John Manasseh Oliech & another v Rose Atieno Apopa & 2 others

2. The Further Amended Originating Summons is expressed to be brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 37 Rule 7 of the Civil Procedure Rules, sections 27 and 28 of the Land Registration Act, and sections 37(a) and 38(1) and (2) of the Limitation of Actions Act, Cap. 22 of the Laws of Kenya. In substance, it is a claim by the Plaintiffs to be declared entitled, by way of adverse possession, to a portion measuring approximately one (1) acre (0.4 Ha) out of Land Parcel No. KISUMU/MUHORONI/1098 (hereinafter “the suit land”). 3. The reliefs sought by the Plaintiffs, as framed in the Further Amended Originating Summons, are the following: (a) An order that the Plaintiffs together with the entire family have been in adverse possession of a portion of the suit land measuring approximately 1 acre (0.4 Ha) for a period of over 12 years; (b) An order that upon the expiry of 12 years since the Plaintiffs were in possession of the said portion, the Defendants’ rights over the land were extinguished by operation of law; JUDGMENT ELCOS E026 OF 2024 2

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(c) An order that the Defendants hold the said portion in trust for the Plaintiffs and the family; (d) An order that the said portion be transferred to the Plaintiffs and that the Plaintiffs be registered as the owners thereof; (e) An order that the Defendants execute all transfer documents and, in default, that the Deputy Registrar of this Court be empowered to execute the same, with the requirement for production of the original title deed prior to sub-division being dispensed with; (f) Costs of the suit; and such further or other relief as the Court may grant. 4. When the suit was first filed, the Defendants named on the record were George Onyango Apopa, Julius Onyango Apopa and Fredrick Apopa, sued as the administrators of the estate of Philip Defendants raised Leo Apopa (deceased). grounds of opposition Those dated 3rd December 2024 in which they asserted that they were not the current administrators of the estate. By an order made on 4th March JUDGMENT ELCOS E026 OF 2024 2025 they were struck out of the 3

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proceedings with costs, and the present Defendants, who hold the fresh grant of letters of administration issued in High Court Succession Cause No. 370 of 2006 by a ruling delivered on 10th August 2016, were substituted in their place. The Plaintiffs’ case 5. The Plaintiffs’ case is set out in the Further Amended Originating Summons, the supporting affidavit sworn jointly by the two Plaintiffs, the verifying affidavits, their witness statements and the bundle of documents filed on their behalf. 6. The Plaintiffs depose that on 29th April 1999 they purchased from the late Philip Leo Apopa a portion measuring approximately 1 acre (0.4 Ha) out of the suit land at a consideration of Kshs. 70,000/=, which sum they paid in full. They rely on an agreement for sale of land dated 29th April 1999 drawn by M/s Olago Aluoch & JUDGMENT ELCOS E026 OF 2024 4

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Company Advocates and executed between the late Philip Leo Apopa as vendor and the two Plaintiffs as purchasers. 7. They further depose that the vendor handed over to them a copy of the title deed for the suit land, which had been registered in his name on 17th October 2002; that they took occupation of the portion sold to them; that when they wished to commence construction of their home the vendor applied to the Muhoroni Land Control Board which, on 28th November 2002, granted consent to sub-divide the land; and that the sub-division could not be registered because of a protracted boundary dispute between the vendor and his neighbour. 8. It is the Plaintiffs’ case that the vendor died in 2005 before the sub-division could be registered and before transfer could be effected; that after his burial they were introduced to his sons, who were then the administrators of his estate; that they made repeated but unsuccessful efforts to have the portion transferred to them; that the Nyando Lands Registry was destroyed by fire in or about February 2023 and, on reconstruction of the register, the suit land remained registered in the name of Philip Leo JUDGMENT ELCOS E026 OF 2024 5

