Philip Oduor Ochieng (Suing as the legal representative of the estate of Henry Michael Ochieng Obiero, Deceased) v Hezron Kimeli Cheruiyot, The County Land Registrar, Nyando & The Attorney General

a) A declaration that Plot No. 488 was wrongly, illegally and fraudulently transferred to the 1st defendant; b) An order cancelling the registration of Plot No. 488 in the name of the 1st Defendant and restoring the ownership of the property to the deceased; c) A permanent injunction restraining the 1 st defendant whether by himself or through his agents, servants or otherwise, from trespassing on, remaining upon, wasting, constructing on, ploughing, selling, alienating or otherwise or in any way dealing or interfering with the plaintiff’s use and enjoyment of the parcels of land known as Title Nos. Kisumu/Fort Ternan/488, 491, 492 and 494 (suit properties); d) An order for the eviction of the 1st defendant, his servants, agents, employees and/or anybody claiming through him from the parcels of land known as Title Nos. Kisumu/Fort Ternan/488, 491, 492 and 494; e) Special damages in the sum of Kshs. 3,439,800/-; f) General damages for trespass and loss of use; g) Punitive/exemplary damages against the 2 nd and 3rd defendants; and ELC 45 OF 2020 JUDGMENT Page 2

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h) The costs of the suit. 2. The plaintiff averred that in late 2019, while the deceased was seriously sick, he received information that the agents of the 1st defendant were grazing cattle on the suit properties and had planted sugar cane on a small portion thereof; that the deceased died on 4th February 2020; that the 1st defendant, who claimed to own Plot No. 488, thereafter intensified his activities on the suit properties and proceeded to cut down precious and exotic trees on the property valued at Kshs. 3,439, 800/-; that he conducted a search on the title of Plot No. 488 from which he learnt that the 1 st defendant had acquired ownership of the property through backdated entries in the register; and that the deceased never sold the property to the 1st defendant. 3. The plaintiff averred that in 1999, the deceased and the 1 st defendant entered into an agreement under which the deceased agreed to sell to the 1 st defendant the parcels of land known as Title Nos. Kisumu/Fort Ternan/068/491, 068/492, 068/493, 068/495 and 068/497 (the sold parcels), measuring a total of 80 acres, at a consideration of Kshs. 4,400,000/-; that the 1st defendant paid the deceased Kshs. ELC 45 OF 2020 JUDGMENT Page 3

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1,300,000/-; and that the 1st defendant failed to pay the balance of the purchase price within the agreed 6 months, resulting in the agreement not being completed. 4. The plaintiff further averred that the sold parcels were different from the suit properties and that the same were never transferred to the 1st defendant by the deceased; that the 1st and the 2nd defendants fraudulently, illegally and using a corrupt scheme transferred to the 1 st defendant plot No. 488 which was never sold by the deceased to the 1 st defendant; and that as a result of the illegal transfer of Plot No. 488 to the 1st defendant, the estate of the deceased had been denied the access and use of the property and had therefore suffered loss and damage. 5. The 1st defendant filed a statement of defence and counterclaim dated 28th August 2020. The 1st defendant averred that he was the registered owner of Plot No. 488, which he acquired lawfully from the deceased after paying the full purchase price; that the plaintiff had an acrimonious relationship with the deceased and as such could not have been informed of the deceased’s activities; that by bringing the suit after the death of the deceased, the plaintiff was ELC 45 OF 2020 JUDGMENT Page 4

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acting in bad faith; that he entered into an agreement with the deceased for the purchase of the sold parcels but the parcels concerned were by further agreement reduced to three, namely: Title Nos. Kisumu/Fort Ternan/491, 492 and 494 (Plot Nos. 491, 492 and 494); that around 2001, he completed payment for Plot Nos. 491, 492 and 494, and the deceased executed instruments of transfer of the parcels of land in his favour; that he subsequently obtained consent of the Land Control Board for the transaction, but the deceased died before the transfers were registered; that Plot Nos. 491, 492 and 494 were still in the deceased’s name; that he had occupied Plot Nos. 491, 492 and 494 from the time he completed paying for the same; that he was the lawful owner of the suit properties; and that he was not involved in any acts of fraud in acquiring the suit properties. 6. In his counterclaim, the 1st defendant reiterated the contents of his defence. The 1st defendant averred that he was the lawful owner of the suit properties, and had had peaceful and uninterrupted occupation of the same for over 29 years with the consent of the deceased; that he had acquired the suit properties by adverse possession; that there had never been ELC 45 OF 2020 JUDGMENT Page 5

