Donaty Musungu Okuku v Magdalene Nabwire, Yabora Barasa, Rosemary Odako & Consolata Makokha

Rules seeking to be declared the owner by adverse possession of a portion measuring 2 acres to be excised from L.R. NO SAMIA/BUDONGO/319. 2. The Applicant sought declarations that the Respondents' title over the said portion had been extinguished by operation of law, that he had acquired title thereto by adverse possession, that the Respondents be compelled to execute transfer documents in his favour, and in default the Deputy Registrar be authorized to execute the necessary documents. He also prayed for costs. 3. The Originating Summons was supported by the Applicant's affidavit sworn on 12th August 2025. He deposed that on 23 rd February 1997, he purchased 3 acres from one JANEROSE AUMA ODAKO alias AUMA ODAKO MUBASA (deceased) but only paid for 2 acres. 4. He averred that immediately after the sale he took possession of the land, cultivated it continuously and exclusively, and has remained in open, peaceful and uninterrupted occupation ever since. He further stated that although succession proceedings relating to the estate of the registered owner BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 2 of 13

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were later concluded in favour of the Respondents, they had never interfered with his possession or occupation of the 2acre portion. 5. The record shows that the Respondents were duly served with summons but failed to enter appearance or file any response. Consequently, the matter proceeded as an undefended claim. At the hearing held on 23 rd July 2026, the Applicant testified on oath, adopted his supporting affidavit together with the annexures as his evidence, and thereafter closed his case. Since the Respondents neither entered appearance nor participated in the proceedings, the defence case was deemed closed, and the Applicant was directed to file written submissions. 6. The Applicant's evidence remained uncontroverted. His testimony was that he has been in actual, open, exclusive and uninterrupted possession of the suit portion from 23 rd February 1997, a period well exceeding the statutory twelve years required under the Limitation of Actions Act. He further produced documentary evidence of the sale agreement, the BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 3 of 13

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land register, photographs of the suit property and documents relating to the succession proceedings. 7. Accordingly, the Applicant contends that the Respondents' title over the portion measuring 2 acres out of L.R. NO SAMIA/BUDONGO/319 has been extinguished by operation of Sections 7, 13, 17 and 38 of the Limitation of Actions Act and that he has acquired ownership thereof by adverse possession. 8. The court is therefore invited to determine whether the Applicant has proved the ingredients of adverse possession and whether he is entitled to the reliefs sought in the Originating Summons. ANALYSIS AND DETERMINATION 9. Having considered the Originating Summons dated 12th August 2025, the affidavits, the documentary evidence and the oral evidence on record, the issue for determination is whether the Applicant has proved that he acquired title by adverse possession over the 2-acre portion of L.R. No. SAMIA/BUDONGO/319, having entered the land pursuant to the sale agreement dated 23 rd February BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 4 of 13

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1997, and if when time began to run against the registered proprietor for purposes of sections 7 and 38 of the Limitation of Actions Act. 10. The law relating to adverse possession is principally anchored in Sections 7, 13, 17 and 38 of the Limitation of Actions Act, Cap. 22. Section 7 bars an action to recover land after the expiry of twelve years from the date when the right of action accrued, while Section 17 provides that, upon expiry of the limitation period, the title of the registered proprietor is extinguished. Section 38, on the other hand, provides the mechanism through which a person who has acquired land by adverse possession may apply to be registered as proprietor. 11. The ingredients of adverse possession are settled. In Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] KECA 161 (KLR), the Court of Appeal held that a claimant must establish exclusive possession of the land openly, as of right and without interruption for a period of twelve years, either after dispossessing the owner or upon the owner's discontinuation of possession. BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 5 of 13

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12. Similarly, in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, the Court of Appeal explained that adverse possession arises where a person takes possession of land and asserts rights over it while the person having title neglects to take action for the statutory period. The possession must be adequate in continuity, publicity and extent so as to demonstrate that it is adverse to the title of the registered proprietor. 13. However, the position is materially different where the claimant's entry and occupation of the land is founded upon a sale agreement. Such possession is initially lawful and permissive, having been granted pursuant to the contractual relationship between the purchaser and the vendor. The critical question therefore becomes whether and when such possession subsequently became adverse to the vendor's title. 14. In Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR), the Court of Appeal considered a similar situation where the respondent had entered and remained in occupation of land pursuant to a sale agreement but failed to BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 6 of 13

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complete payment of the purchase price. The Court held, in substance, that possession pursuant to a contract of sale does not become remains adverse while the contractual relationship subsisting. The Court further found that the respondent's failure to complete payment meant that his occupation remained permissive and could not found a claim for adverse possession. 15. The principle in Sisto Wambugu has subsequently been applied by the Environment and Land Court. In Mageta Enterprises Limited v Tilak Company Limited [2020] KEELC 183 (KLR), the Court held that, “In the present case the court has found and held that there was a sale agreement and that the final installment of the purchase price was paid on 20th July 1996. The plaintiff was in possession of the suit property and applying the principle espoused in the case of Wambugu -vsKamau and the case of Public Trustee -vs- Wanduru (supra) the period of limitation started to run in favor of the plaintiff from 20th July 1996 so that as at 8th August 2008 when the suit was filed the plaintiff had BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 7 of 13