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Apopa; and that a search conducted in March 2024 was rejected and the file reported missing. 9. The Plaintiffs plead that they have been in actual, open, exclusive and uninterrupted occupation of the portion claimed since 1999; that they have constructed their home on it and planted crops thereon; that the Defendants have never used the portion; and that the rights of the registered proprietor and of the estate over the said portion stand extinguished by operation of law. In the alternative they plead that the Defendants hold the portion in trust for them. 10. The documents relied upon by the Plaintiffs include the agreement for sale dated 29th April 1999; a copy of the title deed for KISUMU/MUHORONI/1098 issued on 17th October 2002; the Land Control Board letter of consent dated 28th November 2002 (L.C.R. No. 834/2002); certificates of official search dated 4th March 2022 and 2nd October 2024; a copy of the reconstructed green card; a letter from the Assistant Chief, Owaga Sublocation, dated 2nd October 2024; a sketch map prepared by a licensed surveyor and dated 9th March 2022; JUDGMENT ELCOS E026 OF 2024 6

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photographs of the developments on the portion; a demand letter dated 11th October 2024; and the ruling in High Court Succession Cause No. 370 of 2006. The Defendants’ case 11. The 1st and 2nd Defendants opposed the suit by Grounds of Opposition dated 8th April 2026, in which they raised four grounds, namely: that the acquisition of an interest in land by way of sale is inconsistent with a claim founded on adverse possession; that entry onto the suit land having been permissive, the claim of adverse possession is negated; that the facts pleaded by the Plaintiffs are not borne out by the evidence on record; and that no case for the acquisition of prescriptive rights over any portion of the suit land has been made out. 12. There is also on the record a replying affidavit sworn on 10th December 2024 by Fredrick Ochieng Apopa. That affidavit was filed in answer to the Plaintiffs’ Notice of Motion dated 13th November 2024 and was sworn by a person who was subsequently struck out of these proceedings. JUDGMENT ELCOS E026 OF 2024 7

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13. The 3rd Defendant filed no response to the Further Amended Originating Summons. 14. At the hearing, neither the 1st and 2nd Defendants nor the 3rd Defendant called any evidence, each closing its case immediately upon the close of the Plaintiffs’ case. The hearing 15. The Court directed on 29th September 2025 that the Originating Summons be heard by way of viva voce evidence. The hearing proceeded before me on 29th July 2026, when the Plaintiffs called five witnesses. 16. PW1, Benson Otieno Abong’o, a farmer and the retired Assistant Chief of Owaga Sub-location, testified that he held that office from 1996 to 2016. He adopted his witness statement dated 13th December 2024 as his evidence in chief. In that statement he deposed that he was aware that the Plaintiffs bought a portion of the suit land measuring approximately 1 acre from the late Philip Leo Apopa while he was the Assistant Chief of the area; that the 1st Plaintiff put up his home on the portion he had bought; that a written agreement was executed before an JUDGMENT ELCOS E026 OF 2024 8

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advocate; that the consideration was fully paid; and that the Plaintiffs have lived on the land as their home to date. On cross-examination by Mr. Njoga, he stated that the Plaintiffs are on the land on the basis of a sale agreement and that their entry was by permission of the then registered owner. 17. PW2, John Manasseh Oliech, the 1st Plaintiff, is a retired clergyman who now practises mediation and counselling. He adopted his affidavit, witness statement and bundle of documents, and asked the Court to grant him title to the 1 acre portion of the suit land. On crossexamination by Mr. Njoga he testified that he is a purchaser; that he purchased a portion of the land; that his entry was permissive and was made with the permission of the owner; that his entry was not forcible; that the consent he obtained, dated 28th November 2002, was a consent to sub-divide; that the consent to transfer has to date not been obtained; that the parcel number 1098 appearing on the agreement for sale has been overwritten and agreement that did JUDGMENT ELCOS E026 OF 2024 the not advocate who witnessed the countersign the alteration; and, 9

