Omboga

4. It is her contention that the purchaser took occupation of the purchased portion on 18th February 1980. At this time, the Vendor, Joseph Ongeri Nyabayo did not have a certicate of title over his land. As such, the purchaser was not given a certicate of title over the portion of land he had purchased. 5. The Plainti pleads that the vendor acquired title over the suit land on 06th January 2011. Thereafter, the suit land was subdivided into parcels numbers Wanjare/Bomariba/3453, 3454, 3455, and 3456. These parcels are registered in the names of the Defendants herein. However, from the subdivision, there was no provision for the 0.39 Ha purchased by Christopher Omboga Omuria in 1981. 6. The Plainti avers that after she got married to Christopher Omboga Omuria in 1980, she joined him on the suit land and they have been living on and utilizing the purchased 0.39 Ha for 44 years without interference from the Defendants. That it is only after the death of Joseph Ongeri Nyabayo in 2015 that the Defendants started threatening to evict the Plainti and her family from the suit land. In culmination of the threats, on 06th June, 2024, the Defendants entered the Plainti’s portion of the land and erected a barbed wire fence curving o a portion of the land. 7. The Plainti avers that for 44 years, she has been in open, peaceful, and continuous occupation and possession of the purchased portion of land. By operation of the Limitation of Action Act Cap. 22 Laws of Kenya, she therefore seeks to be declared the proprietor of a portion of land measuring approximately 0.39 Ha out of properties Land Reference Numbers Wanjare/Bomariba/3453, 3454, 3455, and 3456. 8. The Defendants responded to the Originating Summons through a replying adavit sworn by the 2nd Defendant on 19th September, 2024. With the conversion of the Summons to a Plaint, the replying adavit was adopted as the Defendants’ Statement of Defence. 9. The Defendants attest that they are the lawfully registered proprietors of land parcels numbers Wanjare/Bomariba/3453 and 3454. They deny the Plainti’s claims and assert that the agreement for sale of land produced by the Plainti as evidence of purchase of a portion of the Suit Land is forged. They contend that the agreement does not identify the land to which it relates. 10. The Defendants plead that if at all Christopher Omboga Omuria purchased any land, he ought to have been given a certicate of title within six months from the date of purchase. The Defendants also aver that the Plainti’s case is res judicata as a suit on the same subject matter was heard and determined vide ELC Suit No. 406 of 2015. Furthermore, the Plainti’s children were convicted in Kisii Criminal Case No. E807 of 2024 on a plea of guilty after trespassing onto land parcel number Wanjare/Bomariba/3453. The Evidence 11. Florence Nyaboke Omboga (PW-1) testied that she has authority to sue on behalf of the estate of her husband, Christopher Omboga Omuria. She produced a Grant ad Litem as P-Exhibit No. 1. She stated that her husband had led a suit vide, Kisii ELC No. 406 of 2015, in which he sued Omuria Ongeri, Evans Ongeri, and Margaret Ongeri. However, her husband passed away in 2018 before the matter could be heard to completion. Consequently, Kisii ELC No. 406 of 2015 was dismissed for want of prosecution, and the Plainti led the present suit. 12. PW-1 proceeded in evidence that, in 1980, on a date she cannot remember, her husband entered into an agreement to purchase a portion of land parcel number Wanjare/Bomariba/1527 from his elder brother, Joseph Nyabayo Ongeri. The agreement was written in Ekegusii, and she has provided an English translation. The original agreement and the translation were both produced as P-Exhibit No. 2. She also produced an ocial search for land parcel number 1527 as P-Exhibit No. 3. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 2

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13. PW-1 testied that she is claiming only against the defendants, who own parcel numbers 3453 and 3454. She did not wish to claim against Joseph Nyabayo Ongeri, who is deceased. She produced the ocial searches for parcels 3453 and 3454 as P-Exhibits 4(a) and 4(b). 14. PW-1 continued her testimony, stating that she has been living on and cultivating crops on the suit land since 1980, and that only in July 2024 did the Defendants demolish her house and cut down all her crops on the land. She further testied that she called a surveyor to ascertain the dimensions of her land. According to the survey, her land measures 0.39 Ha. 15. On cross-examination by learned Counsel Mr. Sagwe, PW-1 claried that she got married in 1979. She also stated that she was present during the preparation of the sale agreement though she was not included as a witness because women were not allowed to sign agreements. 