Joshua Nyangacha Abonyo & 5 others v Crestina Ogur Got

measuring 8 acres, by virtue of the doctrine of adverse possession. 2. The respondent’s case before the trial court was that she was married to one Petro Got (now deceased) sometimes in 1959, and Page 2 of 24

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that her late husband was at the time residing on the suit property, in a homestead he shared with his first wife, who later died. She averred that her late husband thereafter constructed a house for her on the suit property, and the portion occupied by their homestead was clearly demarcated by sisal plants and trees and measured approximately eight (8) acres. She pleaded that her husband died in 1975, leaving her and their children in occupation of the said portion of the suit property. She asserted that she continued to reside thereon and subsequently put up a permanent house, while her son, Charles Owuor Got, also established his homestead on the suit property. She further stated that she had continuously used the remainder of the eight acres for subsistence farming, particularly sugarcane cultivation and livestock rearing. According to her, her occupation had been peaceful, open and uninterrupted since her marriage in 1959. 3. The respondent acknowledged that the suit property was registered in the names of Abonyo Ochola (deceased) and Kilimesh Ochola (2nd appellant), each holding a one-half share. She averred that the portion claimed was given to her husband by Abonyo Ochola, and that the portion she occupied and claimed fell within the one-half share registered in the name of Abonyo Ochola, who was the Page 3 of 24

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father of the 1st appellant. On that basis, she sought a declaration that the appellants’ right to recover the 8-acre portion of the suit property had been extinguished under the Limitation of Actions Act, on the basis that she had been in open, peaceful and continuous occupation and possession of the said portion for a period exceeding twelve (12) years. She further sought an order that she be registered as the proprietor of the 8-acre portion of the suit property by adverse possession. She also prayed for an order restraining the appellants or their agents from interfering in any manner with her peaceful possession and occupation of the said portion of the suit property, as well as costs of the suit. 4. The appellants, in response, filed a replying affidavit sworn by the 1st appellant on 19th November, 2013. They denied that the respondent or her deceased husband had ever been in actual or physical occupation of the suit property. They contended that the respondent was merely a trespasser and specifically denied that she had been in occupation of the alleged 8-acre portion of the suit property openly, continuously and without interruption for a period of more than 12 years. They maintained that the suit property was jointly registered in the names of the 1 st appellant’s deceased father and the 2nd appellant Page 4 of 24 (also known as

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Kilimesh Page 5 of 24

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Ochola) on 1st April 1977, and that the registration constituted conclusive proof of ownership. 5. The appellants asserted that even if the respondent had been in possession of the suit property as alleged, such possession had been with their consent and license, and therefore could not found a claim for adverse possession. They also denied that her occupation had been peaceful, stating that the suit property had been the subject of various disputes before area chiefs, district commissioners and the sub-county commissioner. They challenged the respondent’s claim that she and her son had established homesteads on the suit property and described those averments as baseless and vexatious. The appellants further challenged the respondent’s capacity to lodge the suit before the trial court, contending that she had not demonstrated that she was the legal representative of the estate of her deceased husband, Petro Got. 6. The appellants further contended that neither of them was the legal representatives of the estate of their respective deceased fathers, and could therefore not be sued on behalf of said estates. They also challenged the limited grant of letters of administration ad litem relied upon by the respondent, asserting that it did not Page 6 of 24

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confer a lawful basis for maintaining the proceedings. The appellants additionally stated that the respondent had failed to place before the court sufficient material evidence to establish a valid prima facie case, including failure to produce a certified copy of the title to the suit property. Ultimately, they maintained that the respondent had not acquired any proprietary interest in the suit property by adverse possession, and that her claim ought to fail. 7. The suit proceeded to hearing by way of viva voce evidence. The appellant (PW1) testified that the suit property was registered to Abonyo Ochola (deceased) and Clement Ochola (2nd appellant) in equal portions. She stated that she had lived on the suit property since 1959, having moved there with her late husband, Petro Got, after their marriage. It was her testimony that her husband died in 1981 and was buried on the suit property. She had continued living there without ever vacating since 1959. She testified that the portion she occupied was approximately eight (8) acres, and was demarcated by trees and sisal plants which she and her husband had planted. 8. The appellant further testified that her adult children had established homesteads on the same parcel of land and that they Page 7 of 24