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been in adverse possession of the suit land for a period of over twelve years and had become entitled to be registered as the owner of the land.” The Court reiterated that a purchaser in possession pursuant to a sale agreement cannot claim adverse possession during the validity of the contract unless and until the contract has been terminated, repudiated or rescinded, thereby bringing the purchaser's permissive occupation to an end. 16. The same principle is also reflected in the jurisprudence that, where adverse possession is alleged to arise from a sale agreement involving payment by instalments, time does not ordinarily begin to run in favour of the purchaser before payment of the final instalment. In Nagi & another v Mbugua & 2 others [2025] KEELC 911 (KLR), the Court held that, “In the case of Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR) the Court held as follows: “Accordingly, as it is my view that the respondent made no attempt to perform his obligations and to pay the remainder of the purchase price for several years after the balance was due, he BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 8 of 13

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cannot at this late stage obtain an order for transfer of the land pursuant to the contract, and registration of it in his name. 17. In the present case, the documentary evidence is clear and, in my view, determinative of the issue. The Applicant entered into an express Land Sale Agreement dated 23 rd February 1997 with the deceased vendor for the purchase of three (3) acres out of L.R. No. SAMIA/BUDONGO/319 at an agreed consideration of Kshs.39,000/=. 18. The Applicant paid Kshs.26,000/=, leaving an outstanding balance of Kshs.13,000/=. The evidence therefore establishes that the Applicant did not complete payment of the agreed purchase price. His possession of the land was consequently traceable to, and founded upon, the express contractual arrangement contained in the sale agreement. 19. The Applicant's contention that he is only claiming the two (2) acres corresponding to the Kshs. 26,000/= allegedly paid cannot, without more, alter the express terms of the agreement. The agreement was for three (3) acres at a total consideration of Kshs. 39,000/=. It did not provide that BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 9 of 13

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payment of Kshs. 26,000/= entitled the Applicant to two acres as a distinct and completed transaction. The Court cannot rewrite the parties' agreement or convert a part-payment under an agreement for three acres into a completed purchase of two acres. 20. The fact that the Applicant has framed his claim as one for the two acres for which he states that he paid does not change the contractual nature of his entry into and occupation of the suit property. Pleadings cannot alter or supersede the express terms of a written agreement. The Applicant's rights, if any, arising from the agreement must therefore be considered within the contractual framework in which his possession originated. 21. More importantly, the Applicant has not demonstrated that the sale agreement was subsequently repudiated, rescinded or otherwise terminated in a manner that converted his possession from permissive possession into adverse possession. To the contrary, the evidence demonstrates that the Applicant remained in possession while having failed to BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 10 of 13

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discharge his outstanding contractual obligation of paying the balance of Kshs.13,000/=. 22. In the circumstances, the Applicant's occupation cannot be said to have constituted possession adverse to the vendor's title. His possession remained referable to the sale agreement under which he entered the land. The mere passage of twelve years, therefore, did not cause time to begin running in his favour for purposes of Sections 7 and 38 of the Limitation of Actions Act. 23. The decision in Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR) is particularly instructive in the circumstances of this case. There, just as in the present matter, the purchaser had entered into possession pursuant to an agreement for sale but failed to complete payment of the purchase price. The Court of Appeal rejected the claim founded on adverse possession and held that occupation pursuant to the agreement, coupled with failure to complete the contractual obligations, did not constitute adverse possession. BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 11 of 13

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24. Applying that principle to the facts before this Court, I find that the Applicant has failed to demonstrate the essential element that his possession was adverse to the title of the registered proprietor for the requisite statutory period. His entry and continued occupation were pursuant to the express sale agreement dated 23rd February 1997, under which he did not complete payment of the agreed purchase price. The Applicant therefore cannot rely on his own failure to perform the contractual obligation to pay the balance of Kshs. 13,000/= as a basis for acquiring the land by adverse possession. 25. I consequently find that the Applicant has not proved his claim for adverse possession over the two (2) acres comprised in L.R. No. SAMIA/BUDONGO/319. The requirements under Sections 7, 17 and 38 of the Limitation of Actions Act have not been satisfied. DISPOSITION AND FINAL ORDERS 26. As a result, the Originating Summons dated 12th August 2025 is unmeritorious and is hereby dismissed. And the Applicant's claim for acquisition of title by adverse possession over the BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 12 of 13

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two (2) acres to be excised from L.R. No. SAMIA/BUDONGO/319 is hereby dismissed. 27. The Applicant shall bear the costs of the suit. 28. It is so ordered. Judgment dated, signed and delivered in open Court on this 22nd day of September 2026. C. MUGAMBI JUDGE 22ND SEPTEMBER 2026 BUSIA ELC LOS NO. E039 OF 2025 – JUDGMENT Page 13 of 13

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