16. She further stated that the vendor was willing to give her husband title to the land but the vendor’s sons refused. By the time title to parcel number 1527 was being processed in 2011, the vendor had already passed away. PW-1 could not conrm whether parcel number 1527 was a subdivision of parcel number 899. She could only tell that it was a portion of 1527 purchased by her husband in 1980. She armed to court that that the parcel number of the land sold was not inserted in the sale agreement. 17. Asked why the witnesses did not sign the agreement for sale or place a thumbprint, she respondent that at that time, people did not understand the value of signing. PW-1 also did not know the person who prepared the sale agreement. She also could not tell the parcel number of the lower side of the land, on which she had been occupying. 18. She testied that from June 2024, she no longer resides on the land and it is now being cultivated by the vendor’s family including his wife and son. 19. In re-examination, PW-1 testied that Joseph Nyabayo Ongeri showed her husband the land that was being sold and they settled there. She also stated that she reported the destruction of her house to Gesonso Police Station. Evans, Naftali, Omuria, and Margaret were arrested but they were not charged. They also threatened to kill her if they saw her on the land. 20. Peter Marando Mokua (PW-2) testied that he witnessed the signing of the sale agreement between Christopher Omboga Omuria and Joseph Nyabayo Ongeri. He conrmed that he signed the agreement as a witness. 21. On the portion of land that was sold, PW-2 testied that it is the portion of land on the lower side of the road. The vendor remained on the upper side of the road, and upon his demise, he was buried on that upper side. PW-2 stated further that Christopher Omboga Omuria was given possession of the land. He stated that Christopher even planted sugarcane on the land and there has never been an issue regarding the land when the two brothers were alive. 22. In cross-examination, PW-2 could not point to his signature on the agreement for sale. He further stated that as witnesses, they were not told the parcel number of the land that was being sold. They were also not shown the title deed to the land. 23. Asked by the Court if Christopher Omboga Omuria was buried on the disputed land, PW-2 responded that Christopher was buried at his home, which is on another side of the disputed land. It is not the same as the land in dispute. 24. Peter Mogoi Okerosi (PW-3) testied that he is a surveyor with over 20 years experience. He works under the rm of Opiyo and Associates where he is an assistant to Mr. Patrick Opiyo. It was his testimony that he was engaged by the Plainti to conduct a survey on L.R. number Kisii/Wanjare/ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 3

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Bomariba/1527. He visited the land and took measurements and established it measures 0.39 Ha. He prepared a report containing his ndings, which he produced and sketch map, as P-Exhibit 5(a) and 5(b), respectively. 25. PW-3 states that when he conducted a search, he discovered that the land 1527 had already been subdivided into parcel numbers 3453-3456 registered in the names of the Defendants and Joseph Nyabayo Ongeri. Even though the Plainti was in occupation of the land, she had no share. In crossexamination, PW-3 stated that the Plainti did not show him title to the property. She only had a sale agreement as evidence of purchase of the land from the registered owner. In addition, there were no subdivisions on the ground. He discovered only when he conducted a search that the land had been subdivided. 26. In re-examination, PW-3 conrmed that the parcel number 1527 (the part claimed by the Plainti) measures approximately 0.39 Ha. He also conrmed that there was no house on this portion of the land. This marked the close of the Plainti’s case. 27. The 1st Defendant, Evans Nyambani Arori (DW-1), testied that he purchased land parcel number 3453 from Joseph Nyabayo Ongeri. After completing all the requisite steps for the transfer of the land, he was granted title to it in 2015 and has since occupied it. He adopted his written witness statement and produced his documents led on 18th September 2024 as D-Exhibits 1-8. 