Asiebela v Vigatsi (Sued as the Administratrix of the Estate of Andrew L Vigatsi) (Environment & Land Case 23 of 2021) [2025] KEELC 525 (KLR)

occupied or used the suit property since 1979 and that her late husband gave Andrew L. Vigatsi KShs 15,000 to buy for him land but since Andrew L. Vigatsi used the money for other purposes, he ofiered to give the suit property to her late husband in lieu of the money. 5. She further testified that after her husband died, Andrew Vigatsi tried to remove her from the suit property and that as of the date of her testimony, she was residing within her father-in-law’s homestead and not on the suit property. She also stated that the suit property was not ancestral land but was purchased by Andrew Vigatsi. That Andrew Vigatsi allowed her and her husband to use the suit property since they did not have their own land and that in August 1997, one and a half months after her husband passed away, Andrew Vigatsi demanded the suit property from her. 6. The Plaintifi’s case was then closed. 7. Elizabeth Mujisa Vigatsi testified as the sole witness in respect of the Defence case. She stated that the Plaintifi’s late husband and her late husband Andrew Vigatsi were brothers. She adopted Andrew Vigatsi’s replying afidavit sworn on 12th February 2002 and filed in this case on 14th February 2002 as her evidence in chief. 8. Andrew Vigatsi deposed in the afidavit that he was the registered proprietor of the suit property and that he allowed his parents and the Plaintifi’s late husband who was his brother to cultivate the suit property since Kakamega/Khayega/516 was too small for them. He added that the Plaintifi and his parents used the suit property with his permission and that at no time did he ever discuss any sale of the suit property with his late brother. 9. Elizabeth Mujisa Vigatsi went on to testify that the Plaintifi had been using the suit property since 1981 with her late husband’s knowledge. That out of sympathy, she allowed the Plaintifi to continue using the suit property since she had another parcel of land at Ileho. That her parents in law were using the land before the Plaintifi started using it and that even as the Plaintifi and her parents in law used the suit property, her husband Andrew and her would harvest trees from it and sell then use the proceeds for family needs. Additionally, her husband used to go to the suit property regularly to check on it. She stated that her husband never sold the suit property to the Plaintifi’s husband and added that as of the date of her testimony, the Plaintifi was still using and farming on the suit property. 10. The Defence case was then closed, after which parties filed and exchanged written submissions. The Plaintifi filed submissions dated 20th April 2024 while the Defendant filed submissions dated 19th June 2024. 11. I have considered the parties’ pleadings, evidence and submissions. The issues that arise for determination are whether adverse possession has been established and whether the reliefs sought are available. 12. The Court of Appeal discussed the law relating to adverse possession in the case of Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR where it stated that a party claiming adverse possession must assert hostile title in denial of the title of the registered proprietor. The process must start with a wrongful dispossession of the rightful owner and the proper way of assessing proof of adverse possession is whether the title holder has been dispossessed or has discontinued his possession for the statutory period of 12 years, as opposed to whether the claimant has proved that he or she has been in possession for 12 years. The party who claims adverse possession must demonstrate the date he came into possession, the nature of his possession, whether the fact of his possession was known to the registered proprietor and that the possession was open and undisturbed for the requisite 12 years. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/525/eng@2025-02-12 2

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13. It is not disputed that the suit property is registered in the name of Andrew Vigatsi and that, by Elizabeth Mujisa Vigatsi’s admission, the Plaintifi and her late husband were in occupation of it since 1981. The Plaintifi remained in occupation as at the date of hearing of the suit. Occupation alone, however prolonged, is not enough to establish adverse possession. It must be demonstrated that the occupation was both exclusive and without the registered proprietor’s consent. In this case, the Plaintifi testified that Andrew Vigatsi allowed her and her husband to use the suit property since they did not have their own land. That position is corroborated by the testimony of Elizabeth Mujisa Vigatsi and Andrew Vigatsi in his replying afidavit. In sum, the Plaintifi’s use and occupation was permissive and not adverse. 14. Additionally, there is no dispute that the parties herein have close family relationship. The Plaintifi’s late husband and Andrew Vigatsi were brothers. The Plaintifi’s entry into the suit property fiowed directly from that relationship. The Court of Appeal held in Samuel Kihamba v Mary Mbaisi [2015] eKLR that the doctrine of adverse possession does not apply within the family and closely related parties. The Court went ahead to hold that there would be havoc for families and the society of Kenya generally if the principle of adverse possession applied within families against close relatives. 15. In view of the foregoing discourse, adverse possession has not been established. It follows therefore that the reliefs sought are not available. I find no merit in the Plaintifi’s case, and I therefore dismiss it. Considering the close family relationship between the parties, I make no order as to costs. DATED, SIGNED, AND DELIVERED THROUGH MICROSOFT TEAMS, AT NYAMIRA, THIS 12TH DAY OF FEBRUARY 2025. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Osango for the Plaintifi No appearance for the Defendant Court Assistant: B Kerubo https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/525/eng@2025-02-12 3

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