Keya & another v Musa

e. An order directing the District Survey Kakamega County to amend registration maps for Shinamwenyuli Registration Section Diagrams 6 and 9 12 and 13th Editions for the 8 acres of land to be included under Land Parcel No Marama/Shinamwenyuli/817 and NOT 899. f. An order directing the Land Registrar Kakamega County to amend the registers in respect of Land Parcel Nos. Marama/Shinamwenyuli/899 and 817 for the 8 acres of land to be included on Land Parcel No. Marama/Shinamwenyuli/817. g. An order that the Respondent do sign all relevant documents to facilitate subdivision and transfer of 8 acres out of Land Parcel No. Marama/Shinamwenyuli/899 to the applicants and that in default the Deputy Registrar of this Honourable Court to sign the same. h. An order that the Respondent be condemned to pay costs of this suit. i. Such other orders or reliefs as this Honourable Court may deem just and reasonable to grant. 2. The OS is supported by an adavit sworn by Francis Eyinda Keya. He deposed that the defendant is the registered proprietor of the suit property and that during land adjudication, 8 acres of land parcel number Marama/Shinamwenyuli/817 were erroneously included in the suit property. That the plaintis have been in peaceful and exclusive possession of the 8 acres from 1963 to the date of ling the OS. That they grow maize, sugarcane, cassava, arrow roots, bananas, and potatoes on the 8 acres. 3. The defendant opposed the OS through a replying adavit in which he deposed that he is the registered proprietor of the suit property which measures 28 acres. That he was registered as proprietor on 21st September 1964 and that the rst plainti was born in 1960 hence it is impossible that he would have been in occupation of the 8 acres from 1963 as he claims. That he left the plaintis’ father was the initial registered proprietor of parcel number Marama/Shinamwenyuli/817 to tend cane crop on the suit property for 6 years while he (the defendant) was away in Mombasa for almost 6 years and that upon the demise of the plaintis’ father, the plaintis encroached on the suit property. That the plaintis apologised at a meeting held on 7th July 2013. He further deposed that the second plainti built a house on the suit property in 1994 and that he (the defendant) immediately reported the encroachment to the area chief whereupon the plaintis were summoned, and they conceded that they did not know where their boundary reached. That despite promising to vacate, the plaintis did not vacate as a result of which the defendant led Kakamega ELC No. 378 of 2013 seeking their eviction. 4. Hearing of the OS proceeded by way of oral evidence. Prior to commencement of the hearing, the parties recorded a consent that the Land Registrar and the Land Surveyor visit the parcels known as Marama/Shinamwenyuli/899 and Marama/Shinamwenyuli/817 to establish the boundaries and acreage and to thereafter le a report in court. 5. Francis Eyinda Keya testied as PW1. He adopted his above-mentioned supporting adavit and added that the Land Registrar and the Land Surveyor visit the parcels and led a report dated 29th January 2019. He further stated that he was born in 1958 and that the rst registration of the parcels was in 1964 when his father was residing on Marama/Shinamwenyuli/817 which neighbours Marama/Shinamwenyuli/899. That when the plaintis’ father told the plaintis to construct houses on Marama/Shinamwenyuli/899, the defendant reported the matter to the area chief and later sought to evict the plaintis in the year 2013. He added that he has two houses: one on Marama/ Shinamwenyuli/817 and another on Marama/Shinamwenyuli/899. 6. John Orienyo Keya testied as PW2 while Josephine Chemutai who is a Land Surveyor working at the District Survey oce Kakamega testied as PW3. PW3 stated that she visited the site on 28th November 2018 and prepared the report dated 29th January 2019. That since the land registrar was not present, she https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19820/eng@2023-09-19 2