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any dispute over the ownership of the suit properties for the duration he had been in possession until the present suit was filed; and that the suit was brought in bad faith. 7. The 1st defendant sought judgment against the plaintiff for: a) A declaration that the 1 st defendant was the bona fide owner of the suit properties having acquired the same by prescription; b) A declaration that the 1st defendant had acquired the suit properties by adverse possession; c) A permanent injunction restraining the plaintiff by himself or through his agents or any other parties claiming through him or otherwise from interfering with the 1st defendant’s quiet enjoyment, occupation and possession of the suit properties; and d) Costs of the suit and the counterclaim. 8. The 2nd and 3rd defendants entered an appearance but did not file a defence. At the trial, the plaintiff adopted his witness statement dated 14th March 2023 as part of his evidence in chief and produced the documents attached to his list and bundle of documents dated 6 th May 2020 and the ELC 45 OF 2020 JUDGMENT Page 6

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supplementary list and bundle of documents dated 7 th February 2023 as exhibits. The plaintiff told the court that the parcels of land in dispute were Plot Nos. 488, 491, 492 and 493, of which only Plot No. 488 was registered in the name of the 1st defendant. He stated that the other parcels of land were registered in the name of the deceased. He stated that the 1st defendant acquired Plot No. 488 fraudulently; that the plot was not sold to the 1 st defendant by the deceased and that no consent of the Land Control Board was obtained for the transaction. For Plot Nos. 491, 492 and 494, he stated that the 1st defendant never paid the purchase price in full and that he only paid a deposit, but he invaded and occupied the same after the death of the deceased. The Plaintiff denied that the 1 st defendant had acquired the suit properties by adverse possession. He stated that the 1st defendant sent his agents to occupy the suit property in 2019 after the death of the deceased and that he reported the invasion to Koru Police Station. He stated that the 1st defendant’s counterclaim against him had no basis. After his testimony, the Plaintiff called three ELC 45 OF 2020 JUDGMENT Page 7

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witnesses, PW2, PW3 and PW4 who testified in support of his case. 9. The 1st defendant testified and called 8 witnesses, DW2DW9, who gave evidence in support of his defence and counterclaim. The 1st defendant, who testified as DW1, adopted his witness statement dated 1 st September 2020 as part of his evidence in chief and produced the documents attached to his list and bundle of documents dated 6 th February 2023, and a bundle of receipts said to have been issued to him by the deceased as exhibits 1 and 2 respectively. DW1 testified that the deceased sold him Plot Nos. 488, 491, 492 and 494; that the deceased was his good friend and he knew all his children; that the plaintiff was also his good friend and that the plaintiff knew that the deceased sold the suit properties to him; that the fraud alleged against him had no basis; that although the agreement of sale dated 8th February 1999 provided that it would become null and void after 6 months, he made several payments to the deceased after the lapse of the 6 months; that the agreement remained alive and did not lapse; that the deceased issued receipts to him for the payments made; ELC 45 OF 2020 JUDGMENT Page 8

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that the receipts indicated that the payments were in respect of Plot Nos. 488, 491, 492 and 494; that the deceased executed instruments of transfer in respect of Plot Nos. 491, 492 and 494 which were duly registered; that the deceased also executed applications for consent of the Land Control Board; that the deceased could not have executed the instruments of transfer and the applications for consent of the Land Control Board in his favour if there was no agreement of sale between them and the purchase price had not been received; that he was registered as the owner of Plot No. 488 on 25th June 1993, and had even leased the same to third parties; that he had occupied Plot No. 488 for 33 year; that he had been cultivating sugar cane and also herding cattle on the land; and that he had occupied Plot Nos. 491, 492 and 494 for 29 years. 10. After the close of evidence, the parties made written closing submissions. The plaintiff filed submissions dated 8 th October 2025 in which he framed six issues for determination by the court. The plaintiff submitted that he had proved that the suit properties were registered in the name of the deceased, and that even Plot No. 488, which ELC 45 OF 2020 JUDGMENT Page 9