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significantly, that his continued occupation has been on the basis of the sale agreement. On cross-examination by Mr. Odumbe he confirmed that he entered into the agreement dated 29th April 1999 with the late Philip Leo Apopa, who passed away in 2005, and that this was the first suit he had brought against the estate. On reexamination he reiterated that he was a purchaser, that he did not force entry, and that he paid Kshs. 70,000/= being the full agreed price. In answer to questions from the Court he stated that the sum of Kshs. 70,000/= was the full and final purchase price, that he had fulfilled all his obligations under the agreement, and that he entered the land in December 2002. 18. PW3, Ruth Ayoo Oliech, the 2nd Plaintiff, is a retired teacher who resides on the suit property. She adopted her affidavit and witness statement and testified that she and her husband are interested only in obtaining their title deed; that before filing suit they had followed up the matter with the deceased, who told them that transfer was hindered by his case with his neighbour, and thereafter with the children of the deceased, who spoke of JUDGMENT ELCOS E026 OF 2024 10

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another case concerning the land. On cross-examination by Mr. Njoga she testified that the purchase price was paid in 1999 but that the Plaintiffs settled on the land in 2002; that she has occupied the land from 2002; that the paragraph in her statement which states that she occupied the land in 1999 is false; that as at 1999 Philip Leo Apopa had not become the registered proprietor, the search and green card showing that he became registered in 2002; and that the parcel number on the agreement had been over-written and not countersigned by any party or by the witnessing advocate. On re-examination she stated that what the Plaintiffs had signed for was parcel 1105, that the surveyor raised the alarm, and that the subsequent alterations to the agreement and the receipt were never done in their presence. 19. PW4, Joseph Ochola Omolo, a retired Anglican clergyman residing at Chiga in Kisumu County, adopted his witness statement. He testified that in or about 1998 he was the vicar of Muhoroni ACK Parish and the chairman of the NCCK for the Muhoroni/Tinderet area; that he came to know the late Philip Leo Apopa in connection with the JUDGMENT ELCOS E026 OF 2024 11

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sale of land to the NCCK for the settlement of persons displaced from Thesalia Farm; and that he introduced the 1st Plaintiff, a fellow clergyman, to the late Philip Leo Apopa for the purpose of purchasing land. On crossexamination he stated that the purchase took place in 1999, that he could not remember the exact parcel number, and that he did not participate in the drafting or execution of the agreement for sale. On re-examination he confirmed that the land in question is the same place where the Plaintiffs reside. 20. PW5, Jashon Otieno Alal, the retired Senior Chief of Muhoroni Location and a farmer, adopted his witness statement. In that statement he deposed that he served as chief of the area from 1996 until his retirement in 2015; that he knows the 1st Plaintiff as a resident of his area who purchased land from the late Philip Leo Apopa; that after the 1st Plaintiff had settled and built his home on the portion of approximately 1 acre, he created a common access road to the Plaintiffs’ home in the presence of the late Philip Leo Apopa and other area residents; that he obtained a copy of the sale agreement together with the JUDGMENT ELCOS E026 OF 2024 12

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consent to sub-divide the land for the various purchasers; and that a prolonged court case between the late Philip Leo Apopa and his neighbour, one Ernest Otieno (Japala), resulted in a caution which prevented transfer of the subdivided portions to the various purchasers. The Plaintiffs’ submissions 21. The Plaintiffs filed written submissions dated 26th August 2026, drawn and filed by M/s Ben Aduol Nyanga & Company Advocates. Counsel framed the principal question for determination as being whether a purchaser who has paid the entire purchase price, entered into possession with the authority of the vendor, remained in uninterrupted occupation for over twenty years, and whose transfer was never completed by reason of the vendor’s death and the succession proceedings which followed, has acquired title by adverse possession. The submissions are organised around four issues and conclude with a response to the Grounds of Opposition. 22. By way of preliminary submission, counsel emphasised that although the Defendants entered appearance, and the 1st and 2nd Defendants filed Grounds of Opposition JUDGMENT ELCOS E026 OF 2024 13