28. In cross-examination, DW-1 stated that he purchased the land from Joseph Ongeri, but when shown the agreement for sale, he conrmed that the agreement was between him and Margaret Kwamboka Ongeri. The sale between DW-1 and Margaret was entered into on 27th August, 2015 during which time the registered proprietor of the land, Joseph Nyabayo Ongeri, was said to be very sick. 29. The 1st Defendant testied that he paid the purchase price of K.Shs. 987,000/- to Margaret Kwamboka Ongeri. He also stated that Margaret Kwamboka did not disclose to him that her husband had sold the impugned land to Christopher Omboga. DW-1 denied that he threatened the Plainti, denied invading her land in June 2024, and also denied cutting down any of her trees. He also maintained he was unaware that the Plainti had been residing on the land since 1980. 30. During further cross-examination, DW-1 admitted that he did not produce copies of the Land Control Board Consent to transfer or the duly executed transfer form as evidence of the transfer of the land to himself. He produced the sale agreement between him and Margaret Kwamboka Ongeri as D-Exhibit 9. 31. In re-examination, DW-1 testied that he has paid the purchase price for the land in full. He also stated that before purchase, he conducted a search and found that Joseph Nyabayo Ongeri was the registered proprietor of land parcel number 1527. He further claried that he engaged a surveyor to process the title for parcel number 3453. 32. Margaret Kwamboka, testifying as DW2, stated that she is the wife of Joseph Nyabayo Ongeri. She stated that Joseph Nyabayo passed away in 2016. Before his demise, he had negotiated with the 2nd Defendant terms for the sale of a portion of land parcel number 1527. She stated that her husband asked her to receive the purchase price from the 2nd Defendant. 33. DW-2 proceeds in her testimony that together with her three sons, they were given their own individual portions of land by Joseph Nyabayo Ongeri before his demise. However, she testied that she was unaware that Christopher Omboga had purchased a portion of their land. She asserted that the Plainti and her husband did not live on her land. She maintained that she has never seen any agreement or that the Plainti and her husband have paid any money pursuant to a purchase of land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 4

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34. In cross-examination, DW-2 testied that the Plainti has a portion of land next to DW-2’s family land, although she could not tell the parcel number of the Plainti’s land. She also stated that it was her husband who asked her to sign the agreement for the sale of land to the 1st Defendant. 35. Further, she testied that the Plainti did not have any house on the impugned land. According to her, Joseph Nyabayo Ongeri had put up the structures on the land. In 2024, the structures were so old that they chose to demolish them. DW-2 asserted that her husband owned the trees on the land. They cut the trees only to plant food crops. Finally, she denied evicting the Plainti from the land. Submissions 36. At the close of the hearing, the parties were invited to le written submissions. On behalf of the Plainti, Learned Counsel Mr. Bigogo led written submissions dated 14th May, 2026. Counsel submits that the Plainti has approached the Court under Section 38 of the Limitation of Actions Act, Cap. 22 Laws of Kenya, which allows a person who claims entitlement to land by adverse possession to apply to the Court for an order that they be registered as proprietor of the said land. The Plainti’s claim is further founded on Section 7 of the Limitation of Actions Act, Cap. 22, which sets a 12-year time limit on suits for recovery of land. 37. He also submits that the Plainti and her late husband took possession of a portion of land parcel number 1527, measuring approximately 0.39 Ha, on 18th February, 1980, pursuant to a sale agreement with Joseph Nyabayo Ongeri of the same date. Counsel relied on the holding in Mbugua Njuguna v Elijah Wanyoike and Another [2004] eKLR that time starts to run when the claimant is put in possession. It is his submission that time started running in this case on 18th February 1980. 38. With regard to the defence and DW-2’s contention that the sale agreement of 18th February 1980 is invalid, learned Counsel, Mr. Bigogo, relying on the holding in the same case of Mbugua Njuguna v Elijah Wanyoike and Another [2004] eKLR, submitted that the validity of the agreement is irrelevant to a determination of adverse possession. He argues that the Plainti is not claiming land under the sale agreement, but is using it to prove that she was put in possession of the claimed portion. 