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had purportedly been transferred to the 1 st defendant, was initially registered in the name of the deceased. The plaintiff submitted that Plot No. 488 was illegally transferred to the 1st defendant. The plaintiff submitted that the 1 st defendant did not produce any evidence of how he acquired the plot from the deceased; that neither a sale agreement, instrument of transfer nor evidence of payment of the purchase price was placed before the court. The plaintiff submitted that he had proved that the 1 st defendant acquired Plot No. 488 illegally and fraudulently. 11. As for Plot Nos. 491, 492, 493, 495 and 497, the plaintiff admitted that the deceased and the 1 st defendant had entered into an agreement dated 8th February 1999 for the sale of the plots to the 1 st defendant at a consideration of Kshs. 4,400,000/-. The plaintiff submitted that the deceased rescinded the agreement on 6 th September 2001 after the 1st defendant failed to pay the full purchase price. The plaintiff submitted that the 1st defendant paid Kshs. 1,304,870/- only out of the agreed purchase price. The plaintiff submitted that through a letter dated 14 th September 2001, the 1st defendant accepted the rescission and asked the deceased ELC 45 OF 2020 JUDGMENT Page 10

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to sell the five parcels of land to a third party and refund part of the purchase price of Kshs. 1,304,870/- that he had paid. 12. The plaintiff submitted that after the rescission of the agreement, the 1st defendant forged an agreement of sale purported to have been made between him and the deceased in 2002 and witnessed by one S.M.Onyango Advocate, who was admitted as an advocate in 2003. The plaintiff submitted that under the purported agreement of sale, the 1st defendant purported to have purchased from the deceased once again Plot Nos. 491, 492 and 494. The plaintiff submitted that the deceased's purported signatures on the instruments of transfer of these plots and the applications for consent of the Land Control Board were subjected to forensic examination by the Directorate of Criminal Investigations and found to be forgeries. The plaintiff submitted that the desperate attempt to fraudulently transfer the properties to his name was a pointer to the 1 st defendant’s knowledge that the lawful agreement he entered into with the deceased had been rescinded. 13. The plaintiff submitted that the 1 st defendant was a trespasser on the suit properties. The plaintiff submitted that ELC 45 OF 2020 JUDGMENT Page 11

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the 1st defendant, by himself and through others, had taken possession of the suit properties and was using them for his own purposes. The plaintiff submitted that in a letter to the deceased dated 14th September 2001, the 1st defendant insisted that he would remain in possession of the suit properties until the deceased refunded part of the purchase price he had paid for the properties. The plaintiff submitted that the 1st defendant’s acts of trespass on the suit properties were admitted by the 1 st defendant and the witnesses who had testified in support of his case. The plaintiff submitted that the 1st defendant had no right to enter the suit properties after the rescission of the agreement of sale. The plaintiff submitted that he was entitled to an injunction to restrain further trespass on the suit properties. 14. The plaintiff further submitted that he was entitled to special, general and exemplary damages arising from the said acts of trespass. The plaintiff prayed for an award of Kshs. 3,439,800/- as the value of the trees destroyed by the 1st defendant. The plaintiff submitted that he was also ELC 45 OF 2020 JUDGMENT Page 12

