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3. 3. Whether the Plaintifi has acquired title to the said parcel of land known as NO South Teso/ Osurette/771 measuring 1.2 Ha by virtue of adverse possession and whether such title should be issued to the Plaintifi. 4. Whether the Plaintifi should be registered as the owner of the entire parcel of land known as South Teso/Osurette/771 measuring 1.2 Ha. 5. Who pays costs of this suit. Arising out of the above, the Plaintifi sought judgment against the Defendant in the following terms: 1. That the Defendant’s right over the land parcel NO South Teso/Osurette/771 measuring approximately 1.2 Ha as possessed by the Plaintifi got extinguished by adverse possession upon expiry of the statutory period of 12 years. 2. That the Plaintifi is hereby granted right of title to the land parcel South Teso/Osurette/771 absolutely. 3. That the Defendant to execute all relevant documents to transfer the land parcel NO South Teso/Osurette/771 and in default, the Deputy Registrar Environment and Land Court Busia be authorized to execute same after expiry of any period granted by the Court. 4. Costs be borne by the Defendant. In support of his claim, the Plaintifi filed a supporting afidavit dated 5th July 2022 as well as an un-dated statement filed on 15th July 2022. The gist of the supporting afidavit and un-dated statement is that in the year 1998, he purchased the suit land from one David Emoru Opuru for a consideration which is not disclosed. That the said David Emoru Opuru (hereinafter Opuru) did not process the title for the suit land for him as the same belonged to his (Opuru’s) brother. That having paid the consideration, the Plaintifi took possession and occupation of the suit land in 1998 to-date and he has lived peacefully thereon for 24 years. That the Defendant is alleging that the suit land belonged to his father Asangae Opuru now deceased who had been given it to him and he has now obtained a Grant of Letters of Administration and locked the Plaintifi out of the succession process. That the Defendant is not entitled to the suit land as it does not form part of the Estate of Asangae Opuru. That he has buried his relatives on the suit land as is entitled to the orders sought. 4. The Plaintifi also filed statements of his witnesses Paul Okuta Imodoi (pw2), Belinda Irangi Omoit (pw3) And Akure John Paul (PW4) all dated 29th September 2024. He also filed a statement of David Emoru Opuru who however was not called as a witness. 5. In his statement Paul Okuta Imodoi (PW2) states that he knows the parties herein. He confirms that the Plaintifi purchased the suit land form Opuru in 1998 and immediately settled thereon with his family. That the Defendant’s brother the late Alongo Omukaga Opuru later lodged a dispute over the suit land before the District Oficer who referred it to the Tribunal at Amukura which declared that Opuru was the owner of the suit land. The Defendant tried to review that case but in vain. That the Plaintifi rightfully purchased the suit land and has been living thereon peacefully. 6. On her part, Belinda Irangi (PW3) confirmed that she is the daughter of the Plaintifi born in 1999 in Aburi Village Akoreet Location In Teso Sub-location. That she has lived on the suit land since birth and was surprised to hear that the Defendant had secretly filed for succession. In 2002, the Defendant tried to stop the burial of the witness’s brother on the suit land yet another member of the Plaintifi’s family had been buried thereon in 2016 without any complaint. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8171/eng@2025-11-24 2

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7. On his part Akure John Paul (PW4) confirms that he has known the Plaintifi for the past 60 years together with his entire family. That upon his retirement in 1989, the Plaintifi purchased the suit land from his cousin Opuru and settled thereon. The Plaintifi has lived peacefully on the suit land with his family and has even buried two members of his family thereon. But at difierent times, the Defendant has tried to get possession of the suit land from the Plaintifi but to no avail and his efiorts have been rejected by the Land Tribunal and Land Control Board at Amukura. In 2022, the Court quashed the Defendant’s attempt to block the burial of the Plaintifi’s son on the suit land. That the Defendant lacks the locus standi to lay any claim to the suit land since he is rightfully on his father’s land. 8. The Plaintifi filed his list of documents also dated 5th July 2022 comprising the following: 1. Copy of oficial Search Certificate for the land parcel NO South Teso/Osurette/771. 2. Copy of death certificate for Asangae Opuru Okutta. 3. Copy of a letter from the ofice of the Chief Akoreet Location dated 16th November 2020. 9. In response to the Originating Summons, the Defendant filed both a replying afidavit dated 22nd September 2022 and a statement dated 18th February 2025 to which he annexed his documentary evidence. 10. The gist of his replying afidavit and statement is that he is the Legal Representative of the Estate of the late Asangae Opuru in whose name the suit land is registered. That prior to his demise, the said Asangae Opuru had not sold any part of the suit land to anybody including to the Plaintifi. That the Plaintifi has failed to attach a copy of any sale agreement. That the late Asangae Opuru had no children but had adopted him as his son. That he filed succession proceeding in Busia Chief Magistrate’s Court case NO E187 of 2020 to which the Plaintifi has filed an objection. That the Plaintifi is not related to the family of Asangae Opuru and while there have been disputes, none has been forwarded to the District Oficer. The Plaintifi cannot therefore claim to have occupied the suit land without interference. His case is defective and must be struck out with costs. 11. The Defendant filed the following documents: 1. Copy of Limited Grant of Letters of Administration issued in Busia Chief Magistrate’s Court Succession Cause No E523 of 2022. 2. Copy of summons issued by the District Oficer Amukura on 27th October 1998 and addressed to David Emoru (seller) and Rasmo Eroto (buyer) and also to the Defendant and others as complainants. 3. Copy of certificate of death for Asangae Opuru Okuta. 4. Copy of Letter from the Chief Akoreet dated 19th July 2020 addressed to the Deputy Registrar. 5. Copy of Kenya Gazette dated 24th December 2020. 6. Copy of Oficial Certificate of Search for the land parcel NO South Teso/Osurette/771. 7. Copy of minutes meeting held on 22nd August 2020. The trial commenced on 9th October 2024 and concluded on 24th February 2025. The Plaintifi testified and called his witness named above and although David Emoru Opuru filed his statement, he was not called as one of the Plaintifi’s witnesses. The Plaintifis and his witnesses adopted as their evidence the contents of their statements summarized above. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8171/eng@2025-11-24 3

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12. The Defendant was the only witness who testified in support of his case. He adopted his afidavit and statements as his evidence. All the parties produced as their documentary evidence. 13. At the end of the plenary trial, submissions were filed by Mr Okutta Instructed By The Firm Of Ouma Okutta & Associates Advocates for the Plaintifi as well as the Defendant acting in person. 14. I have considered the evidence by the parties including the documents filed and their submissions. 15. The Plaintifi’s claim is that he has acquired the suit land by way of adverse possession. Section 38(1) of the Limitation of Actions Act allows him to approach this Court for that order. It reads: 38 (1): “Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37, 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.” In the case of Kasuve -v- Mwaani Investments Ltd & Others 2004 Keca 161 Klr [2004 Klr 184] (c.a. Civil Appeal No 35 of 2002 NBI), it was held that: “ And in order to be entitled to the land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of 12 years either after dispossessing the owner of by the discontinuation of possession by the owner on his own volition.” The Supreme Court of India in the case of Karnataka Board Of Wakf -v- Government Of India & Others 2004 10 SCC 779 and which has been followed by Courts in the country held thus: “ Adverse possession is a hostile possession by clearly asserting hostile title in denial of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario,’ that is peaceful, open and continuous.” In the case of Mtana Lewa -v- Kahindi Ngala Mwagandi C.a. Civil Appeal No 65 of 2014 [2014 eKLR] it was held that: “ Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period. In Kenya, the period is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner.” Emphasis mine. I shall be guided by the above precedents among others. 16. The Plaintifi’s entry onto the suit land is alleged to have been by way of a sale agreement executed in 1998. It is now well settled that a purchaser of land having paid the full purchase price is a person in whose favour time for purposes of adverse possession can begin to run from the moment the full purchase price has been paid - Public Trustee -v- Wanduru 1984 KLR 319. In paragraph 2 of his statement, the Plaintifi has said: “ Sometimes back in the year 1998, I bought all that defined parcel of land measuring about 1.2 Ha and known as L.R South Teso/Osurette/771 from David Emoru Opuru in the year 1998 at a consideration through a land sale agreement. The parcel that David sold to me was his land which he had entrusted to his brother a portion as he had no other portion https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8171/eng@2025-11-24 4

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having been in Uganda. I have never been issued with Title Deed as properly was in his late brother’s name.” The suit land, as per the Certificate of Search filed herein, was registered in the name of Asangae Opuru on 9th August 1973 although on 29th July 1998, a restriction was placed thereon awaiting succession proceedings. 17. In response to the above averment by the Plaintifi, the Defendant in paragraph 5 of his replying afidavit has deposed that: 5: “That prior to his death, the late Asangae Opuru did not sale (sic) neither any part of his land nor the whole of his land above mentioned to anybody including the Applicant herein and the Applicant is put to strict proof of his allegations.” When the trial commenced on 9th October 2024, I noted that the sale agreement had not been filed and I gave counsel for the Plaintifi time to do so. It was subsequently filed via a further list of documents dated 13th December 2024. It is dated 17th August 1998 and was executed between David Opuru as the seller and the Plaintifi as purchaser. However, the said David Opuru had no capacity to transact over the suit land registered in the name of Asangae Opuru. That can only mean that the Plaintifi entered the suit land through “stealth” which as per the decision in Mtana Lewa -v- Kahindi Ngala Mwagandi (supra) soils the Plaintifi’s claim since such entry is supposed to be peaceful. Not by force or stealth. 18. The Plaintifi’s occupation and possession of the suit land has also not been peaceful. In paragraph 9 of his supporting afidavit, the Plaintifi has averred thus: 9: “That from the time of purchasing same to-date, I have immensely constructed on the said parcel of land and have been living peacefully therein for over 24 years since the year 1998 todate.” But in response to that averment, the Defendant has deposed as follows in paragraph 11 of his replying afidavit: 11: “That the respondent herein among other family members of the deceased have had cases before the area chief and other authorities to stop the Applicant herein from interfering with the deceased’s Estate land and that at one time, this matter was forwarded to the District Oficer’s Ofice (annexed hereto and marked LOE-3 is Summons dated 27th October 1998) and so the Applicant cannot allege to have occupied the deceased’s Estate land for so long without any interference from the respondent herein and other family members of the deceased given that this was their ancestral family land.” The said summons is dated 27th October 1998 from the District Oficer Amukura and addressed to the Chief Eremit Location. It is brief and due to it’s relevance, I shall reproduce it in extenso. It reads: “ Re: Summons 1. David Emoru – Seller 2. Rasmo E. Eroto – Buyer 3. Lazaras O. Emoruoni 4. Silvanus Emoruowy 5. Fidelis Asangai Complainants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8171/eng@2025-11-24 5

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6. Karol Emoruoni 7. Dismas Emoruoni Please urgently inform the above-named persons to appear before the undersigned on Tuesday 3rd November 1998 at 9.00 am without fail. All the named are residents of Lukolis Akoret Location. David Emoru is said to have sold family land without prior knowledge of the family or the complainants. E. N. Ngugi District Oficer Amukura.” Since the Plaintifi’s case is that he purchased the suit land from David Emoru Opuru, I have reason to believe that he must be the same person referred to as “rasmo E. Oroto – buyer” in the said Summons while the Defendant must be the person referred to as Lazaras O. Emuruoni named among the complainants. The Summons are dated 27th October 1998 just 2 months from the date when the parties and others were summoned to the District Oficer’s Ofice at Amukura. Under those circumstances, the Plaintifi cannot be heard to claim that he has lived on the suit land peacefully for 24 years. Disputes over his occupation and possession of the suit land started very early and escalated during the succession process and now this suit. 19. It is clear from the above that not only did the Plaintifi enter the suit land through stealth and evasion but further, his family’s occupation of the suit land has not been peaceful. His claim to the suit land by way of adverse possession must therefore collapse and is for dismissal. 20. With regard to costs, the parties are related. In paragraph 3 of his supporting afidavit, the Plaintifi has averred: 3: “That I know the Respondent herein who is my relative within the community.” It is unfortunate that they could not find an amicable route to resolve this dispute. Hopefully, it is not too late for the Plaintifi, riding on his success in this dispute, to reach out to the Defendant and cobble up some settlement over the suit land. Nothing is impossible. To give them a start, I direct that each bears their own costs. 21. Ultimately therefore and having considered all the evidence herein, I issue the following disposal orders: 1. The Plaintifi’s suit is dismissed. 2. The parties shall meet their own costs. JUDGEMENT DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 24 TH DAY OF NOVEMBER 2025 WITH NOTICE TO THE PARTIES. BOAZ N. OLAO 24 TH NOVEMBER 2025 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8171/eng@2025-11-24 6

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