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had never been evicted from the suit property. She stated that the 1st and 2nd appellants were her neighbours, and that they knew her homestead. She maintained that her occupation of the portion of the suit property had been open and uninterrupted, and prayed that the same be transferred to her. 9. PW2, Cornel Odongo Arwa, testified that the respondent was her neighbour, and that she got married to Petro Got in 1959, and settled on the suit property. He stated when he was born in 1945, Petro Got was already in occupation of the suit property. He asserted that the portion occupied by the respondent was demarcated by sisal plants. He stated that the respondent and her sons had constructed permanent homesteads thereon. 10. PW3, Isaiah Odongo Gary, testified that the respondent was his step-mother, and that the suit property was owned originally by Abonyo, who sub-divided it into two equal portions, and transferred one of the portions to the 2 nd appellant. He stated that Abonyo also donated a portion of his share of the suit property measuring eight (8) acres to Petro Got sometime in 1972. He stated that the family of Petro Got had occupied the said portion of the suit property ever since. PW4, Charles Owuor Got, testified that Peter Got was his father. he stated that the portion of the suit Page 8 of 24

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property occupied by the respondent was given to his late father by Abonyo Ochola in 1972. 11. The 1st appellant (DW1) testified that he was the son of Abonyo Ochola (deceased), who initially owned the suit property. He stated that the suit property was registered in the names of his late father, Abonyo Ochola, and Kilimesh Ochola (2nd appellant). He recalled that in 1972, when land officials visited the area, it was agreed that the portion belonging to Abonyo Ochola and that belonging to Ojuok Otieno would be registered in the names of Abonyo Ochola, while the portion belonging to Lawrence Ong'awa Abonyo would be registered in the name of the 2nd appellant. 12. It was further his testimony that in 1975, the late Ojuok Otieno allowed Petro Got, whom he described as his friend, to stay on a portion of the suit property while Ojuok was away working in Kericho. When Petro Got subsequently died in 1983, his family requested permission to bury his remains on the suit property. As the families were good friends, permission was granted and Petro was buried there. According to the 1 st appellant, after the burial, Ojuok Otieno asked the respondent to vacate the suit property, but she pleaded to be allowed to remain temporarily as she looked Page 9 of 24

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for somewhere else to live. Ojuok, however, died before the respondent vacated the suit property. 13. He further stated that members of the Ojuok Otieno family, together with clan members, had on several occasions asked the respondent to vacate the suit property, but without success. He testified that the 3rd appellant, a son of the late Ojuok Otieno, was also residing on the suit property with his family, while the 1st appellant himself lived with his family on his late father’s land. He maintained that the portion claimed by the respondent belonged to the family of the late Ojuok Otieno. Upon crossexamination, the 1st appellant admitted that the respondent is his neighbour, and that his brother, the late Ojuok Otieno, brought her to the suit property in 1972. He stated that the portion she occupied measured approximately six (6) acres. 14. The 2nd appellant (DW3) testified that the suit property was initially owned by his late grandfather, Abonyo Ochola. He stated that his late grandfather subdivided the parcel into three portions. One of the portions belonged to his late father, Lawrence Ong’awa, who died in March 1971. Since his father had died before demarcation, the 2nd appellant stated that he was registered as proprietor of the portion that had belonged to his father, while Page 10 of 24

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the remaining portion was registered in the name of Ojuok Otieno. It was his testimony that Ojuok Otieno worked at a tea factory in Kericho and, during his absence, allowed the respondent’s husband, Petro Got, to temporarily cultivate his portion of the land and take care of it. He stated that Petro Got subsequently died in 1983 and was buried on that portion pursuant to an agreement between him and Ojuok Otieno. He further testified that following Petro Got’s death, the family of the late Ojuok Otieno repeatedly requested the respondent and her family to vacate the land, but she refused or ignored the requests. Upon cross-examination, the 2nd appellant stated that the respondent has been on the suit property since 1961, and that she and her son have erected homesteads thereon. He admitted that the appellants have never obtained any court orders seeking the eviction of the respondent from the suit property. 15. The sons of Ojuok Otieno, that is the 3rd to 6th appellants, in their witness statements, reiterated the averments made by the 1st and 2nd appellants. They maintained that the respondent’s husband was allowed to temporarily settle on the suit property by their late father, Ojuok Otieno, and that after the death of her husband, the family requested the respondent to vacate the Page 11 of 24

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suit property to no Page 12 of 24

