent’s occupation arose from a purchaser’s interest under a sale agreement, and therefore could not simultaneously form the basis of a claim for adverse possession. Counsel further asserted that the trial court ignored their evidence which established that the parties had engaged in continuous disputes over the land, including complaints before the area chief, the County Land Management Board, and investigations by the police, all of which negated any claim of peaceful and uninterrupted occupation. 13. Counsel for the appellants further submitted that the trial court improperly relied on contested and inadmissible documentary evidence. He maintained that the respondent failed to prove payment of the balance of the purchase price, and failed to authenticate alleged alterations and acknowledgements contained in the sale agreement, with respect to payment of the second installment. The witnesses who allegedly attested to the subsequent payment were not called to testify before the trial court, and the respondent did not establish that the 1st appellant’s signature was genuine in accordance with sections 70 and 74 of the Evidence Act. He therefore argued that the trial court erred in relying on defective and uncorroborated evidence to conclude that the purchase price had been fully paid. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1943/eng@2026-09-25 3

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14. Counsel for the appellants also challenged the nding that the respondent was entitled to 1.25 acres. He maintained that the sale agreement related only to a portion measuring 50 x 100 feet, and that no survey report or expert evidence was produced to support the respondent’s assertion that he occupied 1.25 acres. In their view, the trial court relied solely on the respondent’s unsubstantiated testimony and awarded a larger portion than that which had been contemplated under the agreement. 15. Lastly, counsel for the appellants submitted that the learned Judge improperly shifted the burden of proof to the appellants, failed to evaluate their evidence and submissions, and based her decision on conjecture and uncorroborated evidence. He therefore invited us to allow the appeal, set aside the judgment of the Environment and Land Court, and dismiss the respondent’s claim with costs. 16. In rebuttal, Mr. Manyoni learned counsel for the respondents, made submissions to the eect that the learned Judge properly found that the respondent had proved his claim for adverse possession on a balance of probabilities. He explained that the respondent had been in actual occupation of the portion measuring 1.25 acres, had carried out developments thereon, and that the appellants failed to adduce any evidence to dislodge his testimony. He argued that the respondent’s evidence remained unshaken during cross-examination and therefore justied the trial court's ndings. 17. Counsel further contended that the respondent had paid the full purchase price for the land, and relied on the sale agreement which contained an acknowledgment that the purchase price had been paid in full, countersigned by the 1st appellant. He submitted that time for purposes of adverse possession began running six months after execution of the agreement in 1986 and that by the time the respondent instituted suit, he had occupied the land for a period of well over twelve years. 18. Regarding the challenge to documentary evidence, counsel for the respondent argued that all documents relied upon by the respondent were properly admitted in evidence during trial without objection from the appellants. Consequently, the appellants could not challenge their admissibility for the rst time on appeal. 19. On the extent of the land occupied by the respondent, counsel submitted that the trial court correctly awarded the respondent 1. 25 acres, being the portion of land he occupied and had purchased and had been excised from the original parcel of land. He asserted that following subdivision of the original parcel of land, the portion he occupied remained within parcel No. Butsotso/Shikoti/14610, which was later fraudulently transferred by the 1st appellant to the 2nd and 3rd appellants. Finally, counsel submitted that the learned Judge neither shifted the burden of proof nor misapprehended the evidence. He urged that the appeal merely challenged ndings of fact without demonstrating any error of law and therefore urged this Court to dismiss it with costs. 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: “ 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 appellant, we hold the view that this appeal turns largely on whether the respondent established the ingredients of adverse possession with respect to 1.25acre portion of the suit property. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1943/eng@2026-09-25 4