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dated 8th April 2026, none of them called any witness, filed any witness statement or produced any document. It was submitted that grounds of opposition and submissions are not evidence and cannot displace sworn testimony, and that the Plaintiffs’ evidence accordingly stands unchallenged and uncontroverted. Reliance was placed on CMC Aviation Ltd v Cruisair Ltd (No. 1) [1978] KLR 103, Mwangi v Mambo [2025] KEHC 8438 (KLR) (citing Leo Investment Limited v Mau West Limited & another [2019] eKLR and Shaneebal Limited v County Government of Machakos [2018] eKLR), Trust Bank Limited v Paramount Universal Bank Limited & 2 others [2009] KEHC 4030 (KLR) and Daniel Toroitich arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR. Counsel further submitted that, under sections 107 and 109 of the Evidence Act, the burden of proving that the agreement for sale was invalid, that the deceased lacked capacity to sell, or that the Plaintiffs’ occupation was unlawful, lay upon the Defendants, and that having called no evidence they had wholly failed to discharge it. JUDGMENT ELCOS E026 OF 2024 14

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23. On the first issue, namely whether the Plaintiffs paid the full purchase price and thereby acquired an equitable and beneficial interest in the portion claimed, counsel submitted that the agreement for sale dated 29th April 1999 was prepared by the vendor’s own advocates, was duly executed by both parties, satisfied the requirements of section 3(3) of the Law of Contract Act, and expressly acknowledged receipt of the entire consideration of Kshs. 70,000/=. Its authenticity, the signatures appearing upon it and the receipt of the purchase price were, it was said, never challenged. It was submitted that the Plaintiffs performed every obligation imposed upon them, and that the remaining obligations of sub-division, procurement of completion documents and transfer rested exclusively upon the vendor. Counsel relied on Abdalla v Hassan & 16 others [2026] KEELC 3829 (KLR) and Ottoman Bank v Hanna [1958] EA 92 for the proposition that the delivery of a valid and registrable title is a condition precedent to completion which lies upon the vendor. 24. Counsel submitted that the objection that the parent parcel stood, at the date of the agreement, in the name of JUDGMENT ELCOS E026 OF 2024 15

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the deceased’s late second wife cannot defeat the claim. The agreement itself recited that the vendor is registered or is likely to be registered as the sole proprietor, an expectation which materialised on 17th October 2002. Thereupon, it was submitted, the vendor furnished the Plaintiffs with a copy of the title deed, procured the Land Control Board consent of 28th November 2002 authorising sub-division, and caused the parcel number in the agreement to be rectified from 1105 to 1098 through his advocates, who countersigned and stamped the correction. That conduct was said to amount to ratification and affirmation of the agreement by the vendor himself, and it was emphasised that neither the deceased nor his late wife ever objected to the sale or to the Plaintiffs’ occupation during their respective lifetimes. 25. It was further submitted that, the whole of the purchase price having been paid, equity treats the Plaintiffs as the beneficial owners while the vendor and, after him, his estate retained the bare legal title upon trust pending completion. Counsel relied on Lysaght v Edwards (1876) 2 Ch D 499, Maina & 87 others v Kagiri JUDGMENT ELCOS E026 OF 2024 16

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[2014] KECA 880 (KLR), William Muthee Muthamia v Margaret Wariara Muthamia & another [2014] eKLR and Kitilit v Kibet [2018] KECA 573 (KLR). The Defendants, it was argued, inherited only the legal estate of the deceased and can claim no better title than he held, that title remaining subject to overriding interests, including constructive trusts and rights acquired by prescription, by dint of section 28 of the Land Registration Act. 26. On the second issue, namely whether the Plaintiffs took possession and whether their occupation became adverse, counsel submitted possession in that December the Plaintiffs 2002 with entered the into vendor’s knowledge and approval; that they erected first a timber dwelling and thereafter a permanent residence; that they planted trees and crops; and that they have resided upon the portion continuously ever since. Their occupation was said to have been well known to the deceased, to neighbouring proprietors, to the area administration and to the community at large, as confirmed by PW4 and by PW5, who created the access road to the Plaintiffs’ JUDGMENT ELCOS E026 OF 2024 17

