Okiya v Obuya & another (Environment and Land Case 169 of 2016) [2026] KEELC 4513 (KLR)

3. 4. Whether the Plaintifi is entitled to be registered as owner of the land parcels NO Marachi/ Kingandole/1082 and 1083. 5. Who should pay costs of this case. Arising from the determination of the above, the Plaintifi sought the following orders: a. That the Defendants rights over the land parcel NO Marachi/Kingandole/1082 and 1083 got extinguished by adverse possession upon expiry of the over 23 years from the date the Plaintifi and his deceased father OKibulu Okiya Osobolo came into possession. b. That the Defendants be perpetually barred by an order of permanent injunction from putting to use, constructing on, transferring, alienating, sub-dividing, fencing ofi or in any manner whatsoever putting to use and interfering with the Plaintifi’s peaceful, quiet, uninterrupted possession and occupation. c. That the Plaintifi be registered as owner of the land parcels NO Marachi/ Kingandole/1082 and 1083 and the Defendants be directed to forthwith execute all relevant transfer forms to enable the Plaintifi obtain title and in default, the Deputy Registrar be mandated to execute the said transfer forms on behalf of the Defendants. d. That the Defendants do give vacant possession of the land parcels NO Marachi/ Kingandole/1082 and 1083 and/or in default an order of eviction be issued against them, their servants, workers, agents or any other person claiming through them. e. That the Defendants do pay costs of this case. In support of the Originating Summons, the Plaintifi filed his afidavit of even date in which he has averred, inter alia that he files this suit on his own behalf and on behalf of his late father OKibulu Okiya Osobolo whose Estate he represents. That he has been in actual possession and occupation of the suit land for an un-interrupted and peaceful period of 23 years since 1987. 4. The Plaintifi annexed to his supporting afidavit the following documents: 1. Copy of a letter dated 14th August 2012 from the Chief Bujumba location and addressed to the District Lands Registrar Busia requesting that a restriction be placed on the suit land. 2. Copy of Certificate of search for the land parcel NO Marachi/Kingandole/1082. 3. Copy of Certificate of search for the land parcel NO Marachi/Kingandole/1083. The Plaintifi also filed another afidavit dated 20th April 2018 in which he averred inter alia, that the suit land belonged to his late father one OKibulu Okiya Osobolo who died on 12th July 1987. That before his demise, his late father had sold his land parcel NO Marachi/ Kingandole/942 to two difierent persons, namely Esunya Otieno 2 acres out of Marachi/ Kingandole/1083, and to Peter Sangirwa 2 acres out of Marachi/ Kingandole/1082. That instead of curving and surveying 2 acres, Esunya Otieno surveyed 7½ acres without the knowledge of the deceased. That on 23rd August 1997 Esunya Otieno admitted in the presence of Lawberito Makokha Opesa that he had over-surveyed the land by an extra 5½ acres and agreed that he would refund the extra land to the Plaintifi. However, after sometime, he discovered that the 1st Defendant had purchased the suit land from Esunya Otieno. He prays that the court helps him so that the land sold to the buyers being 3 acres and 2 acres respectively be surveyed and given to them and that the remaining land be given to his family. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4513/eng@2026-07-16 2

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5. The Plaintifi also filed afidavits of his two witnesses, Raphael Osuru Magina And Lawberito Makokha Opesa both dated 20th April 2018. 6. In his afidavit dated 20th April 2018 Lawberito Makokha Opesa states that he is a neighbour of the Plaintifi who is the eldest son to OKibulu Okiya Osobolo. That on 23rd August 1997 he was a witness when Esunya Otieno agreed in writing that he would refund back to the Plaintifi land which had been over-surveyed. However, after a short period, the land was sold to the 1st Defendant. That OKibulu Okiya Osobolo had sold 2 acres to Esunya Otieno and 3 acres to Peter Sangirwa. It is his evidence that the land which Esunya Otieno bought is far much less than the land which he sold to the 1st Defendant and on which he is staying. 