39. Counsel submits that by the time the Defendants asserted ownership of the Plainti’s portion of parcel number 1527 on 6th June, 2024, more than 12 years had elapsed. Finally, Counsel submits that the Plainti has been in possession of a surveyed and distinct 0.39 Ha of the initial parcel number 1527, which portion now falls in subdivision numbers 3453 and 3454. He urges the Court to nd that the Plainti has proved her case on a balance of probabilities. 40. Learned Counsel Mr. Sagwe led written submissions dated 30th June, 2026 on behalf of the Defendants. He submits that a suit similar to the present one, between the Plainti’s late husband and the Defendant and her family, was dismissed by the Court. He therefore argues that the present claim is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act, Cap. 21 Laws of Kenya. 41. Mr. Sagwe also submitted that the Plainti did not establish the existence of a valid and enforceable agreement for sale between Joseph Nyabayo Ongeri and Christopher Omboga Omuria. He argued that the agreement produced by the Plaintis is unenforceable for the following reasons: it does not contain the parcel number or the size of the land sold, it lacks essential terms for a valid and enforceable contract, and it is not signed by the alleged purchaser. 42. Counsel also submits that there are discrepancies between the agreement signed in 1980 and the translation. He notes that the agreement was signed by one Joser Ongeri not Joseph Ongeri Nyabayo. He also notes that the translation indicates that the Plainti’s late husband paid K.Shs. 2000/- while https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 5

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the actual agreement shows that he paid K.Shs. 200/-. For these reasons, learned Counsel Mr Sagwe submits that the agreement is not enforceable and prays that the Plainti’s suit is dismissed with costs to the Defendants. Issues For Determination 43. Having considered the parties’ pleadings, evidence adduced and submissions rendered, the following issues are framed for determination: i. Whether the Plainti’s suit is res judicata. ii. Whether the validity of the sale agreement produced by the Plainti aected the merit of her claim iii. Whether the Plainti has proved her case. iv. Who is to bear the costs of this suit. Whether this suit is res judicata 44. The Defendants plead that the Plainti’s suit is res judicata Kisii High Court O.S. No. 406 of 2015Christopher Omboga Omuria v Omuria Ongeri, Evans Ongeri, and Margret Ongeri. The Defendants produced, as part of their evidence, an Order of the Court in the matter dated 24th April, 2023, which states that the suit was dismissed for non-attendance. 45. It is evident from the copies of the ORDERS produced that an application was led in that case, but with Christopher’s Advocate not present, the application was likewise dismissed for want of prosecution. During the hearing, the Plainti testied that Christopher Omboga Omuria died in 2018, before O.S. No. 406 of 2015 was concluded. Christopher was substituted by his son, Josphat Mabeya Omboga, but Josphat did not testify in the case. She conrmed that the case was dismissed for want of prosecution on the ground that they were not notied to appear in Court. 46. Section 7 of the Civil Procedure Act, Cap. 21 provides as follows: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court.” 47. The Supreme Court in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) concisely outlined at paragraph 59 the elements necessary for res judicata to be successfully raised in a civil case as follows: “ For res judicata to be invoked in a civil matter the following elements must be demonstrated: a) There is a former judgment or order which was nal; b) The judgment or order was on merit; c)The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 6

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d) 48. There must be between the rst and the second action identical parties, subject matter and cause of action.” The Defendants have produced an Order dismissing Kisii High Court O.S. No. 406 of 2015 for want of prosecution. Without delving into all the elements necessary for res judicata to stand, element (b) above requires that the rst judgment or order was made on the merits. This is because res judicata operates where issues between the parties are properly settled. In the earlier suit, Kisii High Court O.S. No. 406 of 2015 was not concluded on the merits but was dismissed for non-attendance. Hence, the present suit cannot be said to be res judicata. Whether the plainti has proved her case 49. It is an established evidentiary principle of our judicial system that he who asserts must prove- Section 107 of the Evidence Act Cap. 80 Laws of Kenya. It is also trite that the proper standard of proof in civil cases is “balance of probabilities”. (Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] KESC 66 (KLR)). Nonetheless, with regard to proof of claims based on adverse possession, the Court of Appeal in Kariuki (Legal Representative of Eustace Karuri Githenya) v Joreth Limited & 2 Others [2024] KECA 420 (KLR) held at paragraph 24 that: “ The burden of proof is placed on the person alleging that he is entitled to the land by adverse possession. Owing to the nature and extent of orders for adverse possession, to wit, extinction of the right to property, the burden lies squarely on the appellant to demonstrate by clear and cogent evidence that he has met the requirements for grant of an order of adverse possession.” 