Yunis Anyango Onyango (Suing as the Legal Representative of the Estate of Tobias Onyango Mwanja) v Joshua Ogega Nyagowa (Sued as the Legal Representative of the Estate of Janes Nyagowa Ogenga)

the occupation was purely permissive under a failed sale agreement, tainted by statutory intermeddling, and legally interrupted by subsequent acknowledgments and dealings. II. Background of the Dispute 3. The Applicant's case is that in September 2003, the Respondent’s mother (the late Anna Apiyo Nyagowa) and brother (Kendrick Ochieng Nyagowa) approached her to sell a portion of family land to raise funds for the Respondent’s university education at Egerton University. After consulting her husband, a sale was negotiated for Kshs. 105,000/=. A handwritten sale agreement was drawn up on 15th September 2003, a deposit of Kshs. 10,000/= was paid, boundaries for a 1.5-acre portion were set, and the Applicant took possession. 4. Over the years, various installments were paid, and in March 2009, the Applicant's husband refunded money to another prospective buyer (Mary Atieno Ochanda) whose transaction had stalled. A payment schedule was endorsed by the Assistant Chief of Kilusi Sub-location on 3rd November 2009. Following her husband's death in 2012, the Applicant entered into a further agreement with Kendrick Ochieng Nyagowa on 30th April 2019, paying an additional Kshs. 23,000/=, bringing total payments to complete the balance. 5. Trouble arose in December 2024 when the Respondent and Kendrick demanded that the Applicant vacate, subsequently destroying approximately 500 eucalyptus trees planted on the land. After local administrative forums ruled largely in favor of the Applicant, and after initiating citation proceedings for letters of administration, the Respondent obtained a grant in Succession Cause No. 402 of 2025 and resisted the claim. 2 | Page HOMA BAY ELC L OS E020 OF 2026 - JUDGMENT

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III. Summary of Pleadings i) The Applicant's Originating Summons (Dated 19th February 2026): Filed under Section 38(1) of the Limitation of Actions Act and Order 37 Rule 8 of the Civil Procedure Rules, 2010, seeking a declaration of adverse possession over 1.5 acres of Kabondo/Kodumo West/707, an order for transfer, an injunction protecting quiet possession, and costs. ii) The Respondent's Replying Affidavit (Dated 15th June 2026): Filed by Joshua Ogega Nyagowa as the administrator of his late father's estate. He denied executing any sale agreements, argued that dealings without a grant amounted to unlawful intermeddling under Section 45 of the Law of Succession Act, contended that the possession was permissive and contractual, pointed out a wrong parcel number reference, and counterprayed for dismissal, eviction, a permanent injunction, and costs. IV. Evidence and Testimonies i) PW1 (Yunis Anyango Onyango): Adopted her supporting affidavit and bundle of exhibits. She maintained under cross-examination that she entered the land lawfully as a purchaser in 2003 with the consent of the family, completed payments through various milestones up to 2019, and has been in continuous use. Crucially, she conceded under cross-examination: "Kendrick allowed me to be in the said property. My use of the property has been with permission from the family. I do not live on that property." ii) DW1 (Joshua Ogega Nyagowa): Adopted his replying affidavit and written statement. He testified that he never participated in or authorized the 2003 sale (noting he was a student at Egerton University), asserted that letters of administration were only issued to him recently in Succession Cause No. 402 of 2025, and maintained that the Applicant's stay was merely a permissive 3 | Page HOMA BAY ELC L OS E020 OF 2026 - JUDGMENT

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arrangement stemming from an incomplete transaction. V. Submissions by Parties i) The Applicant’s Submissions: Counsel argued that the full purchase price and survey fees were settled by 2009, giving rise to a constructive trust in favor of the purchaser, drawing support from cases like Gabriel Mbui v. Mukindia Maranya. It was submitted that the statutory 12-year period lapsed long before filing, and allowing repossession would result in unjust enrichment contrary to Article 159(2)(e) of the Constitution. ii) The Respondent’s Submissions: Counsel contended that the Applicant failed to establish the foundational criteria for adverse possession ( nec vi, nec clam, nec precario). Relying on authorities including Mtana Lewa v. Kahindi Ngala Mwagandi, Wambugu v. Njuguna, and Section 23 of the Limitation of Actions Act, counsel argued that permissive possession under a sale agreement cannot transform into adverse possession unless explicitly terminated, and that the 2019 financial transaction served as an acknowledgment of title that successfully reset the limitation clock. VI. Issues for Determination 1. Whether the Applicant's entry and occupation of Land Parcel No. Kabondo/Kodumo West/707 was adverse or permissive in nature. 2. Whether the lack of a grant of representation in 2003 renders the initial transaction void for intermeddling under Section 45 of the Law of Succession Act (Cap 160). 3. Whether the payment made in 2019 operated as an acknowledgment of title under Section 23 of the Limitation of Actions Act (Cap 22) to interrupt or reset the limitation period. 4 | Page HOMA BAY ELC L OS E020 OF 2026 - JUDGMENT