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entitled to general damages for trespass and urged the court to award him Kshs. 10,000,000/- in that regard. 15. Regarding the 1st defendant’s counterclaim, the plaintiff submitted that the purported agreement of sale made in 2002 on which the 1st defendant based his counterclaim was unenforceable on account of it being a forgery and for its enforcement being time-barred under section 7 of the Limitation of Actions Act. The plaintiff further submitted that the 1st defendant had not acquired the suit properties by adverse possession, as the deceased had resisted his occupation of the same. 16. The 1st defendant filed submissions dated 10 th November 2025 in which he framed five issues for determination. On the issue whether he acquired Plot No. 488 fraudulently and illegally, the 1st defendant submitted that he produced evidence showing that he acquired the property lawfully; and that the evidence consisted of, among others, receipts issued by the deceased for the payments received on account of the property, and a copy of the register for the property. The 1st defendant further submitted that the burden was on the plaintiff to prove that his registration as ELC 45 OF 2020 JUDGMENT Page 13

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the owner of the suit property was fraudulent, which burden he did not discharge. The 1st defendant submitted that there was no evidence that the deceased complained about his registration as the owner of Plot No. 488, which he had occupied since 1993 during his lifetime, and that the allegations of forgery against him had no basis. The 1 st defendant submitted that the standard of proof for fraud is higher than a balance of probabilities and that the plaintiff did not meet it. 17. The 1st defendant submitted that his occupation and possession of Plot No. 488 since 1993 was proved by a bundle of photographs and the extract of the register which he produced in evidence. He submitted that the photographs showed the various agricultural activities he was undertaking on the property, including trees planted over 18 years earlier. He submitted that his possession and occupation were further supported by the leases he had entered into with third parties in respect of the property. The 1 st defendant submitted that there was no basis for the cancellation of his title to Plot No. 488. ELC 45 OF 2020 JUDGMENT Page 14

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18. Regarding his claim to Plot No. 491 and Plot No. 492, the 1st defendant submitted that he produced in evidence, among others, receipts for payments made, sale agreement dated 2nd February 2002, instruments of transfer of the two properties in his favour by the deceased, copies of applications for consent of the Land Control Board and correspondence between him and the deceased in proof of his ownership of the properties. The 1 st defendant submitted that, having paid for the properties, the plaintiff held them in trust for him. The 1st defendant submitted that the deceased admitted having received payment on account of the purchase price for the two properties pursuant to the agreement of sale made in 1999. The 1 st defendant submitted that he had established his claim over the two properties. 19. Regarding the plaintiff's claim for special damages, the 1 st defendant submitted that special damages must be pleaded and strictly proved. The 1 st defendant submitted that, although pleaded, no evidence was produced to prove the 1 st defendant’s special damages claim. ELC 45 OF 2020 JUDGMENT Page 15

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20. From the pleadings, I am of the view that the following are the main issues that arise for determination in this suit: a) Whether Plot No. 488 was registered in the name of the 1st defendant unlawfully and fraudulently; b) Whether the 1st defendant is a trespasser on Plot Nos. 488, 491, 492 and 494; c) Whether the plaintiff is entitled to the reliefs sought in the plaint; d) Whether the 1st defendant is entitled to the reliefs sought against the plaintiff in the counterclaim; and e) Who is liable for the costs of the suit and the counterclaim? Whether Plot No. 488 was registered in the name of the 1st defendant unlawfully and fraudulently: 21. Plot No. 488 was registered under the Registered Land Act, Chapter 300 of the Laws of Kenya (repealed). It was a subdivision of Title No. Kisumu/Fort Ternan/233, which was owned by the deceased, Henry Michael Ochieng Obiero. The property measured 26.7 hectares (approximately 66 acres) ELC 45 OF 2020 JUDGMENT Page 16

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and was registered in the deceased's name on 15 th September 1992 as the first registered owner. According to a copy of the extract of the register of Plot No. 488 produced by the plaintiff in evidence, the deceased was issued with a title deed for the property on 2 nd December 1992 and on 25th June 1993, Plot No. 488 was registered in the name of the 1 st defendant who was issued with a title deed on the same date. 22. The extract of the register indicates that the deceased surrendered his title deed to the Land Registrar. That was the position of the records at the Land Registry as at 10 th June 2019 when the plaintiff was issued with a certified copy of the said extract of the register. The deceased died on 4 th February 2020, about 26 years after the registration of Plot No. 488 in the name of the 1 st defendant. This suit was brought on 20th July 2020, 27 years after the property was registered in the deceased's name. 23. Sections 27, 28 and 143 of the Registered Land Act provide as follows: 27. Subject to this Act- ELC 45 OF 2020 JUDGMENT Page 17