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homestead in the presence of the deceased. Reliance was placed on Ouko & another v Kageni [2025] KECA 2126 (KLR) for the proposition that construction works of that character evidence sufficient possession. 27. Counsel submitted that although the possession originated in a contract of sale, it is settled that such possession may mature into adverse possession where the transfer is not completed and the purchaser remains in uninterrupted occupation beyond the statutory period. The argument was that permission granted under a contract for sale cannot subsist indefinitely once the purchaser has fully performed and the vendor has failed or refused to complete, and that from that point the purchaser remains in possession in assertion of his own proprietary right rather than by the leave of the vendor. Reliance was placed on Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR), Public Trustee v Wanduru Ndegwa [1984] KECA 72 (KLR), Peter Mbiri Michuki v Samuel Mugo Michuki [2014] KECA 342 (KLR), Mtana Lewa v Kahindi Ngala Mwagandi [2016] KECA 544 (KLR), Okul & another v Ondieki & 3 others [2026] KECA JUDGMENT ELCOS E026 OF 2024 18

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882 (KLR) and JA Pye (Oxford) Ltd v Graham and another [2002] UKHL 30. It was submitted that by the date of the institution of this suit the Plaintiffs had been in occupation for approximately twenty-two years, well beyond the twelve years prescribed by sections 7, 13, 17 and 38 of the Limitation of Actions Act. 28. On the third interruption, repeatedly issue, counsel namely acknowledgement submitted acknowledged the that the Plaintiffs’ and deceased interest: by executing the agreement, accepting the purchase price, rectifying the parcel particulars through his advocates, delivering a copy of the title deed, procuring the Land Control Board consent, placing the Plaintiffs in possession and assuring them that transfer would follow. It was submitted that time running for the purposes of adverse possession is interrupted only where the registered proprietor effectively recovers possession, institutes proceedings asserting title, or the possessor unequivocally acknowledges the proprietor’s superior title, and that in Mwangi Githu v Livingstone Ndeete [1980] KECA 35 (KLR) the Court of Appeal held that a change of JUDGMENT ELCOS E026 OF 2024 19

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ownership, succession or transfer of title does not interrupt adverse possession, time continuing to run against successors in title. Neither the boundary dispute affecting the outer boundary of the parent parcel, nor the succession proceedings, nor the fire at the Nyando Lands Registry, it was argued, dispossessed the Plaintiffs or affected the computation of time; and the Plaintiffs’ continued requests for transfer amounted to an assertion of rights already accrued in equity rather than to an acknowledgement of any superior title in the Defendants. 29. On the fourth issue, namely relief, counsel submitted that section 38 of the Limitation of Actions Act empowers the Court to order the registration of a person who has become entitled to land by adverse possession, and that, on the authority of Ouko & another v Kageni (Supra), that provision prescribes no period within which such a claim must be instituted. It was submitted that the doctrines of constructive trust, proprietary estoppel and adverse possession all converge in the Plaintiffs’ favour; that specific performance is an appropriate remedy, land being unique and damages an inadequate compensation JUDGMENT ELCOS E026 OF 2024 20

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for a family home of more than two decades’ standing; that to refuse relief would permit the estate to retain both the purchase price and the land, and so to sanction unjust enrichment; and that, per Kitilit v Kibet (Supra), equity will not permit a statute to become an instrument of fraud. 30. Counsel finally responded to each of the four Grounds of Opposition. As to the first, that the acquisition of an interest by sale is inconsistent with a claim founded on adverse possession, it was submitted that the doctrine is concerned with the nature and duration of possession rather than with the manner in which possession commenced, and that the agreement for sale merely explains why the Plaintiffs entered the land, why they hold no title, and why title accrued to them by prescription. As to the second, that entry was permissive, it was submitted that the permission was granted for a specific purpose and came to an end when completion ought to have taken place, the vendor not being entitled at one and the same time to retain the purchase money, deliver possession, procure subdivision consent, assure the purchasers of transfer and yet maintain that they occupied by his leave. JUDGMENT ELCOS E026 OF 2024 21

