Risper Juma Adem v Plister Adundo (Sued as the administrator of the estate of Joshua Adundo Ondu, Deceased)

registered in the name of Robert Ondu’s son, Joshua Adundo Ondu, deceased, as land parcel Title No. Kisumu/Marera/2290 (suit property) on 22nd March 1974. Meanwhile, the land parcel Title No. Kisumu/Marera/1965 retained its original parcel number but was reduced to 1.2 hectares and registered in the name of Domnic Adem, whose relationship with Pius Ongoro is unclear from the record. The Plaintiff herein, Risper Juma Adem, is the widow of Domnic Adem. The Plaintiff brought this suit through an Originating Summons dated 25th May 2023, seeking a declaration that she has acquired land parcel Title No. Kisumu/Marera/2290 (suit property) by adverse possession and is the rightful owner thereof, having occupied the same openly, exclusively and continuously without interruption for over 51 years; a declaration that she is entitled to be registered as the proprietor of the suit property; and an order that the Defendant transfers the property to her, failing which it be transferred to her by the Deputy Registrar of the Court. The Originating Summons was supported by the affidavit of the Plaintiff sworn on 25 th May 2023. The Defendant opposed the Summons by a replying affidavit sworn on 28th August 2023. ELCOS E021 OF 2023 JUDGMENT Page 2

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The Originating Summons was heard by way of viva voce evidence. The Plaintiff gave evidence and called 5 witnesses to support her case. The Defendant's attorney, Philip Otiende Adundo, testified on her behalf and called 3 witnesses in her defence. The Plaintiff’s case, as outlined in her affidavit filed in support of the Originating Summons and the evidence presented at trial by her and her witnesses, PW2, PW3, PW4, PW5, and PW6, is that the Plaintiff is the widow of Domnic Adem, who married her in 1970; that since her marriage, she has been using the suit property, which was part of Land Parcel Title No. Kisumu/Marera/1965 (original parcel); that the Defendant’s father-in-law, Robert Ondu, acquired the suit property, which was derived from the original parcel, by lodging an objection to the adjudication and recording of the whole of the original parcel in the name of Pius Ongoro; that despite the transfer and registration of the property in the name of the deceased, she remained in possession and continued to use the property; that her occupation was interrupted on 3rd February 2023 when the deceased’s son entered the suit property, fenced it off from the rest of the original parcel, and built a house thereon; that since 1970, she has occupied and used the suit property as part of the original parcel; that she ELCOS E021 OF 2023 JUDGMENT Page 3

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used the land to cultivate mangoes, avocados, eucalyptus trees, maize, beans, groundnuts, bananas, and Napier grass throughout the year; and that from 1970 until 3 rd February 2023, she was the exclusive possessor of the suit property, which the deceased had never used. The Defendant’s case, as outlined in her replying affidavit and the testimonies of her witnesses, was that the deceased was the registered owner of the suit property; that the suit property was occupied by Mathews Adundo, a beneficiary of the deceased’s estate; that the deceased acquired the suit property during the land adjudication process through an objection lodged by his father, Robert Ondu; that the deceased’s family had always used the suit property as a farm prior to the filing of this suit; that the Plaintiff had never occupied or used the suit property as she claimed; that the Plaintiff was attempting to challenge the outcome of the adjudication proceedings through this suit; and that the suit was motivated by malice. After the close of evidence, the parties filed written submissions. The Plaintiff filed submissions dated 24th September 2025, in which she stated that she had established the ingredients of adverse possession ELCOS E021 OF 2023 JUDGMENT Page 4

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and urged the court to grant the orders sought in the Originating Summons. 2025. The The Defendant filed submissions dated 22 nd September Defendant submitted that the Plaintiff had not demonstrated exclusive, open and uninterrupted occupation of the suit property for at least 12 years. The Defendant further submitted that the evidence presented by the Defendant’s witnesses showed that the deceased had always been in possession of the suit property. The Defendant submitted that the Originating Summons lacked merit and urged the court to dismiss it with costs. Analysis and Determination: I have considered the pleadings, the evidence tendered, and the parties' submissions. The following, in my view, are the issues that arise for determination in the Originating Summons: whether the Plaintiff has proved her adverse possession claim in respect of the suit property; whether the Plaintiff is entitled to the reliefs sought in the Originating Summons; and who is liable for the costs of the suit. In Kimani Ruchine & Another v. Swift, Rutherford Co. Ltd. & another [1977] KLR 10 Kneller J. stated as follows at page 16 on proof of adverse possession: ELCOS E021 OF 2023 JUDGMENT Page 5