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(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease. 28. The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject – (a) to the leases, encumbrances and charges to the and other conditions and restrictions, if any, shown in the register; and (b) unless the register, to contrary such is expressed liabilities, in the rights and interests as affect the same and are declared ELC 45 OF 2020 JUDGMENT Page 18

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by section 30 not to require noting on the register: Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee. 143. (1) Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than a first registration) has been obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default. 25. The Registered Land Act was repealed by the Land Registration Act 2012. Sections 24, 25 and 26(1) of the Land Registration Act provide as follows: 24. Subject to this Act— ELC 45 OF 2020 JUDGMENT Page 19

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(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. 25. (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (a) to the encumbrances leases, charges and the to and other conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 ELC 45 OF 2020 JUDGMENT Page 20

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not to require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. 26. (1) The Certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except – (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 24. It is clear from the foregoing that the registration of a person as the proprietor of land can only be challenged and defeated if the registration was obtained through fraud, misrepresentation, ELC 45 OF 2020 illegality, procedural JUDGMENT impropriety or Page 21

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corruption. The plaintiff challenged the registration of the 1 st defendant as the proprietor of Plot No. 488 on the grounds of fraud and illegality. 25. In Black’s Law Dictionary 9th Edition at page 731 fraud is defined as: “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” 27. In the case of Railal Gordhanbhai Patel v. Lalji Makanji [1957] E.A 314, the court held that allegations of fraud must be proved to a standard higher than the balance of probabilities but less than beyond reasonable doubt. The court stated as follows at page 317: “Allegation of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof something more beyond reasonable than a mere doubt, balance of probabilities is required.” 28. The burden of proof of the allegation of fraud against the 1st defendant was on the plaintiff. This burden would not shift until the plaintiff places prima facie evidence of the alleged fraud before the court. ELC 45 OF 2020 JUDGMENT Page 22

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29. In Halsbury’s Laws of England, 4th Edition, Volume 17, at paras. 13 and 14, the authors have stated as follows: “13. The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. 14. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.” 30. The majority of the Supreme Court in Presidential Election Petition No. 1 of 2017, Raila Amolo Odinga & Another v. IEBC & 2 Others [2017] eKLR stated as follows in paragraphs 132 and 133 of the judgment on the evidential burden of proof: “[132] Though the legal and evidential burden of establishing the facts and contentions which will ELC 45 OF 2020 JUDGMENT Page 23

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support a party’s case is static and remains constant through a trial with the plaintiff, however, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced. [133] It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other an words, while the petitioner bears evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behoves the respondent to adduce evidence to prove compliance with the law…” 31. From the evidence on record, I am not satisfied that the plaintiff discharged the burden of proof of fraud. As I have mentioned earlier, this suit was brought 27 years after the registration of the 1st defendant as the owner of Plot No. 488. According to the plaintiff, the acquisition of the property was ELC 45 OF 2020 JUDGMENT Page 24

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fraudulent because the 1st defendant could not produce a copy of the agreement of sale or evidence of payment of the purchase price. I am not persuaded that a purchaser's failure to produce evidence of purchase 27 years after his registration as the owner of the land proves the registration was fraudulent. Fraud cannot be inferred. It must be proved by tangible evidence. 32. The evidence adduced by the 1st defendant that he took possession of Plot No. 488 in 1993 after purchasing it from the deceased and had used it and even leased it to third parties without any complaint until this suit was filed was not disputed by the plaintiff. There is no evidence from the numerous correspondence between the deceased and the 1 st defendant produced in court that the deceased had at any time complained about the occupation and use of Plot No. 488 by the 1st defendant. All the deceased's complaints concerned Plot Nos. 491, 492, 493, 494 and 495. Even the complaint made to the Directorate of Criminal Investigations at Muhoroni by the plaintiff concerned the offence said to have been committed “ON DIVERSE DATES BETWEEN 1999 ELC 45 OF 2020 JUDGMENT Page 25