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As to the third, that the pleaded facts are not borne out by the evidence, it was submitted that the Plaintiffs’ five witnesses testified consistently and were corroborated by the documents produced, and that the evidential burden thereupon shifted to the Defendants, who discharged nothing. As to the fourth, that no prescriptive rights have accrued, it was submitted that each element of the doctrine had been established, namely continuous and uninterrupted possession since 2002, open and notorious possession, exclusive possession, and animus possidendi. 31. The Plaintiffs accordingly urged the Court to declare that they have been in adverse possession of the portion measuring approximately 1 acre (0.4 Ha) for a period exceeding twelve years; that the Defendants’ rights over that portion stand extinguished by operation of law; that the Defendants hold the portion in trust for the Plaintiffs and their family; that the portion be transferred to the Plaintiffs and registered in their names; that the Defendants execute all necessary transfer documents and, in default, that the Deputy Registrar of this Court be empowered to execute the same, with the requirement for JUDGMENT ELCOS E026 OF 2024 22

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production of the original title deed prior to sub-division dispensed with; and that the costs of the suit be awarded to them. The 1st and 2nd Defendants’ submissions 32. The 1st and 2nd Defendants filed written submissions dated 10th September 2026, drawn and filed by M/s Ouma Njoga & Company Advocates. Counsel organised the submissions in three parts: an introduction reciting the pleadings and the course of the proceedings; an analysis addressing the four Grounds of Opposition seriatim; and a response to the four issues framed in the Plaintiffs’ submissions. 33. On the first ground, namely that the acquisition of an interest in land by way of sale is inconsistent with a claim founded on adverse possession, counsel submitted that the two modes of acquisition rest upon fundamentally different juridical foundations. Acquisition by sale is consensual and derivative: the purchaser’s case is that the registered proprietor agreed to dispose of an interest to him, that he furnished the agreed consideration, and that he acquired his interest pursuant to that transaction. JUDGMENT ELCOS E026 OF 2024 23

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Acquisition by adverse possession, by contrast, derives no title from the proprietor’s voluntary disposition but arises by operation of law upon possession which is adverse to him. Counsel took the Court to sections 7, 13, 17 and 38 of the Limitation of Actions Act and to the discussion of the two concepts in Gabriel Mbui v Mukindia Maranya [1993] eKLR, in Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR and in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR), the last of which described an application which combined an unproven purchaser’s interest with a claim founded on adverse possession as containing “two inconsistent interests”. Counsel readily recognises that accepted that Kenyan a purchaser may, in jurisprudence appropriate circumstances, subsequently acquire title by adverse possession. The more fundamental question, it was submitted, is whether a person who asserts that he acquired an interest in land by way of sale can, on the same juridical footing, claim that he acquired that very JUDGMENT ELCOS E026 OF 2024 24

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interest by adverse possession; and the answer contended for was that he cannot. 34. On the second ground, namely that, the Plaintiffs’ entry having been permissive, the claim of adverse possession is negated, counsel submitted that the Plaintiffs’ own case establishes the permissive character of their occupation. They produced an agreement for sale dated 29th April 1999 and a rectified agreement for sale, marked as P.Exh1, asserting that they had contracted to purchase the suit land from the late Philip Leo Apopa; PW2 testified that he purchased a portion of the land and that he was given permission by the owner to enter it; and PW1 testified that the Plaintiffs are on the land on the basis of a sale agreement. Possession, it was submitted, must be nec vi, nec clam, nec precario, and occupation by a purchaser under a contract of sale is rightful and not hostile. Reliance was placed upon Mtana Lewa v Kahindi Ngala Mwagandi (Supra), upon Azhar s/o Mohammed Akram (Deceased) v Singh & 4 others [2026] KECA 1130 (KLR), which cited Kenga & 12 others v Mohamed [2025] KECA 2219 (KLR) for the JUDGMENT ELCOS E026 OF 2024 25

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elements to be established, upon Samuel Miki Waweru v Jane Njeri Richu [2007] eKLR, upon Kioi & another (Suing on behalf of the Estate of Mwangi Kioi (Deceased)) v Investments & another [2023] KESC 53 (KLR), in which the Supreme Court cited with approval the holding that once an applicant took possession pursuant to an alleged agreement for sale, that of itself negated a claim in adverse possession because the possession would have been with consent, upon Sisto Wambugu v Kamau Njuguna (Supra) and Jandu v Kirpal [1975] EA 225, and upon Koros v Masanya (ELC 70 of 2018) [2025] KEELC 5598 (KLR). The Plaintiffs, it was submitted, have wholly failed to demonstrate how and when the permissive character of their entry and occupation ceased; their entry into the suit land in 2002 does not of itself establish adversity. 35. On the third ground, namely that the facts pleaded by the Plaintiffs are not borne out by the evidence on record, counsel submitted that the Plaintiffs, while pleading a claim in adverse possession, adduced documentary evidence asserting a sale and called witnesses who JUDGMENT ELCOS E026 OF 2024 26