7. On his part, Raphael Osuru Magina states that he is a cousin to the Plaintifi and they are neighbors in their village. That the Plaintifi is the son to one OKibulu Okiya Osobolo now deceased. That in 1973, the said OKibulu Okiya Osobolo sold 2 acres of his land to Osunya Otieno vide a sale agreement dated 27th March 1973. The said land was subsequently sold to the 1st Defendant by Osunya Otieno. However, the 1st Defendant surveyed 7½ acres yet he had only purchased two acres. It is his evidence therefore that the extra land be given to the Plaintifi. 8. The 1st Defendant filed two replying afidavits in response to the Plaintifi’s Originating Summons. In the first replying afidavit dated 16th December 2016, he describes the Plaintifi as a stranger to the land parcel NO Marachi/Kingandole/1083 which he says he purchased from one TEresina Musumba a widow to the late Suunya Othieno Musumba who in turn had purchased it from OKibulu Okiya Osobolo who had no family. That the late OKibulu Okiya Osobolo was a paternal uncle to the Plaintifi but had been disturbing Teresina Musumba who opted to sell the land to him. The Plaintifi has however persistently frustrated the 1st Defendant when he tries to utilize the land. The matter was even reported to the Provincial Administration and the Plaintifi was summoned but failed to turn up. The Plaintifi has been threatening to evict him yet he has his own land given to him by his late father JUMA IBURI. Therefore, the Plaintifi has no right to get the orders sought in his Originating Summons which should be dismissed with costs for being an abuse of the court process. 9. In the further replying afidavit dated 1st March 2019, he adds that OKibulu Okiya Osobolo is not the Plaintifi’s father as alleged but rather, his uncle. That the Plaintifi’s father is JUMA IBOLE. That the Plaintifi therefore used false information to obtain the Limited Grant and is guilty of perjury. 10. That he purchased the land parcel NO Marachi/Kingandole/1083 in 2004 and has been ploughing it until 2012 when the Plaintifi forcefully started cultivating 2 acres thereof and the 1st Defendant reported to the area Chief who wrote a letter dated 14th August 2012. That the Plaintifi has never had a homestead on the land parcel NO Marachi/Kingandole/1083 but has one on the land parcel NO Marachi/ Kingandole/1082 which belongs to the to the 2nd Defendant. That in 2012, the Plaintifi sought to extend the boundary of the land parcel NO Marachi/Kingandole/1082 into his land. That the Plaintifi’s father, Juma Ibole And Okibulu Osobolo had difierent parcels of land. And in 2014, the Chief Bujumba Location wanted to purchase the land for purposes of putting up a community school but the 1st Defendant declined and so the chief tried to stop him from using the land, but the Assistant County Commissioner intervened. 11. On 30th March 2017, the Plaintifi trespassed onto the 1st Defendant’s land and destroyed trees whose value was assessed by the KEnya Forest Service. The Matter Was Reported To Bumala Police Station vide OB NO 25/30/3/2017. The Plaintifi avoided arrest by going to Nairobi and is misleading this court to believe that he has been in un-interrupted occupation of the land parcel NO Marachi/ Kingandole/1083 which is false. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4513/eng@2026-07-16 3

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12. The 1st Defendant filed two lists of documents the first dated 16th December 2016 and the second dated 24th July 2023. 13. In the first list dated 16th December 2016 he annexed the following documents: 14. 1. Copy of the title deed for the land parcel NO Marachi/Kingandole/1083. 2. Copy of the Green Card for the land parcel NO Marachi/Kingandole/1083. 3. Report of the Kenya Forest Service dated 10th April 2017 on damage to trees on the land parcel NO Marachi/Kingandole/1083. The further list of documents dated 24th July 2023 had the following documents: 1. Copy of transfer form dated 14th April 2009 for the transfer of the land parcel NO Marachi/ Kingandole/1083 to the 1st Defendant by Teresina Achola Musumba. 2. Copy of a letter dated 8th October 2019 addressed to A.G Opiyo & Company Advocates By Ashioya & Company Advocates suggesting a settlement of this dispute. 