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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. This Court in Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another [2015] KECA 728 (KLR) had this to say: “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.” 23. The respondent's case, in brief, was that he purchased a 1.25- acre portion of the original parcel of land from the 1st appellant in 1986, paid the agreed purchase price in full, and immediately took possession thereof. Since then, he had openly occupied and developed the land without interruption for a period exceeding thirty years. He therefore maintained that by the time the suit was instituted, he had acquired title to the occupied portion by adverse possession, and that the subsequent transfer of the entire suit property to the 2nd and 3rd appellants could not defeat the rights that had already accrued in his favour. 24. The appellants' principal argument in this appeal was that the respondent did not pay the balance of the purchase price and therefore remained on the land with the permission of the 1st appellant. They further contended that the respondent failed to prove the authenticity of the 1st appellant's signature appearing on the acknowledgment endorsing payment of the balance of the purchase price. 25. It is a settled principle that he who alleges must prove. Section 109 of the Evidence Act provides thus: “ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person." 26. Having specically alleged that the signature was not that of the 1st appellant, the burden, pursuant to the provisions of Section 109 of the Evidence Act, lay upon the appellants to adduce evidence demonstrating the alleged forgery or lack of authenticity. Beyond bare allegation, no expert evidence or other cogent evidence was tendered to establish that the signature was not that of the 1st appellant. In the absence of such evidence, the learned Judge cannot be faulted for accepting the document as produced. Indeed, the appellants did not object to the production of the said agreement in evidence. 27. More importantly, the conduct of the 1st appellant is wholly inconsistent with the assertion that a balance of Kshs. 8,500/= remained outstanding. If indeed the respondent failed to pay the balance in 1986, it is inconceivable that the 1st appellant would have taken no steps whatsoever to recover the alleged debt, rescind the agreement, or recover possession of the land for period over three decades. The record discloses no demand, suit, or other action seeking payment of the alleged balance of the purchase consideration. We are satised that the allegation of non-payment of the said balance was an afterthought advanced in a futile bid to defeat the respondent's claim. 28. We further note that the 1st appellant admitted to selling a portion of the suit property measuring 50 by 100 feet to the respondent, and admitted that the respondent had been in occupation of that portion for many years. Yet, notwithstanding that knowledge, he proceeded to transfer the entirety of parcel No. Butsotso/Shikoti/14610 to the 2nd and 3rd appellants. No plausible explanation was oered as to why he would transfer the whole parcel of land to his daughters if, as he claimed, he had previously https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1943/eng@2026-09-25 5

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sold and surrendered possession of a portion thereof to the respondent. That conduct lends credence to the respondent's case that the transfer was undertaken in disregard of his long- established interest in the land. 29. The appellants further contended that the respondent failed to prove open, peaceful, exclusive and uninterrupted possession of his portion of the suit property. The evidence on record points to the contrary. The respondent testied that he entered the land in 1986, established his homestead thereon, and undertook developments on the property. Photographs of the developments were produced in evidence. Signicantly, the appellants acknowledged the respondent’s occupation of the suit property. Such evidence demonstrates possession that was open, visible and notorious. It was not a secret occupation capable of escaping the attention of the registered proprietors. 30. Equally important is the evidence regarding the identity of the land occupied by the respondent. The respondent consistently maintained that there existed a clear physical boundary separating his portion from that occupied by the appellants. He had planted trees along the said boundary which had matured. The trial court accepted that evidence. The existence of a dened boundary on the ground answered the appellants' complaint that the portion of land claimed was uncertain or incapable of identication. The learned Judge cannot therefore be faulted for nding that the respondent's occupied portion of land was ascertainable and distinct. 31. The appellants also argued that time never began to run for purposes of adverse possession, or alternatively that the trial court failed to determine when it commenced. The law is settled that where a purchaser takes possession pursuant to a sale agreement and pays the purchase price, time begins to run once the period within which the transaction ought to have been completed lapses, and the purchaser remains in possession without transfer of title. This Court in Public Trustee v Wanduru Ndegwa [1984] KECA 72 (KLR) observed that a purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run as against the vendor. 32. In the present case, the respondent entered possession in 1986, having paid the purchase price, and remained there continuously thereafter. Even accepting the appellants' version of events that the sale was not completed, nothing on record demonstrates any eective assertion of ownership rights capable of interrupting 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.” 33. In the present case there was no re-entry onto the suit property by the 1st appellant, no suit for recovery of possession of the suit property, and no successful action aimed at dispossessing the respondent of the suit property. Time therefore continued to run uninterrupted, and long before the institution of the suit in 2016, the respondent's rights by adverse possession had already long crystallized. 34. We do not agree with the appellants’ assertion that disputes before the chief or complaints to public oces interrupted adverse possession. Time ceases to run where the true owner eectively asserts his right by taking possession or instituting proceedings to recover the land. Mere complaints or disagreements between parties do not amount to dispossession of the respondent nor do they interrupt actual occupation. The evidence before the trial court showed that despite the alleged disputes, the respondent remained physically in possession of the land throughout the stated period. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1943/eng@2026-09-25 6

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35. Finally, we nd no merit in the appellants’ complaint that the learned Judge shifted the burden of proof to them. The respondent discharged his burden of proof by demonstrating his entry into possession in 1986, the nature and extent of his occupation, the developments undertaken on the land, and the fact that he has remained thereon for a period of over thirty years. Once that evidence was placed before the court, the evidential burden of proof shifted to the appellants to rebut it. The learned Judge merely weighed the competing evidence, and found the respondent's account more credible, a nding we arm. 36. In the result, we are satised that the respondent proved on a balance of probabilities that he had been in open, continuous, exclusive and uninterrupted occupation of the 1.25-acre portion of parcel No. Butsotso/Shikoti/14610 for a period far in excess of twelve years. We nd no error in the learned Judge's conclusion that the appellants' title to that portion had been extinguished by operation of law and that the respondent had acquired title thereto by adverse possession. 37. Accordingly, the appeal lacks merit and is dismissed with costs to the respondent. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 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/2026/1943/eng@2026-09-25 7

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