50. The Plainti asserts that by reason of open, continuous, and uninterrupted possession and occupation of a portion of land parcel number Wanjare/Bomariba/1527 measuring 0.39ha for more than 12 years, she has become entitled to the said portion. 51. Section 7 of the Limitation of Actions Act, Cap. 22 Laws of Kenya provides as follows: “ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it rst accrued to some person through whom he claims, to that person.” 52. Section 13(1) of the Act states that: “ A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10 , 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.” 53. The combined eect of Sections 7 and 13 of the Limitations of Actions Act is to extinguish a proprietor’s title to land in favour of an adverse possessor. If the adverse possessor approaches the Court under Section 38(1) of the Act, it may order that the adverse possessor be registered as the proprietor of the land so claimed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 7

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54. The Court of Appeal in Mabwa v Angelei & 3 Others [2025] KECA 1037 (KLR), cited with approval the holding of the Court in Wambugu v Njuguna (1983) KLR 171, in which guiding principles on adverse possession were set as follows: “ 1. The general principle is that until the contrary is proved possession in law follows the right to possess. 2. In order to acquire by the statute of limitation 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 are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it. 3. ….. 4. …. 5 ….. 6 …. 7. Where the claimant is a purchaser under a contract of sale of land, it would be unfair to allow time to rum in favour of the purchaser pending completion when it is clear that he was only allowed to continue to stay because of the pending purchase because had it not been for the pending purchase the vendors would have evicted him. Possession can become adverse only once the contract is repudiated. 8. Where a claimant pleads the right to land under an agreement and in the alternative seeks an order based on subsequent adverse possession, the rule is the claimant’s possession as deemed to have become adverse to that of the owner after the payment of the last instalment of the purchase price. The claimant will succeed under adverse possession upon occupation of at least 12 years after such payment.” 55. The Plainti has produced an agreement for sale of land dated 18th February, 1980. Under this agreement, Christopher Omuria purchased an unspecied parcel of land from Joseph Ongeri. The Plainti argues that her husband and his family took possession of a portion of parcel number 1527 by virtue of this agreement. 56. On the other hand, the Defendants contest the validity of this agreement on the ground that it is not signed by the purchaser, it does not identify the exact property subject of the sale, and it lacks key elements of an agreement for sale of land. Furthermore, the Defendants argue the witnesses did not sign the agreement. The Defendant was probably guided in this submission by Section 3(1) of the Law of Contracts Act Cap. 23 Laws of Kenya, which requires that all contracts for the disposition of interests in land should be in writing, signed by the parties, and the signatures of the parties attested. 57. However, Section 3(3) of the Law of Contracts Act was inserted to the Act by the Statute Law (Miscellaneous Amendments) Act No. 21 of 1990. Section 3(7) of the Act provides that Section 3(3) shall not apply to any agreement entered into before the commencement of the section. Accordingly, the listed witnesses need not have signed the agreement made in 1980. In any event, it is possible that the parties had an enforceable unwritten agreement for the sale of land at that time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 8