3. A copy of the response by the firm of A.G Opiyo Advocates dated 18th October 2019. The 1st Defendant filed a statement of his witness Julius Musumba dated 1st March 2019. He states that his late father Suunya Otsieno purchased the land in 1960s from Okibulu Osobolo. He does not identify the land but since he is the witness for the 1st Defendant, this court can only assume that he must be referring to the land parcel NO Marachi/Kingandole/1083. That his father initially purchased 5 acres from Okibulu Osobolo but they later agreed that he buys the whole parcel Marachi/Kingandole/1083 and takes care of his burial when he (Okibulu Osobolo) dies. That Suunya Otsieno Obtained the title deed for the said land before Mr. Okibulu Osobolo died. That his parents used to plough the whole land every year and even put up a temporary house thereon. 15. When his father died, his mother continued ploughing the land but when she became ill in 2000, she started leasing part of it to several people. In 2004, they sat down as a family and decided to sell the land to the 1st Defendant who obtained the title deed in 2009. 16. In 2012, the 1st Defendant complained to them that the Plaintifi was ploughing part of the land. However, when he went to see the Plaintifi, he found that he had gone to Nairobi. Later, the 1st Defendant and Teresina Musumba (the witness’s mother) went to the Chief’s Ofice to complain, but the Plaintifi was very arrogant. It is his evidence that the land belongs to the 1st Defendant. 17. The 2nd Defendant filed a replying afidavit and statement both dated 17th June 2019 in response to the Originating Summons. 18. In the replying afidavit, he has deponed inter alia, that he is the registered proprietor of the land parcel NO Marachi/Kingandole/1082 which he purchased in 2002 from one Peter Shangiro Kahe. However, in 2009, the 1st Defendant forcefully trespassed onto the said land and started ploughing to-date yet he had a contract with Mumias Sugar Company to whom he used to sell sugar cane. 19. That the Plaintifi is a fraud and is not the biological son to the late OKibulu Okiya Osobolo and he has come to court with unclean hands. Therefore, the Plaintifi should not benefit from this case. That the said Peter Shangiro Kabe is the one who footed all the expenses of OKibulu Okiya Osobolo’S funeral. That the Plaintifi has no structures on the said land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4513/eng@2026-07-16 4

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20. In his statement of even date, the 2nd Defendant basically repeats the averments contained in his replying afidavit. 21. He also filed a list of documents dated 17th June 2019 to which he has annexed the following documents: 1. Copy of Green Card to the land parcel NO Marachi/Kingandole/1082. 2. Copy of transfer form for the land parcel NO Marachi/Kingandole/1082. He also filed a further list of documents dated 26th October 2021 and which contained the same documents as the list dated 17th June 2019. And although he also listed contract documents with Mumias Sugar Company, no such documents were produced. 22. He also filed the statement of his witness Peter Otieno Wakhudu dated 1st March 2019 and filed on 5th March 2019. 23. In the said statement, the witness confirms that he knows both the Plaintifi and the 1st Defendant. That the land parcel NO Marachi/Kingandole/1083 belonged to Okibulu Osobolo who sold it to Musumba Suunya whose wife Teresina Musumba later sold it to the 1st Defendant who has been using it without any interference. That the Plaintifi is the son of one JUMA IBOLE who died long time ago yet he has been ploughing the said land claiming that it belongs to his father which is not true. That the Plaintifi has been residing on the land parcel NO Marachi/Kingandole/1082 and NO 1083. And even then, the Plaintifi had forcibly entered the land parcel NO Marachi/Kingandole/1082 and pushed the owner into the land parcel belonging to the 1st Defendant. The 1st Defendant has been in occupation of land NO Marachi/Kingandole/1083 since 2004 which the Plaintifi wants to grab. 24. The hearing commenced on 14th November 2023 and terminated on 17th July 2025. The Plaintifi testified and called his witnesses and so too did the two Defendants. They all adopted as their testimony the contents of their statements and afidavits which I have already summarized above. They also produced as part of their evidence the documents filed herein. 25. Submissions were thereafter filed both by Mr. Ashioya instructed by the firm of Ashioya & Company Advocates For The Plaintifi, Mr. Obwatinya instructed by the firm of Obura Obwatinya & Company Advocates for the 1st Defendant, and by MR. Ipapu instructed by the firm of Ipapu P. Jackah & Company Advocates for the 2nd Defendant. 