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“The Plaintiffs have to prove that they have used this land which they claim as of right, necvi, nec clam, necplecario (no force, no secrecy, no evasion) …The possession must be continuous. It must not be broken for any temporary purposes or by any endeavors to interrupt it or by any recurrent consideration.” In Wambugu v. Njuguna [1983] KLR 172 the court stated as follows: “The general principle appears to be that until the contrary is proved, possession in law follows the right to possess: Kynoch Ltd v Rowlands[1912] 1 Ch 527, 534. Lindley MR in Littledale v Liverpool College [1900] 1 Ch, 21 put it in these words: “In order to acquire by the Statute of Limitations 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...” His Lordship continued: “The same point was made by Bramwell LJ in Leigh v Jack (1879) 5 Ex D 264, 272, where he said referring to the Statute of Limitations: ‘Two things appear to be contemplated by that enactment, dispossession and discontinuance of possession.’ If this is the right way to approach the problem, the question becomes ‘Has the claimant proved that the title holder has been dispossessed, or has discontinued his possession of the land in question for the statutory period?’ rather than ‘Has the claimant proved that he (through himself or others on ELCOS E021 OF 2023 JUDGMENT Page 6

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whose possession he can rely) been in possession for the requisite number of years?’ It certainly makes it easier to understand the authorities if one adopts the first formulation.” On the question of dispossession, His Lordship said: “The next question, therefore, is what constitutes dispossession of the proprietor. Bramwell LJ in Leigh v Jack said at 273, that to defeat a title by dispossessing the former owner ‘acts must be done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it’.” In Mbira v. Gachuhi [2002] 1 EALR 137, the court stated as follows: “… a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period, must prove non permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutorily prescribed period without interruption…” In Kisumu Civil Appeal No. 27 of 2013, Samuel Kihamba v. Mary Mbaisi [2015] eKLR , the court stated that: “Strictly, for one to succeed in a claim for adverse possession, one must prove and demonstrate that he has occupied the land openly, that secrecy, and without ELCOS E021 OF 2023 license or JUDGMENT is, without force, without permission of the land Page 7

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owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land” In Pavey & another v. Njoroge & another [2011] KECA 342 (KLR), the Court of Appeal stated that: “Whereas as established by Shields, J. the appellant took possession in January 1977 it was necessary for him to have established that the possession was adequate and continuous and that there was dispossession of the registered owner. The appellants failed to do so yet this was the heart of their claim. Thus to prove title by adverse possession it was not sufficient to show that some acts of adverse possession had been committed. It was also necessary to prove that the possession claimed was adequate, in continuity, in publicity and in extent and that it was adverse to the registered owner. In law possession is a matter of fact depending on all circumstances – see R.E. Megarry & Wade – The Law of Real Property 4th Edition page 1014…Again we think in the circumstances the late Pavey having occupied the house he cannot factually be said to have dispossessed the owner of the land. This is because dispossession means that the owner has been driven out of possession by another.” It is on the foregoing principles that the Plaintiff’s claim falls for consideration. The Plaintiff had a duty to demonstrate to the court ELCOS E021 OF 2023 JUDGMENT Page 8

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that she had dispossessed the deceased of the suit property or that the deceased had discontinued his possession of the suit property for at least 12 years. It is common ground that the suit property was initially part of the original parcel, Title No. Kisumu/Marera/1965; that the original parcel was adjudicated and recorded in the name of Pius Ongoro; and that it was, following a successful objection to that adjudication by the deceased’s father, Robert Ondu, that the suit property was excised from the original parcel and registered in the name of the deceased. In her affidavit in support of the Originating Summons, the Plaintiff has stated in part that: “That since my marriage to Domnick Adem in the year 1970, I have continuously, without any interruption whatsoever, used the suit parcel herein together with parcel No. KISUMU/MARERA/1965 as one…” The Plaintiff further stated that: “That it was only on 3rd February 2023 that the Respondent’s son, Mathews Adundo came to the suit parcel with a surveyor, fenced off the suit parcel from the rest of parcel No. Kisumu/Marera/1965 and constructed a house thereon.” ELCOS E021 OF 2023 JUDGMENT Page 9

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When the court asked her to explain her claim during crossexamination, she responded that: “What I am claiming is parcel No. 2290 so that my land can remain intact. The land I am occupying is parcel 1965. Parcel No. 2290 is a portion of parcel No. 1965 and should be part of it.” From this statement, the Plaintiff did not recognise the existence of the suit property until 3rd February 2023, when the Defendant’s son arrived with a surveyor, ascertained its boundaries, and fenced it. This also means that the deceased, who was registered as the owner of the suit property on 22nd March 1974, had never been in possession of it. If indeed the deceased was never in possession of the suit property from the time it was registered in his name, it cannot be said that the Plaintiff had dispossessed him of the property. The Plaintiff could only dispossess him of the property if he possessed it in the first place. The same applies to the discontinuance of possession. The deceased could not discontinue possession of a property he never possessed in the first place. With the Plaintiff having not recognised the suit property as an independent parcel of land and considering it as part of the original parcel, and without ELCOS E021 OF 2023 JUDGMENT Page 10

