Nyamok v Omusi

d. 2. Any other relief this Honourable court may deem t to grant in the circumstances. The originating summons is anchored on grounds (a) to (c) inter alia: a. That the plainti has been in uninterrupted occupation of the suit land for over 12 years. b. That the said occupation by the plainti has been open and known to the defendant. c. That the defendant, his late mother Plista Adera, have a larger parcel of land which is their ancestral land at Rapogi. 3. The claim is further founded on a fourteen (14) paragraphed supporting adavit of the plainti and a copy of certicate of ocial search (JAN I) as well as a copy of death certicate (JAN II) annexed to the adavit. The plainti deposed, inter alia, that together with the defendant’s mother, Plista Adera Damo (deceased 1), they are the registered proprietors of the suit land, each holding ½ share thereof. That deceased 1 erroneously got registered as a proprietor yet she was not related to the plainti or her husband. That deceased 1 together with her husband, one Wilson Orinyo (deceased 2), briey lived on the suit land before she left for deceased 2’s home in Rapogi. That deceased 1 eventually passed on and was buried alongside deceased 2 in Rapogi. 4. Also, the plainti stated that deceased 1 never cultivated and/or put up any structures on the suit land. That she has been in open and uninterrupted possession and use of the entire suit land since 1975 to date. 5. By a Power of Attorney dated 15th June 2022, the plainti authorized Michael Dibogo Onyango, to prosecute the suit on her behalf. 6. PW1, Michael Dibogo Oyango, the plainti’s eldest son and holder of her Power of Attorney, relied on the plainti’s statement and her documents, to wit, a copy of a certicate of ocial search in respect to the suit land and a copy of the death certicate for deceased 1 (PExhibits 1 and 2). On crossexamination, he stated that the search certicate indicates that the suit land belongs to both the plainti and deceased 1, who were registered as the rst registered owners on 28th April 1975 with each holding ½ share of the same. 7. PW2, Dominicus Aludo, relied on his statement on record which was adopted as part of his evidence. He averred that he did not know deceased 1 herein. 8. PW3, William Okinyi Omusi, relied on his statement on record which was adopted as part of his evidence. He testied that his grandfather known as Omollo, gave the suit land to Janes Onyango Nyambok, the late husband to the plainti (deceased 3 herein). That deceased 3 died in 1968 and is buried thereon. Upon cross-examination, he armed that the plainti lives on the suit land. 9. James Omollo Ojwang’ (PW4) relied on his statement on record which was adopted as part of his evidence. Under cross-examination, he stated that the plainti buried deceased 3 on the suit land. 10. By the submissions dated 1st February 2024, the plainti’s counsel identied ve issues for determination inter alia: a. Whether a claim for adverse possession can arise from the suit land herein? b. Whether the plainti has met the threshold for grant of orders of adverse possession. c. Whether the plainti is entitled to be registered as the sole proprietor of the entire suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14210/eng@2024-11-20 2

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d. Whether a permanent injunction restraining the defendant by himself or his agents from interfering with the plainti’s occupation and enjoyment of the suit land should be issued. e. Who should bear the costs of the suit. 11. Learned Counsel submitted that the plainti is in occupation of the entire suit land and her claim is for the half share of the suit land which is registered in the name of the defendant herein. That the plainti’s occupation of the defendant’s portion has been open, without secrecy and with the intention of acquiring ownership. That the plainti has proved her claim to the requisite standard and is entitled to the orders sought herein. Reliance was placed on various authorities, including the case of Mbira vs Gachuhi (2002) 1 EALR 137, among others, to buttress the submissions. 12. The defendant through Mudeyi Okumu and Company Advocates, opposed the claim vide a replying adavit sworn on 5th May 2021. He deposed in part that he presently co-owns the suit land with the plainti, ownership having been transmitted to him upon obtaining a grant of letters of administration to the estate of deceased 1 in Migori CMCC Succession Cause No. 28 of 2020. That since the Plainti is a joint owner of the suit land, she has not been adversely occupying the same so as to acquire it by way of adverse possession. That therefore, the prayers sought herein are untenable. 13. DW1, James Agwenge Omusi, relied on his statement dated 25th March 2022 as well as his list of documents on record which were marked as PExhibits 1, 2 and 3. He testied that the plainti is his grandmother. That he is also the grandson to deceased 1 and has obtained letters of administration in respect to her estate. That the suit land is ancestral hence, the plainti is not entitled to the whole of it. That there was no fraud in registration of the same in the names of the parties herein. That both parties utilize the suit land. 14. Under cross-examination, DW1 conceded that he does not live on the suit land. That he has been utilizing the same since 2020. That his father is alive but does not have a home on the suit land and has never used the same. 15. DW2, Dominic Omusi Damo, relied on his statement on record, which was adopted as part of his evidence. He conrmed that the suit land is registered in the names of the parties herein. That the suit land has not been subdivided. That he does not utilized the suit land as he left it for the plainti herein. During cross-examination, he admitted that it is the plainti herein who utilizes the suit land. 16. The defendant’s counsel led submissions dated 21st October 2024 and submitted that a claim for erroneous registration can only be borne out of either a mistake or fraud. That there was no objection to the rst registration and the defendant has been utilizing the suit land and has planted trees thereon. That in any event, such a claim is time barred, ought not to be instituted by way of originating summons and should be directed to the Attorney General and/or the Commissioner for Lands for resolution. That in the instant case, the plainti has not tendered proof in regard to the purported erroneous registration. That the indefeasibility and conclusiveness of title under the torrens system is rebuttable only by proof of fraud or misrepresentation, in which a party is involved. 17. That further, a claim for adverse possession is untenable in the circumstances since the plainti herein is a joint owner of the suit land. Thus, counsel urged the court to dismiss the suit with costs. To fortify the submissions, learned counsel relied on various authoritative pronouncements, including the case of Joseph N arap Ng’ok v Moijo ole Keiwua and 4 others (1997) JELR 100612 (CA). 18. I have considered the parties’ respective pleadings, evidence and written submissions. From the foregoing, the issues for determination herein are: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14210/eng@2024-11-20 3