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avail. They maintained that the portion of the suit property claimed by the respondent belonged to their family. Upon crossexamination, the third appellant (DW2) stated that the respondent and her family had been in occupation of the suit property since 1972 and had never vacated it, and that the portion they occupied was clearly demarcated by boundaries marked with trees and sisal plants. 16. The 4th appellant (DW4), upon cross-examination, testified that the respondent entered the suit property when he was about 8 years old and that he was, at the time of adducing evidence, over 40 years old. He was unable to estimate the acreage occupied by the respondent but confirmed that she had a homestead on the land, as did her son. He further stated that no court order had ever been obtained to evict the respondent from the suit property, although the matter had been reported to the area Assistant Chief. 17. Upon considering the evidence and submissions on record, Ongondo J., in a judgment delivered on 12 th February, 2020, found in favour of the respondent. The learned Judge held that the respondent had proved her claim for adverse possession over eight (8) acres of the suit property, and consequently ordered the Page 13 of 24

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appellants to transfer the said portion to her. Page 14 of 24

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18. Aggrieved by this decision, the appellants filed the present appeal before us. They proffered four (4) grounds of appeal in their memorandum of appeal dated 8th June, 2020. In summary, the appellants faulted the learned trial Judge for failing to appreciate that they are the registered owners of the suit property. They challenged the learned Judge’s finding that the respondent had proved her claim of adverse possession on a balance of probabilities. They held the view that the learned Judge disregarded the evidence on record, as well as the submissions and authorities cited by the appellants, and therefore arrived at a wrong conclusion. They therefore urged this Court to allow the appeal and set aside the judgment and decree of the trial court. 19. The appeal was heard by way of written submissions. During the hearing of the appeal, it emerged that the appeal had been registered twice, as Civil Appeal No. 146 of 2020 and Civil Appeal No. 165 of 2020, with both appeal numbers relating to the same matter. The appeals were consolidated. 20. In his submissions, Mr. Adawo, learned counsel for the appellants, urged that the trial court had initially found that the respondent’s entry onto the suit property was by permission and consent, but nevertheless proceeded to hold that she had Page 15 of 24

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acquired Page 16 of 24

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the suit property by adverse possession. Counsel contended that the respondent’s own evidence, as well as that of her witnesses, established that she and her late husband entered and remained on the suit property with the consent of the registered owner. He asserted that the respondent failed to demonstrate that her possession was adverse, exclusive and uninterrupted for the requisite statutory period. He argued that where possession commenced with the permission or consent of the owner, such possession could not become adverse unless and until that permission was clearly withdrawn. In his view, the respondent had adduced no evidence showing when the alleged permission was withdrawn or when her possession became adverse. 21. Mr. Adawo also challenged the evidential basis of the trial court’s finding that the respondent occupied eight (8) acres of the suit property. He submitted that neither the respondent nor her witnesses were able to establish the size of the portion allegedly occupied, yet the trial court proceeded to award her the entire eight (8) acres claimed. Counsel further faulted the trial court for failing to properly evaluate the evidence as a whole, and for disregarding material documentary and oral evidence adduced by the appellants. He submitted that the impugned judgment did not Page 17 of 24

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adequately capture the evidence and reasons for the court’s determination, and therefore failed to comply with Order 21 Rules 4 and 5 of the Civil Procedure Rules. 22. In rebuttal, Mr. Onyango, learned counsel for the respondent, submitted that the respondent had proved that she and her family had been in exclusive possession of the disputed 8-acre portion for decades, and that this fact was substantially confirmed by the appellants’ own evidence. He explained that although the appellants disputed the acreage claimed, none was able to displace the respondent’s evidence that she occupied eight (8) acres. On whether the possession was adverse, Mr. Onyango submitted that the respondent’s possession resulted in the dispossession and discontinuance of possession by the registered proprietors. 23. Mr. Onyango argued that, although there was uncertainty as to the precise year when the respondent entered the suit property, the evidence established that she was placed in possession by Ojuok Otieno in 1972 or 1975 and that, following registration of the suit property in the names of Abonyo Ochola and the 2nd appellant on 1st April, 1977, her adverse possession started running from that date. He maintained that by the time the Page 18 of 24

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respondent instituted the suit in November 2013, more than 26 years had lapsed. 24. Counsel further submitted that the respondent’s possession of the suit property was hostile, and that the appellants’ assertion that her occupation was permissive was an afterthought, particularly because their affidavits had expressly described her as a trespasser. In his view, the appellants could not simultaneously contend that she was a trespasser and on the other hand that she was occupying the land with their permission. Mr. Onyango also submitted that the report of the dispute to the area chief did not interrupt the respondent’s adverse possession because she never vacated the suit property and no eviction proceedings or order were ever obtained against her. 25. Finally, counsel submitted that the respondent’s possession had been peaceful, notorious, continuous and uninterrupted for well over the statutory period of twelve years. He argued that, pursuant to Sections 7, 13 and 17 of the Limitation of Actions Act, the registered owners’ title to the disputed portion had been extinguished by operation of law after twelve years of adverse possession. He therefore urged this Court to find that the respondent had established all the requirements to have Page 19 of 24