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evidence of dispossession of the deceased or discontinuation by the deceased of possession of the suit property for the statutory period of 12 years, the Plaintiff’s claim as pleaded lacks a sound basis. Even if the claim is probed further, I do not see it satisfying the basic elements of an adverse possession claim. The suit property measures 0.49 hectares. It is adjacent to the original parcel owned by the Plaintiff’s family, which measures 1.2 hectares. The Plaintiff claims she had occupied and used the suit property even before it was registered in the name of the deceased. It is common ground that the Plaintiff does not live on the suit property. The Plaintiff lives on the original parcel. The Plaintiff has claimed that she planted mangoes, avocado, eucalyptus trees, maize, beans, groundnuts, bananas, and Napier grass on the property. Now that the Plaintiff treated her family’s land parcel No. 1965 (original parcel) and the suit property as one land parcel whose boundary was only demarcated by a surveyor brought by the deceased’s son, it is not clear whether the Plaintiff planted the crops and the trees with the knowledge and understanding that they were being planted on the original parcel or on the suit property. The Plaintiff claimed to have planted the seasonal crops throughout the year. There was no evidence as to ELCOS E021 OF 2023 JUDGMENT Page 11

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when the eucalyptus trees, avocados, mangoes and bananas were planted on the suit property. The Plaintiff’s witnesses, in my view, did not add any weight to her testimony or her case in general. PW2, who testified in support of the Plaintiff’s claim that she had occupied the suit property from the 1970s, told the court in cross-examination that he did not even know the parcel number for the land owned by the Plaintiff. He stated that the suit property was owned by the Plaintiff and that the same was taken away from her unfairly. The evidence of this witness lends credence contention to the Defendant’s that the Plaintiff is challenging the decision of the adjudication committee in the objection proceedings through this suit. PW3, who also supported the Plaintiff’s case, testified that the deceased never took possession of the suit property from the Plaintiff’s family and that the Plaintiff had used the land all along. PW3, who was the Plaintiff’s brother-in-law, told the court in cross-examination that he did not know how the deceased was registered as the owner of the suit property and when he was so registered. Patrick Opiyo Adero (PW5), a licensed surveyor who was engaged by the Plaintiff to survey what he referred to as “a piece of land” occupied by the Plaintiff at Marera in Kisumu, testified ELCOS E021 OF 2023 JUDGMENT Page 12

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that the original parcel and the suit property were adjacent to each other and that on the ground, they were being used as one parcel of land which was known as parcel No. 1965. He stated that he found the boundaries of the two parcels intact and that there was no encroachment. He stated that the information regarding the Plaintiff’s occupation of the suit property was given to him by the Plaintiff. The evidence of the Defendant’s witnesses was that the original parcel and the suit property were separate, and that the suit property was always under the occupation and use of the Defendant and her family. They testified that the bananas, which were cut down when DW3 was putting up his house on the suit property, belonged to DW3; that the mango trees and the eucalyptus trees on the suit property were not planted by the Plaintiff; and that there were no avocado trees on the suit property. They further testified that the deceased and the defendant had cultivated the land, and that the property had a caretaker (DW4) who looked after it. In Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14, the authors have stated as follows on the burden of proof: “13. The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing ELCOS E021 OF 2023 JUDGMENT Page 13

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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.” In Kurshed Begum Mirza v. Jackson Kaibunga [2017] eKLR, the court stated as follows: “(16) …according to section 107 of the Evidence Act, the burden of proof in any case lies with the party who desires any court to give judgment as to any legal right or liability. It is for that party to show that the facts which he alleges his case depends upon exist. This is known as the legal burden.” In Miller v. Minister of Pensions [1947] 2 All ER 372, Lord Denning J. stated that: “Thus proof on a balance of preponderance or probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence ELCOS E021 OF 2023 to accept, JUDGMENT where both parties' Page 14

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explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” The Plaintiff had the burden of proving her case. For the reasons given above, I find the Plaintiff’s adverse possession claim over the suit property not proved. The Plaintiff is therefore not entitled to the reliefs sought in the Originating Summons. Conclusion In conclusion, the Plaintiff’s Originating Summons dated 25 th May 2023 is dismissed. Each party shall bear its own costs of the suit. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this day of September 2026 28 th E. K. WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Platform in the presence of: Mr. Kowino for the Plaintiff Mr. Anyul for the Defendant Joanne Omondi; Court Assistant ELCOS E021 OF 2023 JUDGMENT Page 15

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