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AND 2006”. Plot No. 488, which was acquired by the 1 st defendant in 1993, did not feature. 33. It is my finding that the plaintiff failed to prove to the required standard that the 1st defendant acquired Plot No. 488 fraudulently and illegally. 34. On whether the 1st defendant is a trespasser on Plot Nos. 488, 491, 492 and 494 which are in dispute in this suit, I have found that Plot No. 488 is lawfully owned by the 1 st defendant. The 1st defendant cannot therefore be a trespasser thereon. As concerns Plot Nos. 491, 492 and 494, it is common ground that the 1 st defendant and the deceased entered into an agreement of sale dated 8 th February 1999 under which the deceased agreed to sell to the 1 st defendant, Plot Nos. 491, 492, 493, 495 and 497 measuring a total of 80 acres (approximately 32.37 hectares) at a consideration of Kshs. 4,400,000/-. 35. It is also common ground that the 1 st defendant paid to the deceased Kshs. 1,304, 870/- in various instalments over a period of over 2 years on account of the purchase price, although the contract was to be completed within 6 months. ELC 45 OF 2020 JUDGMENT Page 26

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The 1st defendant admitted in a letter dated 14 th September 2001 that he had a balance of Kshs. 3,095,130/- to pay to the deceased for the five parcels of land. The admission was made in response to the deceased’s letter dated 6 th September 2001, in which the deceased rescinded the agreement dated 8th February 1999 and demanded that the 1st defendant remove the tree seedlings he had planted and the maize his lessees had planted on Plot Nos. 492, 493 and 495. In the letter which was produced by the plaintiff in evidence, the deceased asked the 1 st defendant to pay Kshs. 295,130/- so that he could transfer Plot No. 491 to him “and also L.Rs 489 and 494 which you have already paid for and let us have the matter closed.” 36. In his letter dated 14th September 2001, the 1st defendant refused to vacate Plot Nos. 492, 493 and 495 and to pay Kshs.Kshs. 295,130/- so that the deceased could transfer Plot No. 491 to him. As correctly submitted by the Plaintiff, the 1 st defendant accepted the rescission of the contract and demanded a refund of the sum of Kshs. 1,304,870/- paid to the deceased as part of the purchase price for the five parcels of land. There is no evidence that the plaintiff ELC 45 OF 2020 JUDGMENT Page 27

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refunded the said sum of Kshs. 1,304,870/- or that the 1 st defendant paid the balance of the purchase price of Kshs.3,095,130/-. Without payment of the balance of the purchase price for Plot Nos. 491, 493 and 495, the deceased could not have transferred them to the 1 st defendant. I agree with the plaintiff that the purported agreement of sale dated 20th February 2002, drawn and witnessed by an advocate who had not yet been admitted, and the purported transfers allegedly signed by the deceased were forgeries. 37. The 1st defendant was put in possession of Plot Nos. 491, 492 and 494 by virtue of the agreement of sale dated 8 th February 1999. Upon rescission of the said agreement, the 1st defendant had no right to continue in occupation of the said parcels of land unless he had any other lawful or reasonable excuse for doing so. In his counterclaim, the 1 st defendant sought a declaration that he had acquired the suit properties by adverse possession. The 1 st defendant entered Plot Nos. 491, 492 and 494 by permission of the deceased pursuant to the agreement of sale dated 8 th February 1999. After the rescission of the agreement and his acceptance of the rescission, the 1st defendant agreed to vacate upon ELC 45 OF 2020 JUDGMENT Page 28