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testified in support of a sale and who justified the Plaintiffs’ occupation on that basis. Parties are bound by their pleadings, and evidence at variance with them must be disregarded: Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR and Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others (2014) eKLR, which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002. Pleadings, moreover, are mere allegations and are not evidence: CMC Aviation Ltd v Cruisair Ltd (No. 1) (Supra). 36. Counsel met directly the Plaintiffs’ contention that, the Defendants having called no evidence, the Plaintiffs’ evidence stands uncontroverted and the Court is entitled to act upon it as credible. That position, it was submitted, is flawed in law. A failure by the Defendants to call evidence does not relieve the Plaintiffs of the burden of proof, which remains upon them to adduce credible and believable evidence capable of standing alone and proving their claim on a balance of probabilities. Sections 107, JUDGMENT ELCOS E026 OF 2024 27

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108, 109 and 112 of the Evidence Act were relied upon, together with Charterhouse Bank Limited (Under Statutory Management) v Frank N. Kamau [2016] eKLR, in which the Court of Appeal held that where a defendant has subjected the plaintiff’s witnesses to crossexamination and the evidence adduced is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified, and Gichinga Kibutha v Caroline Nduku [2018] eKLR, in which it was said that it is not automatic that where evidence is not controverted the claimant shall have his way in court. 37. On the fourth ground, namely that no case for the acquisition of prescriptive rights has been made out, counsel submitted that the Plaintiffs’ pleaded claim is a bare averment unsupported by the evidence on record. A party relying on the doctrine bears the burden of demonstrating that the title holder has been dispossessed or has discontinued possession for the statutory period and that the claimant, being a trespasser, has been in possession nec vi, nec clam, nec precario. The evidence JUDGMENT ELCOS E026 OF 2024 28

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led established that the Plaintiffs’ entry and continued occupation were pursuant to an agreement for sale with the deceased registered owner; occupation under an agreement for sale is by its very nature permissive, which defeats the requisite element of possession without permission. The Plaintiffs further failed to prove when, if at all, the qualifying permissive character of their occupation ended and when the occupation thereafter became adverse. Counsel returned for this purpose to the observation in Gabriel Mbui v Mukindia Maranya (Supra) that hostility is the very marrow of adverse possession and means nothing more than that the possession is without the permission of the one legally empowered to give possession. 38. Turning to the four issues framed in the Plaintiffs’ submissions, and taking first the question whether the Plaintiffs paid the full purchase price and thereby acquired an equitable and beneficial interest, counsel submitted that an equitable interest by way of constructive trust arises only upon clear and satisfactory proof that the purchaser has paid the full consideration, and that the JUDGMENT ELCOS E026 OF 2024 29

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burden of proving such payment lies upon the Plaintiffs. The only material adduced is the agreement for sale of 29th April 1999 in which the deceased vendor acknowledged receipt of Kshs. 70,000/=; no payment voucher, bank record or other independent evidence of actual payment was produced. Given the long passage of time and the death of the vendor, the burden was said not to have been discharged to the requisite standard, with the consequence that no constructive trust came into existence. Abdalla v Hassan & 16 others (Supra) was distinguished on the footing that the Court there found as a fact that the purchasers had paid the full purchase price, and it was upon that proven foundation that the vendors were held to have become trustees; that foundational fact, it was submitted, is absent here. Counsel added that even if some payments were established, that alone would not automatically create a proprietary interest binding the Defendants after more than twenty years of complete inaction on the part of the Plaintiffs, equity not aiding the indolent. JUDGMENT ELCOS E026 OF 2024 30