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4. Whether the Applicant has satisfied the strict legal thresholds for a declaration of title by way of adverse possession. VII. Statutory Provisions and Case Law References i) Statutes (Kenya): Sections 7, 13, 17, 23, and 38 of the Limitation of Actions Act (Cap 22); Section 45 of the Law of Succession Act (Cap 160); Article 159(2)(e) of the Constitution of Kenya, 2010; Sections 107(1), 108, and 109 of the Evidence Act (Cap 80); Section 26 of the Land Registration Act. ii) Case Law (Kenya & Regional): a) Mtana Lewa v. Kahindi Ngala Mwagandi [2015] eKLR b) Wambugu v. Njuguna [1983] KLR 172 c) Gabriel Mbui v. Mukindia Maranya [1993] eKLR d) Karitu v. Mwihike Farmers Company Limited & 3 Others [2025] KECA 1127 (KLR) e) Rono v. Rono [2005] 1 EA 363 (on unauthorized pre-grant land dealings) f) Milka Wanjiru Njeri & Another v. Martha Wanjiru & Another (Civil Appeal No. 248 of 2017) g) Atunya v. Okeny (Uganda - on the absence of animus possidendi under permissive entry) h) The Registered Trustees of Holy Spirit Sisters v. January Kamili Shayo & 136 Others (Tanzania - on consensual possession and limitation clock resets) i) Chulu v. The Attorney General (Zambia - on equitable doctrine regarding permissive holdings) VIII. Judgment and Determination The Court has carefully evaluated the pleadings, affidavit evidence, oral 5 | Page HOMA BAY ELC L OS E020 OF 2026 - JUDGMENT

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testimonies, and rival written submissions. 1. Permissive Possession versus Adverse Possession 6. The law on adverse possession is governed by Sections 7, 13, 17, and 38 of the Limitation of Actions Act, Cap. 22. As established in Kasuve v. Mwaani Investments Limited, Mtana Lewa v. Kahindi Ngala Mwagandi, and Gabriel Mbui v. Mukindia Maranya, a claimant must prove open, continuous, and exclusive possession that is hostile and adequate in continuity, publicity, and extent for 12 years. i) The Core Doctrine of Permissive Possession (Precario): Under Kenyan property law, possession that is permissive in its inception—such as entry granted pursuant to a pending land sale agreement, a family arrangement, or a license—is held nec precario (by permission). By definition, time cannot begin to run for the purposes of adverse possession while the occupation remains consensual or licensed by the legal owner or their privy. ii) Incompatibility with Hostile Intent (Animus Possidendi): For adverse possession to crystalize, the occupant must demonstrate a clear, unequivocal intent to oust the true owner and claim the land as their own against the whole world. As underscored by the Court of Appeal in Wambugu v. Njuguna [1983] KLR 172, a purchaser or licensee who enters land under a contract or family permission holds derivative title. Their occupation is subservient to the vendor's title, meaning the necessary mental element of hostility (animus possidendi) is legally absent. iii)The Rule on Contractual and Installment Failures: Where an occupation originates from a sale agreement, the possession remains permissive throughout the pendency of the contract and during any subsequent negotiations or payments of installments. Even if the agreement ultimately 6 | Page HOMA BAY ELC L OS E020 OF 2026 - JUDGMENT

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fails or collapses, the character of the possession does not automatically transform into adverse possession. It requires a formal, overt, and unequivocal repudiation or termination of the permissive arrangement, communicated clearly to the titleholder, followed by the full, uninterrupted computation of the 12-year statutory period. iv)The Effect of Acknowledgment and Continuing Engagement: Engaging in ongoing transactions, paying top-up balances (such as the Applicant's 2019 payment of Kshs. 23,000/=), or participating in family and administrative meetings to finalize a purchase operates as a direct acknowledgment of the owner's superior proprietary interest. Under Section 23 of the Limitation of Actions Act (Cap 22), such acts legally negate adversity, reaffirm the consensual nature of the holding, and reset the statutory limitation clock. As reaffirmed in Karitu v. Mwihike Farmers Company Limited & 3 Others [2025] KECA 1127 (KLR), where purchase is by installments, limitation runs only after the final payment is made upon a failed agreement. The first clear sign of hostility (December 2024) falls far short of the mandatory 12-year statutory requirement before filing in 2026. v) Regional Comparative Rationale: As established in East and Central African jurisprudence—including Atunya v. Okeny (Uganda), The Registered Trustees of Holy Spirit Sisters v. January Kamili Shayo & 136 Others (Tanzania), and Chulu v. The Attorney General (Zambia)—equity will not permit a party to approbate and reprobate by simultaneously relying on a contract or family permission to justify entry and progressive payments while selectively pleading hostile independence for the exact same timeline. Permissive entry remains shielded from adverse possession until the permissive umbrella is explicitly dismantled and replaced by open, hostile, and unchallenged defiance for the full statutory duration. 7 | Page HOMA BAY ELC L OS E020 OF 2026 - JUDGMENT