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58. PW-2 testied that he was present when the impugned agreement was made, although he could not remember who wrote it. He further testied, in a manner consistent with PW-1’s evidence, that upon the making of the said agreement, Christopher Omuria, the Plainti’s husband, was shown the portion of land that was the subject of the sale. Christopher Omuria and his family therefore took possession of the portion falling on the lower side of the road. He conrmed that they have been planting crops, including sugar cane. 59. Accordingly, to the extent that the Plainti is seeking to demonstrate that on the basis of that agreement, Joseph Nyabayo Ongeri allowed the Plainti’s husband and his family entry upon and occupation of the claimed portion of land, she is successful. The Plainti has suciently proved that they took occupation of the purchased portion whether the title was registered as 1527 or otherwise as from 18th February 1980. 60. When did the Plainti’s possession become adverse to Joseph Nyabayo’s proprietorship of the property? Among the principles enunciated by the Court in Wambugu v Njuguna (supra) was that where a person is claiming adverse possession on the basis of an agreement for sale, possession becomes adverse to the registered proprietor upon payment of the last instalment of the purchase price. 61. The impugned agreement of 1980 states that of 28th August, 1982 “Omboga Omuria has paid Joseph Ongeri the nal payment, very nal and full payment of the of sh. 1000/=”. The agreement is not signed by the purchaser but the vendor, the recipient of the money, signed it. Taking into account that Section 3(3) of the Law of Contracts Act was not in force at the time, the Court is prepared to accept that Joseph Ongeri received full payment of the purchase price as stated in the agreement, despite the inconsistencies highlighted by the Defendants. 62. In further answer to the alleged inconsistencies pointed out by the defence, this court cites the Court of Appeal in Samuel Miki Waweru v Jane Njeri Richu [2007] KECA 465 (KLR), held in respect of transactions over controlled land that: “ In our view, where a purchaser or lessee of land in a controlled transaction is permitted to be in possession of the land by the vendor, or lessor pending completion and the transaction thereafter becomes void under Section 6 (1) of the Land Control Act for lack of consent of the Land Control Board such permission is terminated by the operation of the law and the continued possession, if not illegal, becomes adverse from the time the transaction becomes void”. 63. Section 8 of Land Control Act Cap. 302 Laws of Kenya requires parties to a controlled transaction to apply for the consent of the Land Control Board within six months of the making of an agreement relating to a controlled transaction. Section 6(1) of the Act stipulates that the sale of agricultural land within a land control area is void if the consent or the Board is not procured. 64. While the parties did not address the Court on whether the consent of the Land Control Board was necessary in the transaction, DW-1 testied that he procured consent from the Land Control Board when he bought a portion of 1527; thus, the Court will take that parcel number 1527 was agricultural land for which the consent of the Board was necessary. From the decision of the Court of Appeal in Samuel Miki Waweru v Jane Njeri Richu (Supra), the parties had at least six months from the date of payment of the last instalment to procure the consent of the Land Control Board for transfer of the property. 65. From the testimony of PW-1, no further action was taken by the parties regarding the transfer of the land to Christopher Omuria until Christopher instituted O.S. No. 406 of 2015. On this basis, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 9

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the Plainti’s occupation of a portion of parcel number 1527 became adverse to Joseph Nyabayo’s proprietorship of the land on 28th January 1983, on the lapse of six months within which the parties were to procure the consent of the Land Control Board. 66. The Court is further satised that such occupation of the Suit Land must have been with the actual or constructive knowledge of Joseph Nyabayo, since he is the one who permitted the Plainti and her husband to occupy his land, and the occupation was in close proximity to his home. 67. Nevertheless, adverse possession is meant to extinguish title and the Plainti must demonstrate that there was a registered proprietor against whom her occupation of land was adverse. On this aspect, the Court of Appeal in Titus Kigoro Munyi v Peter Mburu Kimani [2015] KECA 952 (KLR), stated as follows: “ 23. As regards the Respondent, when the appellant entered into occupation of the suit property in the year 1970 or when the alleged sale agreement with PW1 was entered into, the respondent was not the registered proprietor of the suit property until 1978. In the case of Francis Gitonga Macharia – v- Muiruri Waithaka, - Civil Appeal No. 110 of 1997 this Court stated that the limitation period for purposes of adverse possession only starts running after registration of the land in the name of the respondent. It follows that in the instant case; time for adverse possession could not run against the respondent prior to the year 1978 as he had no proprietary interest in the suit property. Time for adversity cannot run against a person who has no interest in the property.” 