26. A person claiming to be entitled to land by way of adverse possession is entitled to approach the court under Section 38 (1) of the Limitation of Actions Act. It provides that: 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 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.” 27. In Kasuve -v- Mwaani Investments Ltd & Others 2004 1 KLR, the Court of Appeal set out what a party claiming land by way of adverse possession must prove. It said: “ 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 or by the discontinuation of possession by the owner on his own volition – Wanje -v- Saikwa NO 2 1984 KLR 284.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4513/eng@2026-07-16 5

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28. Such possession must be without force, stealth, and the permission of the owner - Kimani Ruchine -vSwift Rutherford Company Ltd 1980 KLR 10. It must be open, continuous, peaceful, notorious and with the knowledge of the owner - Robert Shume & Others -v- Samson Kazungu Kalama 2015 eKLR. 29. In the case of Mtana Lewa -v- Kahindi Ngala Mwagandi C.A Civil Appeal No 56 of 2014 [2015 eKLR], the Court of Appeal described the doctrine of adverse possession in the following terms: “ 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. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act …” It is not in dispute that the land parcel NO Marachi/Kingandole/1082 is registered in the name of the 2nd Defendant since 1st April 2004 although on 15th August 2012, the Plaintifi placed a restriction thereon. The land parcel NO Marachi/Kingandole/1083 has since 2nd July 2009 been registered in the name of the 1st Defendant and on 15th August 2012, the Plaintifi placed a restriction thereon. Therefore, the registration of the land Marachi/Kingandole/1083 in the names of the Defendants is not disputed. 30. The Plaintifi’s case is that he has been in possession and occupation of the suit land since 1987 peacefully and continuously. In paragraphs 3 and 4 of his supporting afidavit dated 1st December 2016, he has deposed thus: 3: “That I am in actual possession and occupation of LR NO Marachi/Kingandole/ 1082 and 1083 and my occupation and use has been uninterrupted and peaceful for over 23 years since the year 1987.” 4: “That I have been using LR NO Marachi/Kingandole/1082 and 1083 together with my family for over 23 years and such use has been peaceful and continuous.” I notice from the record that by a Notice of Motion dated 19th March 2019 the Plaintifi sought an order of injunction to restrain the Defendants from cultivating or in any other manner interfering with the suit land. The Motion was however withdrawn by consent on 16th November 2020 before OMOLLO J. 31. Another Motion dated 20th June 2022 seeking an order that the County Land Registrar and County Surveyor to visit the suit land and confirm what portion of the suit land the Plaintifi occupies was allowed by consent. However, no report was filed and on 10th November 2022, I directed that since the report was taking too long, any of the parties could call the Land Registrar or Surveyor during the plenary hearing. That was not done. What this court has to rely on therefore is the evidence of the parties and their witnesses as to who is infact in occupation and possession of the suit land and whether indeed the same meets the threshold for the orders that he has acquired the suit land by way of adverse possession. 32. In his statement dated 1st March 2019, the 1st Defendant states in paragraph 1 that: “ I Benjamin Otsieno Obuya Bought Lr No Buhayo/Kingandole/1083 (sic), from the late Mrs. Teresina Musumba who was the wife to the late Suunya Otsieno Musumba after she https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4513/eng@2026-07-16 6