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The Applicant's case is critically undermined by her own admission under crossexamination: "Kendrick allowed me to be in the said property. My use of the property has been with permission from the family. I do not live on that property." Permissive possession and adverse possession cannot coexist. 2. The Effect of Intermeddling and Absence of a Grant i) Statutory Prohibition under Section 45 of the Law of Succession Act (Cap 160): Section 45(1) of the Law of Succession Act strictly prohibits any person from taking possession, disposing of, or otherwise intermeddling with the free property of a deceased person unless they have been issued with a valid Grant of Letters of Administration or Probate. Any transaction, agreement, or disposition undertaken in violation of this mandatory statutory command is fundamentally illegal, null, and void ab initio. ii) Nullity of Unauthorized Pre-Grant Land Dealings: In landmark appellate decisions such as Rono v. Rono [2005] 1 EA 363 and Milka Wanjiru Njeri & Another v. Martha Wanjiru & Another, the courts emphatically affirmed that beneficiaries or family members (such as a widow or son) cannot validly alienate, sell, or purport to transfer a deceased person's land before acquiring formal legal representation through a confirmed Grant. Consequently, the 2003 sale agreement executed by the late proprietor's widow and son—seven years after the registered owner's death in 1996—suffered from an incurable root defect. iii)Incompatibility with Adverse Possession Claims: While equity may under specific circumstances protect an innocent purchaser who parted with value by recognizing a constructive trust or a claim for refund against the actual intermeddlers, such defective contractual foundations cannot be converted into an anchor for adverse possession. Adverse possession requires a clean, 8 | Page HOMA BAY ELC L OS E020 OF 2026 - JUDGMENT

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independent, and hostile assertion against a recognized titleholder, whereas a claim founded on an unauthorized, void intermeddling agreement remains trapped within a permissive or contractual nexus that lacks the legal capacity to ripen into statutory ownership. 3. Evidentiary Uncertainty Regarding the Parcel Number and Extent i) The Burden of Proof and Specificity in Land Claims: Under Sections 107(1), 108, and 109 of the Evidence Act (Cap 80, Laws of Kenya), a party seeking a radical and absolute transformation of property rights—such as a declaration of title by adverse possession—bears the absolute legal and evidential burden of establishing the precise physical identity, boundaries, and extent of the land claimed. Vague, shifting, or generalized descriptions are legally fatal to proprietary claims. ii) Fatal Discrepancies in Cadastral Identity: A foundational flaw arises when documentary evidence contradicts the oral narrative. In this matter, the initial sale agreement fundamentally misdescribed the property by referencing KABONDO/KODUMO WEST/72 (a separate parcel registered to a third party), whereas the suit property is officially registered as KABONDO/KODUMO WEST/707. Such a material discrepancy shatters the chain of identity required to link the claimant's physical occupation to the specific cadastral title sought. iii)Requirement for Expert and Corroborative Technical Evidence: Establishing a portion of a larger registered parcel (in this case, 1.5 acres out of a 4.56-hectare land unit) requires independent, objective technical verification. The Applicant failed to adduce crucial expert evidence, such as a licensed surveyor's report, mutation forms, geo-referenced maps, or boundary beacons pinpointing the exact coordinates of the claimed portion. 9 | Page HOMA BAY ELC L OS E020 OF 2026 - JUDGMENT

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iv)Failure to Prove Exclusive Physical Possession and Extent: Beyond structural boundaries, an adverse possession claimant must produce credible corroborative evidence—such as comprehensive photographic records, agricultural assessments, structural footprints, or neutral neighbor testimonies —to prove open, continuous, and exclusive control over the specific acreage. Bare assertions and conflicting testimonies are legally insufficient to displace a registered proprietor's absolute indefeasibility of title under Section 26 of the Land Registration Act. IX. Final Orders. Guided by the principles of law and the weight of the evidence presented: 1. The Applicant has failed to establish, on a balance of probabilities, that her occupation was hostile and adverse rather than permissive, continuous, and free of contractual acknowledgment for the mandatory statutory period of twelve years. 2. The Applicant’s Originating Summons dated 19th February 2026 is dismissed in its entirety. 3. The Respondent’s counter-prayers seeking a formal declaration that the sale agreements are null and void ab initio, an order of eviction, and a permanent injunction are declined, as they lacked a formal substantive counterclaim. 4. The Respondent’s prayer for advocate-client costs is declined. 5. Taking into account the nature of the dispute, each party shall bear his/her own costs. It is so ordered. DELIVERED, DATED, AND SIGNED AT HOMA BAY THIS 25TH DAY OF SEPTEMBER, 2026. 10 | P a g e HOMA BAY ELC L OS E020 OF 2026 - JUDGMENT

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HON. JUSTICE J. WANYONYI- JUDGE, ENVIRONMENT AND LAND COURT AT HOMA BAY In the presence of; 1. Achillah for the Plaintiff 2. Omuthe for the Respondent 3. Court Assistant, Ms. Awino. 11 | P a g e HOMA BAY ELC L OS E020 OF 2026 - JUDGMENT

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