68. There is no evidence to show whether there was another registered proprietor of the suit land from 1980 to 2011 other than Joseph Ongeri Nyabayo-deceased. The question of whether the seller informed his wife (Dw-2) was immaterial to occupation by the Plainti’s husband and her family. Although DW-1 denies that the Plainti’s husband did not have any structure on the suit portion, she speaks to demolishing a house on this disputed part in 2024 for being old. Yet she does not contradict PW-2’s evidence that her home was on the upper side of the land. 69. The Plainti asserts that she has had exclusive continuous occupation of the land for more than 40 years. She testied that she has been cultivating the land and planting crops thereon since 1980 to July 2024 when the Defendants demolished her house and cut down all her crops. PW-3 testied that when he visited the land, he noted that the portion of land occupied by the Plainti was fenced with fully grown trees such as eucalyptus and the Plainti had planted maize and nappier grass. 70. DW-2 testied the trees on the land belonged to her late husband and the house on the land had also been put up by her husband. However, in 2024, the houses had become so old that they decided to demolish them. At the same time, they removed the trees so that they could plant food crops. 71. Its too much of a coincidence that at the same time when the Plainti was complaining of her crops, trees, and house on the impugned land being destroyed, the Defendants found it necessary to demolish allegedly old house and to cut down trees to plant cash crops. To the Court, it can only be that the Defendants cut down the Plainti’s trees and demolished the Plainti’s house. 72. On the foregoing, the Court nds that the Plainti has established on a balance of probabilities that she and her husband were exercising ownership rights by fencing the property and cultivating the land, to the exclusion of the registered proprietor. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 10

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73. The Plainti has a duty to establish with exactitude the dimensions of the land she is claiming, particularly in a case such as this where the Plainti is claiming a portion of a larger property. Kuloba J. in Mbui v Maranya [1993] KEHC 161 (KLR) expressed himself at paragraph 33 as follows: “ The land, or portion of the land, adversely possessed must be a denitely identied, dened or at least an identiable portion, with a clear boundary or identication. For this purpose, that which can be ascertained is certain; that which is denitive is positive. It must at least be so plotted that if not certain it can be made certain. The absence of a plot or title number need not present any diculty; nor should it be a bar to establishing a claim of averse possession (Madan, J (as he then was) in Kinguru v Gathangi op cit, at p 260). On the other hand, however, the adverse occupation of a disputed portion of a large piece of land under one title, for twelve years does not, in law, constitute adverse occupation of the rest of the land to which adverse acts do not extend during the statutorily prescribed time (Harris, J, in Matheri v Kanji [1976] Kenya L R 140 at 141).” 74. To this end, PW-3 produced a survey report dated 30th July, 2024, prepared by Peter Okerosi of Opiyo & Associates Land Surveyors. PW-3 testied that he visited the Plainti’s portion. He ascertained that the portion occupied by the Plainti measures approximately 0.39 Ha, whereas parcel number 1527 measures approximately 1.0 Ha before subdivision. 75. He further noted that parcel number 1527 was subdivided into four portions; parcel number 3453 measuring approximately 0.155 Ha registered in the name of the 1st Defendant, parcel number 3454 measuring approximately 0.05 acres registered in the name of Naftal Boaz Ongeri, parcel number 3455 measuring approximately 0.015 Ha and 3456 measuring approximately 0.05 Ha both registered in the name of Joseph Ongeri Nyabayo. 