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19. a. Whether the plaintis have proved their case to warrant grant of the orders sought in this suit; and b. Who should bear the costs of this suit? The Court of Appeal in the case of Wilson Kazungu Katana and 101 others-vs-Salim Abdalla Bakshein and another (2015) eKLR, held that adverse possession dictates thus; a. The parcel of land in dispute must be registered in the name of a person other than the applicant, b. The applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, c. The applicant must be 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. 20. Furthermore, the applicant must show that such possession was without the permission of the owner; see Richard Wefwafwa Songoi -vs- Ben Munyitwa Songoi (2020) eKLR. 21. It is important to note that the plainti’s claim is for the entire suit land measuring approximately thirteen hectares (13 Ha) in area. 22. So, the plaintis’ claim is over a denite portion of land as held in Muthuita –vs- Wanoe & 2 others (2008) 1KLR (G&F) 1024. 23. In the rst instance, the suit land is registered in the name of the plainti and deceased 1 herein. Each of the proprietors holds half share thereof with eect from 28th April 1975. This is evidenced by a copy of the ocial search certicate dated 13th February 2020 captured in both the plaintis’ and the defendant’s list of documents forming part of their evidence herein. 24. On that score, it is evident that the plainti has failed to establish that her possession of the suit land was adverse to the rights of the defendant herein, since she is entitled to use and occupation of the same by virtue of ownership of a half share thereof. 25. Therefore, it is the nding of this court that a claim for adverse possession is untenable in the circumstances. 26. As regards fraud, I subscribe to the Court of Appeal decision in Kinyanjui Kamau vs George Kamau [2015] eKLR where the court expressed itself as follows; “ …It is trite law that any allegations of fraud must be pleaded and strictly proved…” 27. Clearly, the existence of fraud cannot be inferred from the facts; see Vijay Morjaria -vs- Nansingh Madhusingh Darbar & Another [2000] eKLR. 28. In the present case, I note that the plainti did not adduce sucient evidence as proof of fraud on the part of the defendant. 29. Besides, the allegation that registration of the title to the suit land in the name of both the parties herein was occasioned by a mistake, was not supported by evidence. 30. In the circumstances, I subscribe to the Court of Appeal decision in Kirugi and another–vs-Kabiya and 3 others (1987) KLR 347, where it was held that the burden was always on the plainti to prove his case on the balance of probabilities even if the case is heard by way of formal proof. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14210/eng@2024-11-20 4

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31. To that end, I hold that the plainti has not proved the ingredients of adverse possession to the requisite standard as held in the case of Wilson Kazungu Katana (supra). So, her claim must fail. 32. Accordingly, the instant suit is hereby dismissed with costs to the defendant. 33. Orders accordingly. DELIVERED, DATED AND SIGNED AT MIGORI THIS 20TH DAY OF NOVEMBER 2024. G.M.A ONG’ONDO JUDGE Present; Kisia instructed by Mwita Kerario learned counsel for the plainti Mudeyi Okumu learned counsel for the defendant To Maurice, court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14210/eng@2024-11-20 5

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