Ogutu v Osore & another (Environment & Land Case 605 of 2014) [2022] KEELC 3795 (KLR)

3. The plaintifi further stated that he has about 4 houses on the suit property and has planted crops and trees on it. That his father, mother and brothers have been buried on it. That he has been on the suit land since 1972 when he was 6 years old, that his father lived on it for 10 years and his mother for 34 years until she passed away in 2006. He produced a handwritten note dated August 20, 1972, certified copy of the register in respect of E. Wanga/Isongo/977 as at April 6, 1999, another handwritten note dated 8th August 1990 grant of letters of administration intestate in respect of the estate of Ramadhan Emitati Kasamani, issued to him on November 10, 2000. He added that when the defendants refused to give him the land, he filed a claim in the Land Disputes Tribunal in 1998 and that there was an appeal against the decision of the tribunal in 1999. He conceded that he has had disputes with the defendants over the land and that trouble started in 1984 when the defendants’ father passed away. That although the land was not surveyed, his father told him that he bought 5.5 acres. 4. Next to testify was Oliver Iddi Oduor Samba, PW2, the plaintifi’s neighbour who stated that the plaintifi’s father purchased 5.5 acres of the suit property from the defendants’ father on August 20, 1972through an agreement which was signed in his presence although he did not sign the agreement. He added that the plaintifi’s father settled his family on the suit property in 1972 and that the plaintifi has been on the land since his childhood. He added that the defendants took back 2 acres of the land leaving the plaintifi with about 2 acres and that the plaintifi and the defendants have had disputes over the land for a long time. 5. Jackson Nyanje Mzee, PW3, reiterated what the plaintifi and PW2 stated about the plaintifi’s father purchasing the 5.5 acres and taking possession with his family, about the defendants taking back 2 acres and about existence of disputes between the plaintifi and the defendants over the suit property. Specifically, he stated that the plaintifi went to the area chief, the District Oficer and later to the tribunal in the course of the disputes. 6. The plaintifi’s case was then closed. The plaintifi later passed away in February 2018 and pursuant to order made on February 17, 2021, was substituted by Abdul Kweyu Ogutu. 7. The first defendant, Omari Osore Were (DW1), testified as the sole defence witness. He stated that the second defendant is his brother. That they had a dispute with the plaintifi which went to the Mumias Land Dispute Tribunal as Case No. 21 of 1997against whose decision he appealed to the Provincial Appeals Committee in Case No. 88 of 1998. That the provincial tribunal upheld the Mumias tribunal decision and he again appealed to the High Court in Kakamega HCCA No. 38 of 1999 and the court set aside the provincial tribunal’s decision. He produced proceedings of both tribunals and added that they have not had a peaceful stay with Hussein Kasamani (the deceased plaintifi) and that the deceased vacated the plot after the High Court decision. That he (DW1) was in possession as at the date of his testimony. He conceded that he signed the handwritten note dated August 8, 1990but added that he did so under duress since the chief had ordered the police to put him behind bars. That the deceased plaintifi vacated the suit property and was not buried on it. That they had many cases with the deceased plaintifi over the suit property, including even a criminal case. He however conceded that the deceased plaintifi’s father bought the plot in 1972 and moved into it the plot the same year. 8. The defence case was then closed. 9. Parties filed and exchanged written submissions. I have carefully considered the pleadings, the evidence and the submissions. The issues that arise for determination are whether the plaintifi has established adverse possession and whether the reliefs sought should issue. 10. The law is that a person who seeks to acquire title to land through adverse possession must prove nonpermissive or non-consensual actual, open, notorious, exclusive, peaceful and adverse use by him or https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3795/eng@2022-06-28 2

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those under whom he claims for the statutory prescribed period of 12 years without interruption. See Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR. 11. The deceased plaintifi’s case was that his father purchased 5.5 acres of the parcel of land known as E. Wanga/Isongo/977 from the defendants’ father, Were Sakane, in 1972 and took possession the same year. The first defendant confirmed as much in his testimony, save for the size of the portion purchased. From the certified copy of the register that was produced in evidence, it is apparent that Were Sakane was registered as proprietor of E. Wanga/Isongo/977 on February 21, 1972and that the defendants became joint registered proprietors of the property on September 2, 1997. The size of the property is indicated as approximately 4.6 hectares which translates to approximately 11.366 acres. The register further shows that a caution was registered against the title on 8th September 1997 in favour of the deceased plaintifi who was claiming a purchaser’s interest. It follows therefore that as at September 8, 1997, the deceased plaintifi acknowledged the defendant’s title and did not, at that point, have any intention to dispossess the defendants. Instead, his intention was to enforce a purchase transaction. This suit was filed three years later in the year 2000, by which time the requisite period of 12 years was far from being attained. 12. The deceased plaintifi acknowledged in his testimony that there were disputes between him and the defendants concerning ownership of the suit property. Those disputes saw the parties appear before the local chief, then the District Oficer, then before the Mumias Land Dispute Tribunal in Case No. 21 of 1997, followed by the Provincial Appeals Committee in Case No. 88 of 1998 and ultimately the High Court at Kakamega in HCCA No. 38 of 1999. Indeed, entry number 10 dated March 30, 1999in the proprietorship section of the aforesaid register is a restriction barring any dealings with the property until the matter of Misc Award No. 80/98 Appeal at the Kakamega Court is heard and determined. Thus, as at 30th March 1999, there was a dispute between the deceased plaintifi and the defendants concerning ownership of the suit property. In those circumstances, the deceased plaintifi cannot claim to have had peaceful use of the suit property for the statutory period of 12 years prior to filing this suit in the year 2000. 13. In view of the foregoing discourse, the plaintifi has failed to establish adverse possession. Consequently, the reliefs sought cannot issue. If what the plaintifi sought to achieve was to enforce a sale transaction, then an OS for adverse possession was not the correct way to go about it. I therefore dismiss the plaintifi’s case. Considering that the first defendant conceded in his testimony that there was a purchase transaction, I order that each party shall bear own costs. DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 28TH DAY OF JUNE 2022. D. O. OHUNGO JUDGE Delivered in open court in the presence of: Mr Munyendo for the plaintifi No appearance for the defendants Court Assistant: E. Juma https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3795/eng@2022-06-28 3

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