76. The Plainti testied that she is claiming the land occupied by the two defendants. This is parcel number 3453 measuring approximately 0.155 Ha and parcel number 3454 measuring approximately 0.05 Ha. The area of these two parcels does not aggregate to 0.39 Ha but the Plainti stated that she is not claiming part of the portion registered in the name of Joseph Ongeri Nyabayo, because he is deceased. 77. Can the Plainti’s rights supersede the rights of the 1st Defendant who claimed to have undertaken due diligence before purchasing L.R. No 3453? The 1st Defendant adopted the defence of bona de purchaser for value without notice. In the case of Katende V Haridar & Company Limited [2008] 2 E.A.173, the Court of Appeal in Uganda held that: “ For the purposes of this appeal, it suces to describe a bona de purchaser as a person who honestly intends to purchase the property oered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona de doctrine, … (he) must prove that: (a) he holds a certicate of title; (b) he purchased the property in good faith; (c) he had no knowledge of the fraud; (d) he purchased for valuable consideration; (e) the vendors had apparent valid title; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 11

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(f) he purchased without notice of any fraud; (g) he was not party to any fraud.” 78. Did the 1st Defendant purchase the land in good faith? According to the evidence of the defence witnesses, the sale agreement for purchase of parcel 3453 was executed between DW1 and DW2. At the time of execution, it was alleged that the registered owner, Joseph Ongeri Nyabayo, was still alive. DW2 said she was given authority by her husband to sell since the husband was very sick, but neither evidence of illness nor authority to sell was produced in evidence. The 1st Defendant executing a sale agreement with no letter of authority to the person signing on the Vendor’s behalf ought to have caused worry to him. 79. Further, it is unclear who obtained LCB consent to transfer the land to the 1st Defendant. In his evidence in chief, DW1 stated that he was taken before the Land Control Board by Joseph Nyabayo, whom he also said sold the land to him. This Joseph was very sick that DW2 had to represent him during the signing of the agreement but subsequently he was able to appear before the Land Control Board? However, neither of the defence witnesses produced any letter of consent, nor payment receipts for the transfer and/or the stamp duty. 80. Additionally, on the face of the agreement, only Kshs 70,000 was paid upon execution. DW1 produced no evidence to conrm that the balance of Kshs 917,000 was paid, and therefore failed to establish that consideration was paid. Consideration is a key ingredient that a person pleading a defence of innocent purchaser for value must establish. It is my considered opinion that payment of the purchase price in full cannot be inferred by registration of the land in the name of the 1st Defendant. 81. Thus, the submissions that the titles currently held by the Defendants were lawfully obtained through subdivision and transmission by the deceased during his lifetime is not supported by any evidence. Both defendants, together with their witness, Mary Kwamboka, were aware of the possession and use of the suit portion by Christopher Omboga Omuria and his family. The sale was intended to defraud them of what they had purchased merely because the deceased had not acquired a title. 82. It is my opinion and I so hold that by the time the Defendants were purchasing the two suit titles from Joseph Nyabayo, his interest had been extinguished by operation of the law by virtue of occupation by the Plainti and her family. Hence, he or his wife (Dw2) had no land to sell to the Defendants. 83. In result, I hold that the Plainti has proved a claim against the two defendants that she has acquired rights (on behalf of her late husband Christopher Omboga Omuria) ,by way of adverse possession over a portion of L.R. No. Wanjare/Bomariba/1527, measuring 0.205ha comprised in Wanjare/ Bomariba/3453 and 3454 registered in the names of the 1st and 2nd Defendants names respectively. 84. Hence, I enter judgment in her favour and issue an order that the two titles be transferred in her name by the Defendants within 30 days hereof. In default, the Deputy Registrar of this Court to sign the requisite documents in place of the Defendants to facilitate the registration of the said parcels in the Defenfdants name. She is awarded costs of the suit payable by the 1st Defendant. JUDGMENT DATED, SIGNED AND DELIVERED AT KISII, THIS 17TH OF SEPTEMBER, 2026. A. OMOLLO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5564/eng@2026-09-17 12

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