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dealt only with the sizes and established that the 8-acre area claimed by the plaintis is part of Marama/ Shinamwenyuli/899. 7. The plaintis’ case was then closed. 8. The defendant Juma Mangala Musa testied as the sole defence witness. He adopted his abovementioned replying adavit. That out of the 28 acres comprised in Marama/Shinamwenyuli/899, he has been in occupation of only 20 acres while the plaintis have been in occupation of 8 acres since 1994 when they constructed on the said portion. The defence case was then closed. 9. Parties led and exchanged written submissions. I have duly noted the submissions. The issues that arise for determination are whether adverse possession has been established and whether the reliefs sought should issue. 10. The essentials of proving adverse possession were discussed by the Court of Appeal in Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR as follows: Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It must start with a wrongful dispossession of the rightful owner. (See comparative Indian cases of S. M. Kenni alias Tamanna Sabeb – v- Mst Bibi Sakina AIR 1964 SC 1254; and Parsimi – v- Sukhi, 1993 4 SCC 375). 39. In Wambugu v Njuguna, (1983) KLR 173, this Court held that adverse possession contemplates two concepts: possession and discontinuance of possession. It was further held that the proper way of assessing proof of adverse possession is 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 or she has been in possession for the requisite number of years. 40. A person who claims adverse possession must inter alia show: (a) on what date he came into possession. (b) what was the nature of his possession? (c) whether the fact of his possession was known to the other party. (d) for how long his possession has continued and (e) that the possession was open and undisturbed for the requisite 12 years. 11. The plaintis contend that they have been in possession of the disputed 8 acres from their childhood with the defendant’s knowledge and that they have established their homes on it. They further contend that the defendant has acknowledged that they have been in possession since 1994 and that they have therefore established adverse possession. 12. Whereas it is true that the defendant has acknowledged that the plaintis have had exclusive possession of the 8 acres since 1994, it is trite that a party claiming title through adverse possession must not only establish exclusive possession for the requisite 12 years, he must also demonstrate an intention to dispossess the registered proprietor. The parties herein own adjacent parcels. 13. The 8-acre area that the plaintis claim abuts the plaintis’ own Marama/Shinamwenyuli/817. Going by prayers (e) and (f) of the OS and the statement by the plaintis in the in adavit in support of https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19820/eng@2023-09-19 3

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the OS to the eect that 8 acres of land parcel number Marama/Shinamwenyuli/817 were erroneously included in the suit property during land adjudication, I am persuaded that the dispute between the parties is really a boundary dispute carried over from the adjudication process as opposed to a genuine adverse possession claim. Given that adjudication background coupled with the fact that the parties are neighbours, the plaintis needed to show unmistakable evidence of an entry with an intention to dispossess the registered proprietor. The Court of Appeal emphasised the importance of establishing intention to possess in Masambaga & 7 others v Malindi Holdings and Estate Limited (Civil Appeal 165 of 2019) [2022] KECA 782 (KLR) (10 June 2022) (Judgment) where it stated as follows: "As explained in Elements of Land Law, 5th Edition by Kevin Gray and Susan Francis Gray at page 1179 “Possession is attributed to the squatter (and his possession is adverse) only if he has both factual possession (factum possessionis) and the requisite intention to possess (animus possidendi). These elements of factum and animus interact signicantly and must coincide continuously throughout the entirety of the required period of possession." 14. I also note that the defendant testied that he led Kakamega ELC No. 378 of 2013 seeking the plaintis’ eviction. PW1 conrmed this when he stated that the defendant sought to evict them in the year 2013. PW1 further testied that when the plaintis constructed houses on Marama/ Shinamwenyuli/899, the defendant reported the matter to the area chief. This OS was led on 5th May 2014, just about a year after the defendant had sought to evict the plaintis. 15. In view of the foregoing, the plaintis have failed to establish adverse possession. That being so, the reliefs sought cannot issue. In the circumstances, I dismiss the plaintis’ case with costs to the defendant. DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 19TH DAY OF SEPTEMBER 2023. D. O. OHUNGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19820/eng@2023-09-19 4

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