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receiving a refund of Kshs. 1,304,870/-, which he had paid to the deceased. 38. He stated as follows in part in his letter dated 14 th September 2001, “In view of the above, I have instructed Mr. Rono not to relent. We are Not going to remove the gum trees and will in fact fence 491, 492, 493, 494 and 495 soon unless you refund the money paid to you. We are within our rights to develop and graze unless you refund the money.” 36. What I get from the foregoing is that the 1 st defendant remained in occupation of the suit property after the rescission of the agreement of sale, awaiting the refund of the purchase price he had paid. The 1 st defendant did not give any time within which he required the refund to be made to him. Black’s Law Dictionary, Ninth Edition defines rescission as: “A party’s unilateral unmaking of a contract, for a legally sufficient reason such as the other party’s material breach or a judgment rescinding the contract ... Rescission is generally available as a remedy or defence for a non-defaulting accompanied by restitution ELC 45 OF 2020 party of JUDGMENT any and is partial Page 29

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performance, thus restoring the parties to their precontractual positions”. 37. As mentioned earlier, there is no evidence that the deceased or his estate has refunded the 1 st defendant the sum of Kshs. 1,304,870/-. I am of the view that the rescission of the agreement dated 8 th February 1999 was not complete without the refund of the purchase price, and the 1 st defendant, who was in possession of the property, was within his right to remain in occupation until the refund was made. Having agreed to move out of Plot Nos. 491, 492 and 494 upon receiving a refund of the purchase price, the 1 st defendant’s occupation could not be said to be adverse to the deceased's proprietary interest in the properties concerned. 38. In Gabriel Mbui v. Mukindia Maranya [1993] eKLR the court stated as follows: “(3) The occupation of the land by the intruder who pleads adverse possession must be non-permissive use, ie without permission from the true owner of the land occupied. It has been held many times that acts done under licence or permitted by, or with love of, the owner do not amount to adverse possession and do not give the licensee or permitted entrant any title ELC 45 OF 2020 JUDGMENT Page 30

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under the limitation statute. If one is in possession as a result of permission given to him by the owner, or if he is in possession of the land as a licensee from the owner, he is not in adverse possession. Permissive occupation is inconsistent with adverse possession. The stranger must show how and when his possession ceased to be permissive and became adverse. The rule on permissive possession is that possession does not become adverse before the end of the period during which one is permitted to occupy the land. Accordingly, where a permissive possession or occupation accorded on the ground of charity or relationship was intended, limitation operates from the time when possession first became adverse; a licensee (whose possession is only permissive) cannot claim title only by possession was adverse to that of the licensor to his knowledge and with his acquiescence; where possession was consensual or contractual in its inception, it cannot be called “adverse”. Thus, when possession is given by the vendor in pursuance of a sale, it is by leave and licence of the vendor; it is not just taken. It does not matter how one describes the nature or the giving or taking of possession, but if the occupier did not go into possession against the will of the owner, and if the owner’s possession, will the accompanied owner thereby the occupier’s gives leave, permission, or consent to the occupier, and the ELC 45 OF 2020 JUDGMENT Page 31

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occupier is not a trespasser or anything like that. The actual possessor must have usurped the land without leave. Possession by leave and licence of the owner is not adverse possession, for then the owner who has given leave has no cause of action during the time span of his permission or licence and the limitation period does not run against him until the licence has ended. If possession has commenced and continued in accordance with any contract, express or implied, between the parties in and out of possession, to which the possession may be referred as legal and proper, it cannot be presumed adverse. So also in cases between ingredient of mortgagor unpermitted and mortgagee. occupation is The usually expressed as “hostile” possession, to emphasize that “hostility” is the very marrow of adverse possession. And to say that possession is hostile means nothing more than that it is without permission of the one legally empowered to give possession. Any kind of permissive use, as by a tenant, licensee, contract purchaser rightful in and possession, not or hostile. Any easement holder, is time adverse an possessor and owner have discussed the adverse possession, permissive agreement may have occurred, and that destroys adverse possession (Cobb v Lane [1952] 1 All E R 1199; Denning, MR, in Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and B P Ltd [1974] 3 All ER 575 at p 580; Chanan Singh, ELC 45 OF 2020 JUDGMENT Page 32