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acquired Page 20 of 24

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title by adverse possession and consequently dismiss the appeal with costs. 26. This being a first 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 first appeal, we are reminded of our primary role as a first 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.” 27. Having evaluated the record and the grounds of appeal, as well as the rival submissions by the parties and the law, we hold the view that this appeal turns largely on whether the respondent sufficiently established the ingredients of adverse possession with respect to the eight (8) acre portion of the suit property. 28. For a claim of adverse possession to succeed, a claimant must prove that he or she has been in actual, open, exclusive, continuous and uninterrupted possession of the land for a period exceeding twelve years, in a manner that is inconsistent with the title and rights of the registered owner. This Court in Wilson Page 21 of 24

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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.” 29. Similarly, in Ndolo v Kitutu & 8 others (Civil Appeal 394 of 2018) [2022] KECA 1289 (KLR), this Court held that: “For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted use of the land. The physical fact of exclusive possession and the animus possidendi to hold as owner to the exclusion to the actual owner are important factors in a claim for adverse possession. The principles stated in the above holding are also encapsulated in the local legislation referred to elsewhere in this judgment. The direct import of these two provisions is, firstly, that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued, which is the date of dispossession. Secondly, after the expiration of the said twelve years the title of the registered owner shall be extinguished. Thirdly, the person in adverse possession is entitled to a title by possession.” 30. The respondent's case, in brief, was that she had occupied the Page 22 of 24

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eight-acre portion of the suit property with her late husband for Page 23 of 24

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decades, openly, continuously and without interruption, and had established a homestead and cultivated the suit property throughout that period. She had buried her late husband in the suit property. She therefore asserted that the appellants’ right to recover the portion had been extinguished by operation of the law. The appellants, on the other hand, contended that the respondent’s occupation of the suit property was initially permissive, having been allowed thereon by Ojuok Otieno, and could therefore not found a claim for adverse possession. They also disputed the alleged eight-acre portion claimed by the respondent, and challenged the finding that her possession was adverse and uninterrupted. 31. We note that in this appeal, possession of the suit property by the respondent was not disputed. The respondent’s occupation of the disputed portion was substantially corroborated by the appellants’ own evidence. The 1st appellant admitted that his brother, Ojuok Otieno, brought the respondent onto the suit property in 1972 and acknowledged that she occupied a defined portion of it. The 2 nd appellant testified that the respondent had been on the suit property since 1961 and confirmed that she and her son had established homesteads thereon. The 3 rd appellant expressly Page 24 of 24

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stated that the respondent and her family had occupied the suit property since 1972 and had never vacated it, while the 4 th appellant confirmed that the respondent had been on the suit property from the time he was about eight years old, that she had a homestead there and that her son had one as well. 32. That evidence is significant. It not only corroborated the respondent’s assertion of long occupation, but also established that the occupation was open, actual and exclusive. The evidence that the portion occupied by the respondent was marked by clear boundaries made of trees and sisal plants further demonstrated that the respondent’s occupation was of a specific and identifiable portion of the larger parcel of land. 33. The appellants’ challenge to the acreage does not, in our view, displace that conclusion. While the 1 st appellant gave an estimate of eight acres, and later changed his testimony to six acres, the evidence from the appellants as a whole did not challenge or contradict the thrust of the respondent’s case that she occupied a substantially identifiable portion of the suit property. The 3rd appellant confirmed that the portion occupied by the respondent had clear boundaries marked by trees and sisal plants, while the 4th appellant candidly stated that he could not estimate its Page 25 of 24

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acreage. The respondent consistently claimed eight acres, and the evidence established the existence of a distinct, demarcated portion occupied by her and her family for decades. Her evidence was not dislodged by that of the appellants. 34. The more substantial argument advanced by the appellants is that the respondent’s entry was permissive. We accept, for purposes of argument, that the respondent and her late husband, Petro Got, may initially have entered the suit property with the permission of Ojuok Otieno. Indeed, the appellants’ evidence was that Petro Got was allowed to stay or cultivate the disputed portion while Ojuok Otieno was away working in Kericho. But that does not, in the circumstances of this case, lessen the respondent’s claim. 35. The critical question is whether that permission was ever revoked. The appellants themselves testified that following the death and burial of the respondent’s husband in the suit property in 1983, the respondent was asked to vacate from the suit property. The 1st appellant stated that Ojuok Otieno asked her to leave, and that members of the Ojuok family subsequently made several requests for her to vacate. The 2 nd appellant likewise testified that the family repeatedly asked the respondent and her family to leave, Page 26 of 24

