Okumu & another v Oor

4. d. An order that the suit property be transferred from the defendant’s name to the plaintis’ name for them to hold in trust for themselves and other family members. e. An order that the defendant does execute the instruments of transfer in favour of the plaintis and in default, the deputy registrar of the Hon. court to so do. f. Costs of the suit be borne by the defendant. The OS was strenuously opposed by the defendant who led an amended replying adavit that he deposed on 12/03/2024 and attached to it, were photographs allegedly of the suit property. Plaintis’ Evidence 5. The matter thereafter proceeded for hearing by viva voce evidence and the 1st plainti testied as PW1 and his evidence was composed of his oral testimony, adopted witness statement, and documents he produced in support of his case and were marked as Pex.1- 2. They were a green card of the suit property and a demand letter from their counsel to the defendant. 6. It was the 1st plainti’s testimony that in the 1980s, Paul who was deceased bought the suit property from Ouma Oyal (Oyal) who was also deceased. He stated that his deceased 3 mothers farmed on it in the past but for over 12 years now, he and the 2nd plainti made use of the suit property and he even lived in it. 7. Later in his testimony, he averred his house was in Uholo/Rambula/530 (530) and his family no longer lived on the suit property. He stated that he had misled the court when he testied that he lived on the suit property. 8. He stated he did not have any evidence to show he and his family entered the suit property in the 1980s. He averred he stopped making use of the suit property in June 2023 and by Pex. 2, he was seeking an eviction of the defendant. Defendant’s Evidence 9. The defendant testied as DW1 and his evidence was composed of his oral testimony, amended replying adavit, and photographs he produced as Dex.1. 10. It was his testimony he had always farmed on the suit property save for an interlude in August 2020 when he permitted the plaintis to cultivate it for 2 seasons. 11. It was his testimony when the permission was terminated in 2021, he resumed farming as evidenced by Dex.1 which were his crops that were subsisting on the suit property. Parties’ Submissions 12. Upon closing parties’ cases, this court directed counsels to canvas it by written submissions, and in compliance, their counsels led written submissions. 13. The plaintis’ law rm on record Ms Ben Aduol Nyanga & Co Advocates led their written submissions dated 17/09/2024 and they identied 3 issues for determination which were whether the plaintis were in occupation of the suit property, whether they had a cause of action and whether they were entitled to the orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13285/eng@2024-11-21 2

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14. The defendant’s law rm on record M/s C Obiero & Ass Advocates led written submissions dated 22/09/2024 and identied a single issue for determination; whether the plaintis’ claim had met the legal requirements of adverse possession. 15. Upon identifying and considering the issues for determination, this court will in its analysis and determination consider the respective counsels’ arguments on the particular issue and also consider provisions of the law they relied upon to advance their respective arguments. 16. Despite both counsels relying heavily on legal authorities, none of them were tendered to court and on that basis, these authorities will not be considered. Issues for Determination 17. I have considered the pleadings, adduced evidence, and rival written submissions. Being guided by wellcited provisions of law that have been highlighted in the submissions, I shall now proceed to consider the merits or otherwise of the plaintis’ claim, and the issues for Determination are:I. Whether the plaintis proved their claim of adverse possession to the required standards. II. What appropriate orders should be granted including an order as to costs? Analysis and Determination 18. The 2 issues that have been identied as arising for resolution shall be dealt with together. 19. The doctrine of adverse possession is statutorily underpinned in our Limitation of Actions Act. The relevant provisions are found in Sections 7, 13 and 38 thereof. Section 7 provides that: “ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it rst accrued to some person through whom he claims, to that person.” Section 13 states that: “ (1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land. (3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3) of this Act, the land in reversion is taken to be adverse possession of the land.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13285/eng@2024-11-21 3

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Lastly, Section 38 (1) elucidates that: “ (1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” 20. The principles of law on adverse possession are settled in Kenya and the burden is usually on the adverse possessor to strictly prove all the elements of adverse possession to the required standards. 21. In their submissions, both counsels thrashed this issue to the pulp with the plaintis’ counsel contending that the plaintis had met the threshold of adverse possession while the defendant’s counsel asserted the 1st plainti’s evidence was contradictory. 22. Signicantly, the plaintis’ counsel introduced matters of evidence in his submissions ostensibly on the existence of another court case, yet that issue never arose during the trial. Counsels are reminded that submissions are arguments and not evidence. 23. Pointedly, it must be borne in mind that claims of adverse possession are matters of facts that are observed on the land. 24. The criteria that an adverse possessor must satisfy was stated as follows in the persuasive case of Daniel Kimani Ruchine & Others v Swift, Rutherford Co Ltd & another [1977] eKLR: “ The plaintis have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec plecario (no force, no secrecy, no evasion). So the plaintis must show that the company had knowledge (or the means of knowing, actual or constructive) of the possession or occupation. The possession must be continuous. It must not be broken for any temporary purposes or by any endeavours to interrupt it or by any recurrent consideration; see Wanyoike Gathure v Beverly [1965] EA 514, 518, 519, per Miles J.” 25. I concur with this decision that a claimant has to rst demonstrate occupancy and possession of a suit property and once this 1st legal hurdle is met, then the court proceeds to analyze whether the claimant has met the other conditions. 26. The plaintis’ counsel argues that the 1st plainti proved occupancy while the defendant’s counsel is of a contrary view. In appreciation of the evidence as presented by the parties, I must agree with the defendant’s counsel. 27. The plaintis did not tender any evidence to show that they were in occupation such as by producing a survey report, photographs, or records to show they drew an income from the suit property or even call neighbours to substantiate their allegations. 28. Apart from the 1st plainti’s assertions, there was no shred of evidence that the plaintis or their mothers ever occupied the suit property. Further, I nd the 1st plainti’s evidence contradictory, untruthful and full of falsehoods as it emerged he did not reside on the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13285/eng@2024-11-21 4

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29. In fact, the demand letter from his Advocates dated 15/11/2022 conrms he was not in occupation but rather the defendant was. This is self-evident by the eviction notice against the defendant that in verbatim stated: “ Take stern notice that unless you move out of our clients’ family Land Parcel No. Uholo/ Rambula/499…” Emphasis added. 30. The defendant indeed conrmed that he was the one in occupation of the suit property by producing photographs showing a maize plantation that was enclosed within a barbed wire fence. 31. His evidence that he was the one in occupation was never rebutted by the plaintis. I need not say more. I nd the plaintis are not in possession or occupation of the suit property. 32. Ultimately, for the reasons and ndings stated above, it is my ultimate nding the plaintis did not prove their claim to the required standards. It is trite law costs follow the event. Because of the special relationship between the parties, each party shall bear their respective costs of the suit. In the end, I make the following nal disposal orders; a. The plaintis’ suit against the defendant is hereby dismissed. b. Each party shall bear their respective costs of the suit. 14 days Right of Appeal. Orders accordingly. DELIVERED AND DATED AT SIAYA THIS 21ST DAY OF NOVEMBER, 2024. HON. A. Y. KOROSS JUDGE Judgment delivered virtually through Microsoft Teams Video Conferencing Platform. In the presence of: Mr. Nyanga for the Plainti. Mr. Obiero for the Defendant. Court Assistant: Ishmael Orwa. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13285/eng@2024-11-21 5

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