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J, Jandu v Kirpal and another (1975) EA 225 at pp 233, 234, 237; Madan, J (as he then was), in Gatimu Kinguru v Muya Gathangi, 1[1976] Kenya L R 253, at pp 257, 258)” (underlining added) 39. It is my finding that the 1st defendant has not acquired Plot Nos. 491, 492 and 494 by adverse possession. 40. On whether the 1st defendant is a trespasser on Plot Nos. 491, 492 and 494, my answer is negative. Halsbury’s Laws of England 3rd edition, Volume 38 at page 739, paragraph 1205 defines trespass as follows: “A person trespasses upon land if he wrongfully sets foot on, or rides or drives over it, or takes possession of it, or expels the person in possession or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it, or it seems if he erects or suffers to continue on his own land anything which invades the air space of another, or if he discharges water upon another’s land, or sends filth or any injurious substance which has been collected by him on his own land to another’s land.” 41. The Court of Appeal, Fourth District, Division 1, California, stated as follows in Ralphs Grocery Co. v. Victory Consultants Inc. (2017) 17Cal. App.5th 245, 261; CACI No. 2000: ELC 45 OF 2020 JUDGMENT Page 33

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“In the instant Respondents for action, Appellants have trespass. “Trespass is sued unlawful interference with possession of property.” (Staples v. Hoefke (1987)189 Cal.App. 3d 1397,1406). The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was substantial factor in causing the harm. (See CACI No. 2000).” 42. The 1st defendant occupied Plot Nos. 491, 492 and 494 pursuant to the agreement of sale that he entered into with the deceased. The deceased, having rescinded the agreement of sale, did not keep his part of the bargain by refunding the purchase price paid to him. The deceased’s estate has also failed to settle the debt. The 1 st defendant has a right to remain in possession of the three parcels of land until the deceased’s estate refunds his purchase price in the sum of Kshs.1,304,870/-. 43. On whether the plaintiff is entitled to the reliefs sought, the plaintiff has failed to prove that the 1 st defendant acquired Plot No. 488 illegally and fraudulently, and that the 1st defendant is a trespasser on Plot Nos. 491, 492 and 494. ELC 45 OF 2020 JUDGMENT Page 34

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The plaintiff is therefore not entitled to the prayers sought in his plaint. 44. On whether the 1st defendant is entitled to reliefs sought in his counterclaim, the 1st defendant has failed to prove that he has acquired Plot Nos. 491, 492 and 494 by adverse possession. He is therefore not entitled to a declaration to that effect. The 1st respondent has, however, established that he is the lawful owner of Plot No. 488 and that he has a right to be in possession of Plot Nos. 491, 492 and 494, until he receives a refund of the purchase price he paid to the deceased. The rights established by the 1 st defendant deserve protection by this court through the injunctive relief sought in the counterclaim. 45. In conclusion, I hereby make the following orders; (a) The plaintiff’s suit is dismissed save as stated in (b)(ii) hereunder. (b) Judgment is entered for the 1 st defendant against the plaintiff for: (i) A permanent injunction restraining the plaintiff by himself or through his agents or any persons claiming under him or otherwise from interfering with the 1 st defendant’s ELC 45 OF 2020 quiet enjoyment, JUDGMENT occupation and Page 35

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possession of all that parcel of land known as Title No. Kisumu/Fort Ternan/488. (ii) An injunction restraining the plaintiff by himself or through his agents or any persons claiming under him or otherwise defendant’s from quiet interfering enjoyment, with the occupation 1 st and possession of all that parcels of land known as Title No. Kisumu/Fort Ternan/491, Title No. Kisumu/Fort Ternan/492 and Title No. Kisumu/Fort Ternan/494, until the plaintiff refunds the purchase price in the sum of Kshs.1,304,870/- to the 1st defendant, after which the 1st defendant shall vacate and hand over possession of the properties to the plaintiff. (c) Each party shall bear his costs of the suit and the counterclaim. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this 28th day of September 2026 E.K.WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Video Platform in the presence of: ELC 45 OF 2020 JUDGMENT Page 36

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Ms. Odhong h/b for Onyango Charles for the Plaintiff Mr. Paul Odhiambo for the 1st Defendant N/A for the 2nd and 3rd Defendant Joanne Omondi; Court Assistant ELC 45 OF 2020 JUDGMENT Page 37

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