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while the 4th appellant confirmed that the matter was reported to the area Assistant Chief. 36. Those admissions are fatal to the suggestion that the respondent remained on the suit property throughout merely by consent of the owner. Even assuming that her initial entry was permissive, the evidence on record demonstrated that such permission was subsequently withdrawn in 1983, when the respondent was asked to vacate the suit property. From the time she was required to vacate but elected to remain in possession, her continued occupation could no longer properly be characterized as occupation by consent. It became occupation in defiance of the asserted rights of those claiming the suit property. 37. This Court in Thomas Muka Maulo & another v Robert Ouma Oduori [2021] KECA 972 (KLR) observed that the moment a permitted occupant defies an order to leave or vacate a suit premise, his possession became immediately adverse to the registered title holder. The Court pronounced itself as follows: “It is common ground that the suit property was registered in the 1st appellant’s name. It is also common ground that the respondent entered the suit property sometime in 1970 or thereabouts with the permission of the 1st appellant who came back in 1974 from Uganda and asked the respondent to vacate the suit land but he Page 27 of 24

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refused…Further, it is Page 28 of 24

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common ground that the respondent built a house on the suit property where he lived with his family, cultivated the land, reared animals and buried his mother and continued living on the property until the time of filing suit in the year 2011… Time did not start running in 2011 when the suit was filed but in 1974 when the respondent was asked to vacate the property but he continued occupation.” 38. We agree with the learned trial Judge that the respondent’s possession was inconsistent with and in denial of the title of the true owner. Once the respondent was required to vacate and nevertheless remained in exclusive occupation and continued to use the portion of the suit property as her own, her possession became adverse. 39. More importantly, there is no evidence that, after requiring the respondent to vacate, the appellants took any effective step to recover possession so as to stop time from running. In Mwangi Githu v Livingstone Ndeete [1980] KECA 35 (KLR) this Court 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 effective entry Page 29 of 24

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into the land.” Page 30 of 24

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40. In the present appeal, there was no re-entry onto the disputed portion of the suit property by the appellants, no suit for recovery of possession of the suit property was filed, and no successful action aimed at dispossessing the respondent of the said portion of the suit property was ever mounted. The 2 nd appellant expressly admitted that the appellants had never obtained a court order for the respondent’s eviction. The 4 th appellant similarly confirmed that no eviction order had ever been obtained, notwithstanding the report to the Assistant Chief. Time therefore continued to run uninterrupted, and long before the institution of the suit in 2013, the respondent's rights by adverse possession had crystallized. The appellants’ contention that the existence of disputes before local administrators rendered the possession non-peaceful or interrupted therefore fails. Time ceases to run where the true owner effectively asserts his right by taking possession or instituting proceedings to recover the land. 41. As regards the complaint that the learned trial Judge awarded eight acres without sufficient evidential basis, we are satisfied that the finding cannot be said to have been made without evidence. The respondent gave evidence of an approximately eight-acre portion, described its boundaries, and her occupation Page 31 of 24

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of that Page 32 of 24

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defined portion was corroborated by her witnesses and, importantly, by the appellants themselves. The appellants’ evidence confirmed the existence of a distinct portion occupied by the respondent and her family, bordered by trees and sisal plants. Their inability, or unwillingness, to give a different reliable acreage could not, on the balance of probabilities, defeat the respondent’s claim. 42. Ultimately, the evidence on record established all the essential elements of adverse possession. The respondent was in actual and exclusive possession of a defined portion of the suit property; her demonstrated possession by her was open homestead, and her notorious, son’s as homestead, cultivation and the clear demarcation of the portion; and, following the withdrawal of any permission that may initially have existed, her possession was hostile to the proprietary interests asserted by the appellants. Most importantly, that possession continued uninterrupted for a period vastly exceeding the statutory twelve years. 43. In the result, we are satisfied that the respondent proved on a balance of probabilities that she had been in open, continuous, exclusive and uninterrupted occupation of the eight-acre portion of the suit property for a period far in excess of twelve years. Page 33 of 24

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We Page 34 of 24

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find no error in the learned trial 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. 44. Accordingly, the appeal lacks merit and is dismissed with costs to the respondent. Dated and delivered at Kisumu this 25 th 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. Page 35 of 24

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