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39. Counsel advanced, under the same head, a further and independent objection founded upon the Land Control Act. The agreement relied upon concerned agricultural land and was therefore a controlled transaction. Section 8(1) of the Land Control Act, Cap. 302 requires an application for consent to be made to the appropriate land control board within six months of the making of the agreement, and section 22 provides that a person who pays or receives money, or enters into or remains in possession of land, in furtherance of a transaction avoided by section 6 is guilty of an offence. Reliance was placed upon David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR), in which the Court of Appeal held that occupation of agricultural land pursuant to a transaction which has not obtained the consent of the relevant board is a criminal offence and cannot constitute an overriding interest, and that no estoppel can arise under the Act to render valid and lawful conduct which the Act declares void for all purposes and criminal. Counsel pointed to PW2’s concession in cross-examination that he does not have consent to transfer because of the vendor’s dispute JUDGMENT ELCOS E026 OF 2024 31

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with his neighbour, which stalled the sub-division and transfer. It followed, it was submitted, that no equitable or beneficial interest accrued and that the claim founded upon proprietary estoppel equally fails. 40. On the second issue, whether the Plaintiffs took possession of the portion claimed and whether their occupation became adverse, counsel addressed the authorities relied upon by the Plaintiffs, namely Public Trustee v Wanduru Ndegwa (Supra), Peter Mbiri Michuki v Samuel Mugo Michuki (Supra) and Mtana Lewa v Kahindi Ngala Mwagandi (Supra), and submitted that the contention built upon them overstates their holdings. The cases do not create an automatic rule that a purchaser who has paid the purchase price, entered and remained in occupation for the statutory period, thereby acquires title by prescription; on the contrary, they reinforce the fundamental requirement that the possession must become adverse. Counsel drew attention to the passage in Peter Mbiri Michuki (Supra), citing with approval Public Trustee v Wanduru (Supra), in which the Court observed that the entry in 1964 was with JUDGMENT ELCOS E026 OF 2024 32

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the permission of the appellant qua vendor, and that any permission or licence to enter the suit property having been terminated by the letter dated 18th August 1978, it was from that date onwards that the continued occupation and possession became adverse to the appellant’s title. In the present case, it was submitted, the Plaintiffs have not demonstrated when the contractual licence conferred by the agreement for sale was ever repudiated or terminated, and their continued occupation therefore remained expressly referable to that agreement. Counsel relied for this purpose upon the statement in Azhar s/o Mohammed Akram (Deceased) v Singh & 4 others (Supra) that the right to adverse possession begins on the day the unauthorised occupation begins. 41. On the third issue, concerning acknowledgement and the interruption of time, counsel made two submissions. First, any acknowledgement by the deceased or by his estate whether by execution of the agreement, rectification of the parcel particulars, delivery of a copy of the title, procurement of the sub-division consent or the placing of the Plaintiffs in possession was an acknowledgement of a JUDGMENT ELCOS E026 OF 2024 33

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contractual relationship arising from the agreement for sale of 29th April 1999, and not an acknowledgement that the Plaintiffs’ possession had become adverse. The very facts relied upon demonstrate that the parties continued to treat their relationship as contractual, which is inconsistent with the Plaintiffs’ assertion that possession had already crystallised into a hostile one and that time was running against the registered title. Secondly, adverse possession begins on the day the unauthorised occupation begins, and the Plaintiffs proved no date or act by which the permission which they assert they had came to an end. On the face of it, therefore, the twelve-year period never began to run; and one cannot interrupt, postpone or affect a period which has not commenced. 42. On the fourth issue, concerning relief, counsel submitted that section 38 of the Limitation of Actions Act empowers the Court to order registration only where a person has already acquired title by adverse possession, and that the provision does not create title where the requisites of adversity, of continuous open and undisturbed occupation, and of the expiry of twelve years from a proven starting JUDGMENT ELCOS E026 OF 2024 34

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point, have not been established. It was further submitted that, the Plaintiffs’ continued occupation constituting an offence under section 22 of the Land Control Act, the grant of the orders sought would amount to the sanctioning of an illegality by the Court. