Ouko v Sweta & 2 others (Enviromental and Land Originating Summons E008 of 2023) [2026] KEELC 3109 (KLR)

The Plaintiff instituted this suit by way of Originating Summons dated 18th September 2023. The Plaintiff claimed to have acquired all that parcel of land known as Title No. Kisumu/Kanyawegi/4484(the suit property) by adverse possession. In his Originating Summons, the Plaintiff sought the determination of the following questions: 1. Whether the Plaintiff was entitled to the suit property by reason of adverse possession having been in a quiet, peaceful, continuous and uninterrupted possession thereof for a period exceeding 12 years. 2. Whether the 1st and 2nd Defendants' beneficial interest in the suit property had been extinguished by virtue of the Plaintiff’s adverse possession, and whether the 1 st and 2nd Defendants were holding the title in constructive trust for the Plaintiff. 3. Whether the title deed issued in the name of the 3 rd Defendant as the absolute proprietor of the whole of the suit property should be cancelled, and the said parcel of land reverted to the name of Pius Sweta Ndinya. 4. Whether the Plaintiff was entitled to recover the purchase price of the suit property from the 1 st and 2nd Defendants at the prevailing market value. ELCO E008 OF 2023 JUDGMENT Page 2

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5. Whether the costs of the Originating Summons should be provided for and who should bear the said costs. The Originating Summons was based on the grounds on the face thereof and on the supporting affidavit of the Plaintiff, sworn on 18 th September 2023. The Plaintiff averred that he took possession of the suit property after purchasing it from the 1 st and 2nd Defendants on 14th July 1995, and began cultivating maize and green grams thereon. The Plaintiff averred that his possession and use of the suit property was uninterrupted, peaceful, and without any right. The Plaintiff averred that, as at the time of coming to court, he had occupied and used the suit property for more than 28 years without interference from anybody. The Plaintiff averred that on 5 th August 2023, one Pamela Auma called him and told him to stop cultivating the suit property. The Plaintiff averred that he proceeded to the land registry, conducted a search, and was astonished to realise that the suit property had already been disposed of and registered in the name of the 3rd Defendant. The Plaintiff averred that the Defendants' title to and interest in the suit property had been extinguished by the operation of law and that they were holding the same in trust for him. ELCO E008 OF 2023 JUDGMENT Page 3

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The Plaintiff averred that the registration of the suit property in the name of the 3rd Defendant should be cancelled and the property registered in his name on account of his continued, peaceful, exclusive and uninterrupted occupation of the same for more than 28 years. The Plaintiff averred that the 1 st and 2nd Defendants had no capacity to dispose of the suit property, and that the registration of the 3rd Defendant as the owner of the suit property was procured unconstitutionally and through a corrupt scheme. Although the Defendants have indicated in their submissions that they filed a replying affidavit in response to the Originating Summons, none is in the court file, nor is there any in the CTS, and no such affidavit was referred to at trial. In the circumstances, I will assume that none was filed. The Originating Summons was heard through oral evidence. The Plaintiff adopted his witness statement dated 18 th September 2023 as his evidence-in-chief. In the statement, he reiterated the contents of his affidavit in support of the Originating Summons, as highlighted above. It is not necessary to rehearse the same here. The Plaintiff produced a copy of the agreement of sale dated 14 th July 1995, a copy of the identity card for Pius Sweta Ndinya, a copy of the death ELCO E008 OF 2023 JUDGMENT Page 4

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certificate for the same person and a copy of a letter dated 22 nd August 2023 as a bundle as P.EXH.1. He also produced a search certificate for the suit property as PEXH2. He told the court that he bought the suit property in 1993 and had been using the property since then. He stated that he was paying for the property in instalments, and that the last instalment was paid in 1995, when he entered into a written agreement of sale with the 1 st and 2nd Defendants. He stated that he took possession of the suit property in 1993 after paying the first instalment and had used the property over the years to cultivate maize, beans and green grams. He told the court that he had occupied the property uninterrupted since 1993. He told the court that his prayer was to be allowed to continue using the land. He stated that if he could not obtain the land, he should be compensated. In cross-examination by the Defendants’ advocate, the Plaintiff stated that when he bought the suit property, it was registered in the name of Pius Sweta Ndinya, who was deceased at the time. He stated that the property was sold to him by the widow of the deceased and her two sons, the 1st and 2nd Defendants. He told the court that the 2 nd Defendant had since died. He told the court that he learnt that ELCO E008 OF 2023 JUDGMENT Page 5

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succession in respect of the estate of the deceased had been done when the 3rd Defendant appeared on the scene and claimed to have purchased the suit property. He told the court that he was claiming the entire property. He stated that he purchased the entire parcel, not a portion. He denied that the first time he cultivated the suit property was in November 2023, when he heard that a survey was to be undertaken. Upon re-examination by his advocate, the Plaintiff stated that he drafted the agreement for sale. He stated that he used the word “portion” in the agreement to mean a piece of land. He stated that he erred in using that word, as he did not mean that he was buying a portion of the land in question. The first Defendant, John Odiko Sweta, told the court that the Plaintiff and the 2nd Defendant were known to him. He told the court that the 2nd Defendant was his deceased brother. He stated that his brother died in 2014. He adopted his witness statement dated 19 th April 2024 as part of his evidence-in-chief. He told the court that they sold to the Plaintiff a portion of the suit property measuring ¼ of an acre at Kshs. 32,500/-. He denied that they sold the whole property to the Plaintiff. He further denied that the Plaintiff had been cultivating the suit ELCO E008 OF 2023 JUDGMENT Page 6

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property since 1995. He stated that the land had never been cultivated by the Plaintiff until 2023. In cross-examination by the Plaintiff’s advocate, the 1 st Defendant admitted that he entered into a sale agreement with the Plaintiff. He stated that they had conducted succession in respect of the estate of Pius Sweta, but had not brought evidence of the same with him. He stated that he was aware of a meeting held at the chief’s office regarding the suit property, at which it was resolved that they would pay the Plaintiff Kshs. 1,500,000/- as a refund of the purchase price. He told the court that he had not stopped the Plaintiff from using the suit property. In examination by the court, the 1 st Defendant stated that the suit property had not been used since 1995. He stated that the Plaintiff started using the land in 2023. He told the court that he had no problem with the Plaintiff receiving his ¼-acre portion of the land he purchased. He stated that the Plaintiff was suing for the whole land. The 3rd Defendant told the court that she was a settler at Obambo, Kisumu Kanyawegi. She stated that she was living in the USA at the time of her evidence. She adopted her witness statement as her evidence-in-chief. She stated that she purchased the suit property on ELCO E008 OF 2023 JUDGMENT Page 7

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6th March 2023 from Benter Akinyi Sweta, who was in the process of undertaking succession in respect of the estate of the deceased owner of the property, Pius Sweta Ndinya. She told the court that she was the registered owner of the suit property. She stated that the property was transferred to her on 15th May 2023 after Benter Akinyi Sweta had completed the succession process. She stated that she visited the property in 2022 before purchasing it, and the land was fallow and swampy in the middle. She stated that the suit property was being used for cattle grazing. She stated that no cultivation was being undertaken on the land. She told the court that the swampy area was about ¼ of the land. She told the court that she visited the land at the beginning of the year 2022. She stated that she entered into an agreement of sale with the sellers of the property after the Grant of Letters of Administration in respect of the estate of the deceased owner had been confirmed. She stated that after the suit property was registered in her name on 15 th May 2023, she engaged a surveyor to survey the land. She stated that when they went to the land for that purpose, they found it had been cultivated, and that was when she reported the matter to the area chief. She told the court that they appeared before the chief, and that it was agreed that the ELCO E008 OF 2023 JUDGMENT Page 8

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Plaintiff, who attended the meeting, would be given an alternative piece of land as compensation. She stated that the Plaintiff demanded Kshs. 1,500,000/-, but he was told he could not get that amount. She stated that the Plaintiff thereafter ploughed the whole land. In cross-examination by the Plaintiff’s advocate, the 3 rd Defendant stated that she was the registered owner of the suit property, and that she was not aware that the land had earlier been sold to the Plaintiff until 2023, when she was sued. She stated that she entered into a formal agreement with the sellers of the property in March 2023, but negotiations had begun earlier. She stated that, following her complaint, they met at the chief’s office, during which the chief told the sellers to refund the Plaintiff his money. She stated that she bought the land for KShs. 1,400,000/-, which was the property's value at the time. Upon examination by the court, the 3rd Defendant stated that, in March 2023, when she entered into an agreement to purchase the suit property, the land was still in the same condition as when she first viewed it. She stated that the land was still fallow and swampy in part, and there was no cultivation. She stated that she first saw ELCO E008 OF 2023 JUDGMENT Page 9

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cultivation on the land in October 2023, and that was when she reported the matter to the chief. She stated that by the time she went to the chief’s office, she had been sued and served, but did not know that the whole land had been registered in her name. The Defendants called one witness, Alex Agai Ouko (DW3). DW3 stated that he was coming from Kanyawegi, and that the Plaintiff as well as the 1st Defendant were known to him. He adopted his witness statement dated 19th April 2024 as his evidence-in-chief. He stated that he was living on a land parcel with Title No. Kisumu/Kanyawegi/4473, which was about 100 meters from the suit property. He stated that the suit property had not been cultivated since the former owner, Pius Sweta Ndinya, died in 1980. He stated that in November 2023, when he went to graze his cattle in the area, he found the suit property ploughed with a tractor. He denied that the property had been cultivated after 1980, before November 2023. In cross-examination by the Plaintiff’s advocate, DW3 stated that he was not aware that the family of the 1 st Defendant had sold the suit property to the Plaintiff. He stated that the suit property was a grazing field, and he had grazed his cattle thereon. He told the court that he saw the Plaintiff using the suit property in 2023. ELCO E008 OF 2023 JUDGMENT Page 10

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The parties filed written submissions after the close of evidence. The Plaintiff’s submissions The Plaintiff filed submissions dated 30 th June 2025. The Plaintiff submitted that his possession of the suit property had been uninterrupted, exclusive, and known to the registered owners’ family, who participated in the initial sale and provided documents in furtherance of the succession process. The Plaintiff submitted that the Defendants failed to fulfil their obligations under the agreement of sale and allowed the Plaintiff to remain in possession for decades without asserting ownership rights. The Plaintiff submitted that time began to run upon the breach of the agreement. The Plaintiff submitted that Section 37(a) of the Limitation of Actions Act is clear that a title to land may be extinguished by adverse possession. The Plaintiff submitted that upon expiry of 12 years, the paper title holder retains only a bare legal interest, and the equitable interest passes to the possessor. In support of this submission, the Plaintiff cited Wambugu v. Njuguna[1983] KLR 172 and Chevron (K) Limited v. Harrison Charo Wa Shutu (2016) e KLR . The Plaintiff submitted that the 1st and 2nd Defendants’ failure to obtain a Grant of Letters of Administration for close to 30 years extinguished their ELCO E008 OF 2023 JUDGMENT Page 11

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beneficial interest in the suit property. The Plaintiff submitted that the 1st and 2nd Defendants held the title of the suit property in constructive trust for the Plaintiff. In support of this submission, the Plaintiff cited Mwangi & Another v. Mwangi (1986) KLR 328. The Plaintiff further submitted that the transfer of the suit property to the 3rd Defendant was a nullity ab initio. The Plaintiff submitted that the 1st and 2nd Defendants had no capacity to transfer the suit property that was registered in the name of their deceased father and in respect of which no succession had been done to the 3 rd Defendant. The Plaintiff submitted that no valid legal title could pass to the 3rd Defendant in the circumstances. Citing the Supreme Court case of Dina Management Limited v. County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) (2023) KESC 30 (KLR), the Plaintiff submitted that the 3rd Defendant either knowingly or negligently procured the fraudulent registration of the suit property in her name. The Plaintiff submitted that the Defendants failed to produce evidence of how the suit property passed from the name of the deceased to the 3rd Defendant, despite having been directed by the court to do so. ELCO E008 OF 2023 JUDGMENT Page 12

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The Plaintiff submitted that the 1st and 2nd Defendants breached the sale agreement between them and the Plaintiff by failing to effect the transfer of the suit property to the Plaintiff, thereby occasioning him loss. The Plaintiff submitted that a court may award restitution or compensation, especially where specific performance is no longer possible or an illegal transfer frustrates the contract's objective. In support of this submission, the Plaintiff cited Macharia Mwangi & 87 Others v. Davidson Mwangi Kagiri (2014) eKLR . The Plaintiff submitted that equity shall suffer no wrong without a remedy, and no man shall benefit from his wrongdoing. The Plaintiff further submitted that equity detests unjust enrichment. The Plaintiff urged the court to consider the current market value of the suit property in computing the refund payable to the Plaintiff since the Plaintiff’s loss was not the purchase price, he paid for the property in 1995, but the loss of value and the opportunity cost of property. Regarding costs, the Plaintiff submitted that he had been compelled to litigate to protect land he had occupied, cultivated, and relied on for nearly 3 decades. The Plaintiff submitted that the Defendants’ conduct, particularly the 1st and 2nd Defendants’ duplicity and the 3 rd Defendant’s role in facilitating an illegal registration warranted the ELCO E008 OF 2023 JUDGMENT Page 13

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award of costs against all the Defendants. In support of this submission, the Plaintiff cited Supermarine Handling Services Ltd. v. Kenya Revenue Authority (2010) eKLR and Devram Dattan v. Dawda (1949) EACA 35. The Defendants’ submissions The Defendants filed submissions dated 19th June 2025. The Defendants submitted that the Plaintiff had failed to prove his claim for adverse possession. The Defendants submitted that the Plaintiff had failed to prove that he had been in open and exclusive possession as of right, of the suit property after the owner's dispossession or the discontinuation of the owner’s possession for the statutory period of 12 years. The Defendants submitted that the Plaintiff’s entry into the suit property was permissive, the Plaintiff having been granted permission to enter the property by the beneficiaries of the estate of the deceased owner of the property pending the filing of succession proceedings in respect of the estate. In support of this submission, the Defendants cited Mbira v. Gachuhi [2002]1 EALR 137 and Josinter Atieno Ouma & Another v. Joshua Omiti [2018] eKLR. The Defendants submitted that the Plaintiff failed ELCO E008 OF 2023 JUDGMENT Page 14

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to prove the core ingredients of adverse possession and urged the court to dismiss the suit with costs to the Defendants. Analysis and Determination I have considered the pleadings, the evidence tendered, and the submissions filed by the advocates for the parties. The following, in my view, are the issues that arise for determination in this suit; 1. Whether the Plaintiff has proved his adverse possession claim in respect of the suit property. 2. Whether the Plaintiff is entitled to the reliefs sought in the Originating Summons. 3. Who is liable for the costs of the suit? In Kimani Ruchine & Another v. Swift, Rutherford Co. Ltd. & another [1977] KLR 10 Kneller J. stated as follows at page 16 on proof of adverse possession: “The Plaintiffs have to prove that they have used this land which they claim as of right, necvi, nec clam, necplecario (no force, no secrecy, no evasion) …The possession must be continuous. It must not be broken for any temporary purposes or by any endeavors to interrupt it or by any recurrent consideration.” ELCO E008 OF 2023 JUDGMENT Page 15

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In Wambugu v. Njuguna [1983] KLR 172 the court stated as follows: “First in order to acquire by the Statute of Limitations title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title entails acts which are inconsistent with his enjoyment of the soil and for the purpose for which he intended to use it. The Limitation of Actions Act (Chapter 22) on adverse possession contemplated two concepts: dispossession and discontinuance of possession. The proper way of assessing proof of adverse possession would then be 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 has been in possession for the requisite number of years.” In Mbira v. Gachuhi [2002] 1 EALR 137, the court stated as follows: “… a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period, must prove non permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutorily prescribed period without interruption…” In Kisumu Civil Appeal No. 27 of 2013, Samuel Kihamba v. Mary Mbaisi [2015] eKLR , the court stated that: ELCO E008 OF 2023 JUDGMENT Page 16

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“Strictly, for one to succeed in a claim for adverse possession, one must prove and demonstrate that he has occupied the land openly, that secrecy, and without license or is, without force, without permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land” In Gabriel Mbui v. Mukindia Maranya [1993] eKLR the court stated as follows: “(3) The occupation of the land by the intruder who pleads adverse possession must be non-permissive use, ie without permission from the true owner of the land occupied. It has been held many times that acts done under licence or permitted by, or with love of, the owner do not amount to adverse possession and do not give the licensee or permitted entrant any title under the limitation statute. If one is in possession as a result of permission given to him by the owner, or if he is in possession of the land as a licensee from the owner, he is not in adverse possession. Permissive occupation is inconsistent with adverse possession. The stranger must show how and when his possession ceased to be permissive and became adverse. The rule on permissive possession is that possession does not become adverse before the end of the period during which one is permitted to ELCO E008 OF 2023 JUDGMENT Page 17

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occupy the land. Accordingly, where a permissive possession or occupation accorded on the ground of charity or relationship was intended, limitation operates from the time when possession first became adverse; a licensee (whose possession is only permissive) cannot claim title only by possession was adverse to that of the licensor to his knowledge and with his acquiescence; where possession was consensual or contractual in its inception, it cannot be called “adverse”. Thus, when possession is given by the vendor in pursuance of a sale, it is by leave and licence of the vendor; it is not just taken. It does not matter how one describes the nature or the giving or taking of possession, but if the occupier did not go into possession against the will of the owner, and if the owner’s will accompanied the occupier’s possession, the owner thereby gives leave, permission, or consent to the occupier, and the occupier is not a trespasser or anything like that. The actual possessor must have usurped the land without leave. Possession by leave and licence of the owner is not adverse possession, for then the owner who has given leave has no cause of action during the time span of his permission or licence and the limitation period does not run against him until the licence has ended. If possession has commenced and continued in accordance with any contract, express or implied, between the parties in and out of possession, to which the possession may be referred as legal and proper, it cannot be presumed adverse. So also in cases between mortgagor and mortgagee. The ingredient of ELCO E008 OF 2023 JUDGMENT Page 18

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unpermitted occupation is usually expressed as “hostile” possession, to emphasize that “hostility” is the very marrow of adverse possession. And to say that possession is hostile means nothing more than that it is without permission of the one legally empowered to give possession. Any kind of permissive use, as by a tenant, licensee, contract purchaser in possession, or easement holder, is rightful and not hostile. Any time an adverse possessor and owner have discussed the adverse possession, permissive agreement may have occurred, and that destroys adverse possession (Cobb v Lane [1952] 1 All E R 1199; Denning, MR, in Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and B P Ltd [1974] 3 All ER 575 at p 580; Chanan Singh, J, Jandu v Kirpal and another (1975) EA 225 at pp 233, 234, 237; Madan, J (as he then was), in Gatimu Kinguru v Muya Gathangi, 1[1976] Kenya L R 253, at pp 257, 258)” (underlining added) In Githu v. Ndeete (1984) KLR 776, it was held that: “The mere change of ownership of land which is occupied by another person under adverse possession does not interrupt such person’s adverse possession”. The Plaintiff’s adverse possession claim is based on the agreement of sale dated 14th July 1995. Although the agreement is said to have been entered into between the Plaintiff on the one hand and the 1 st and 2nd Defendants on the other, it was not signed by the 2 nd ELCO E008 OF 2023 JUDGMENT Page 19

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Defendant. The agreement was therefore between the Plaintiff and the 1st Defendant. In any event, the 2 nd Defendant is said to be deceased. The court was told that he died in 2014. That was before the date of the agreement of sale. It is not clear why he was included in the agreement as one of the vendors and subsequently sued. The agreement of sale dated 14 th July 1995 (the agreement of sale), provides that the Plaintiff purchased a portion of the suit property whose measurement was not given. It also provides expressly that the suit property was registered in the name of Pius Sweta Ndinya, who was deceased by then (the deceased), and that the 1 st Defendant was to assist the Plaintiff to have the property registered in his name. The agreement did not specify the timeframe within which the 1 st Defendant or the administrators of the deceased's estate were to transfer the suit property into the Plaintiff's name. A number of issues arise from the foregoing. First, the measurement of the portion of the suit property which was purchased by the Plaintiff is not clear from the agreement. The Plaintiff claimed that he purchased the entire property, a claim not supported by the documentary evidence he produced. The 1st Defendant, on his part, claimed that he sold to the Plaintiff a portion of the suit property ELCO E008 OF 2023 JUDGMENT Page 20

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measuring ¼ of an acre. In his testimony, the Plaintiff told the court that a portion of the suit property was swampy and that he was only using the portion thereof which was not swampy. He did not give the measurement of the said portion of the suit property, which was not under his use. In the circumstances, the measurement of the portion of the suit property which the Plaintiff purchased from the 1 st Defendant and which he claimed to have occupied since 1993 is not certain. Secondly, the agreement between the 1st Defendant and the Plaintiff was open-ended. It did not have a completion date. It is common ground that the Plaintiff entered the suit property with the permission of the 1st Defendant and other members of the family of the deceased owner of the property. Since the agreement of sale had no completion date, it is not possible to ascertain when it can be said that the Plaintiff’s occupation became adverse to the interest of the 1st Defendant, who, the court was told, subsequently became the administrator of the estate of the deceased. In the absence of evidence as to when the Plaintiff’s possession of the suit property ceased to be permissive and became adverse, to the estate of the deceased, there is no basis upon which the court can make a finding ELCO E008 OF 2023 JUDGMENT Page 21

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that the Plaintiff had acquired the suit property by adverse possession at the time he instituted this suit. In his witness statement which he adopted as his evidence in chief, the Plaintiff stated that he approached the 1st Defendant and his mother one Benter Akinyi in 2021 and requested them to process for him a title deed for the suit property, and the two gave him a copy of the Death Certificate for the deceased registered owner of the property together with a copy of his Identity Card, and copies of their Identity Cards so that he(the Plaintiff) could assist them in obtaining a Grant of Letters of Administration so that they could transfer the suit property to him. This means that in 2021, the Plaintiff treated the agreement of sale between him and the 1st Defendant as still valid and enforceable, and acknowledged the deceased’s estate’s title to the property. With this admission of the deceased’s interest in the suit property in 2021, the Plaintiff cannot say that, as at that date, he was in adverse possession of the suit property. Still on the issue of possession, the Plaintiff has not persuaded me that he had been in continuous possession of the suit property since 1993 at the time of filing this suit. Apart from the cultivation undertaken in 2023, which gave rise to this suit, which was admitted, ELCO E008 OF 2023 JUDGMENT Page 22

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the plaintiff produced no evidence of any activity he had undertaken on the suit property prior to that date. Upon appraisal of the evidence as a whole, I find that the Plaintiff has not proved his claim of adverse possession of the suit property. Since the Plaintiff has not established any valid proprietary interest in the property, there is no basis on which he can attack the 3 rd Defendant’s title, which, in my view, was also acquired in an obscure manner. The 3rd Defendant failed to produce an agreement of sale between her and the deceased’s wife, Benter Akinyi, whom she claimed sold her the suit property. Although the evidence on record shows that the suit property is registered in the name of the 3 rd Defendant, no evidence was placed before the court of how the property moved from the name of the deceased to that of the 3 rd Defendant. There was no evidence as to who transferred the property to the 3 rd Defendant, as no Grant of Letters of Administration in respect of the deceased's estate was produced before the court. If the Plaintiff had established his adverse possession claim, the court would not have hesitated in cancelling the registration of the 3 rd Defendant as the owner of the suit property. As things stand now, though, there would be no justification for such action. ELCO E008 OF 2023 JUDGMENT Page 23

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The Plaintiff claimed in the alternative a refund of the purchase price paid for the suit property. The 1st Defendant admitted that he sold a portion of the suit property measuring ¼ of an acre to the Plaintiff for Kshs. 32,500/-. Since the 1st Defendant subsequently sold the entire property to the 3rd Defendant in 2023, and as such, the consideration for which the Plaintiff paid Kshs. 32,500/- has failed, the Plaintiff is entitled to a refund of the said purchase price. The Plaintiff did not lay a basis for his contention that the refund should be based on the current market price for the suit property. The Plaintiff is entitled only to the refund of the purchase price paid together with interest from the date the suit property was transferred to the 3 rd Defendant. Conclusion In conclusion, the Plaintiff succeeds in his alternative claim. I therefore make the following orders in the matter: 1. The Plaintiff’s adverse possession claim is dismissed. 2. Judgment is entered for the Plaintiff against the 1 st Defendant for Kshs. 32,500/- being a refund of the purchase price paid together with interest at court rates from 15 th May 2023 until payment in full. 3. Each party shall bear its costs of the suit. ELCO E008 OF 2023 JUDGMENT Page 24

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Written and signed at Nairobi by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this day of May 2026 21 st E. ASATI JUDGE Judgment delivered virtually through Microsoft Teams Platform in the presence of: Ohayo for the Plaintiff No appearance for the Defendants Atika Court Assistant ELCO E008 OF 2023 JUDGMENT Page 25

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