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had gone through the process of succession as required by law. I did not buy the above land from MR. OKibulu Okiya Osobolo.” 33. The reference to the land as “LR NO Buhayo/Kingandole/1083” must be a typographical error as it is common knowledge that the land in dispute is Marachi/Kingandole/1083. Then in the 3rd paragraph he said: “ I Benjamin Otsieno Obuya was issued with the title deed of this parcel (1083) on 3rd July 2009 which I am in possession of upto now ....” When he was cross-examined by Mr. Obwatinya counsel for the 1st Defendant on 14th November 2023, the Plaintifi said: “ It is true that I live on Marachi/Kingandole/1082. My claim is correct. I was born on parcel NO Marachi/Kingandole/1082.” And when he was re-examined by his own counsel Mr. Ashioya, he said: “ The 1st Defendant is entitled to only two acres of land NO Marachi/Kingandole/1083. But he is using the whole 7 acres yet he purchased only 2 acres as per the sale agreement.” Then in paragraph (d) of the orders which he seeks, the Plaintifi has pleaded: (d) “That the respondents do give vacant possession of LR NO Marachi/ Kingandole/1082 and 1083 and or in default an order of eviction be issued against them, their servants, workers, agents, or any other person claiming through them.” Then there is a report from the Sub-county Forest Oficer V.W. Komeri dated 10th April 2017 in which the value of the trees damaged on the land parcel NO Marachi/Kingandole/1083 has been assessed. The report shows that the valuation was done at the request of the 1st Defendant who is named as the complainant. As has already been stated in KAsuve -v- Mwaani Investments Ltd (supra), adverse possession is all about dispossessing the owner of the land in dispute. In the case of Sisto Wambugu -v- Kamau Njuguna 1983 KECA 69 KLR, the Judges cited the following passage from Littledale -vLiverpool College 1900 1 Ch 19 By Lindley M.R. “ In order to acquire by the statute of Limitations a title to land which has a known owner, the owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it ….” From the Plaintifi’s own testimony, it is clear that he has never dispossessed the 1st Defendant of the land parcel NO Marachi/Kingandole/1083. His claim for the said land by way of adverse possession is therefore not proved. It is for dismissal. 34. With regard to the claim for the land parcel NO Marachi/Kingandole/1082 which has been registered in the name of the 2nd Defendant since 15th January 2004, the Plaintifi said he was born on that land. The 2nd Defendant stated during his testimony on 17th July 2025 that the Plaintifi only moved onto the land parcel NO Marachi/Kingandole/1082 in 2009. This is what the Plaintifi stated when crossexamined by Mr. Obwatinya. “ My claim is correct. I was born on parcel NO Marachi/Kingandole/1082.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4513/eng@2026-07-16 7

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35. In his supporting afidavit dated 1st December 2016 and which he adopted as his evidence during the trial, it is stated at paragraphs 3 and 4 as follows: 3: “That I am in actual possession and occupation of LR NO Marachi/ Kingandole/1082 and 1083 and my occupation and use has been uninterrupted and peaceful for over 23 years since the year 1987.” 4: “That I have been using L.R Nos Marachi/Kingandole/1082 and 1083 together with my family for over 23 years and such use has been peaceful and continuous.” If the plaintifi was born on the land parcel NO Marachi/Kingandole/1082 and which he and his family have occupied peacefully and un-interrupted since 1987, then surely one would expect to see pictures of dwelling houses thereon. No such evidence has been availed. A clear indication that the Plaintifi is not in possession and occupation of the land parcel NO Marachi/Kingandole/1082 either. 36. Finally, among the prayers which the Plaintifi seeks in paragraph 5 (d) of his Originating Summons is: (d): “That the respondents do give vacant possession of LR NOs Marachi/Kingandole /1082 and 1083 and or in default an order of eviction be issued against them, their servants, workers, agents or any other person claiming through them.” That prayer can only mean that the Plaintifi and his family are not in occupation and possession of the suit land. In brief, they have not dispossessed the Defendants of the same otherwise they would not be seeking this court to grant them an order for vacant possession of the suit land. The claim against the 2nd defendant is equally for dismissal. 37. The up-shot of all the above is that having considered the evidence herein, this court makes the following dispositive orders: 1. The plaintifi’s suit is dismissed. 2. The plaintifi shall bear the Defendants’ costs of the suit agreed or taxed. JUDGMENT DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 16TH DAY OF JULY 2026 WITH NOTICE TO THE PARTIEs. Right of Appeal BOAZ N. OLAO JUDGE 16TH JULY 2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4513/eng@2026-07-16 8

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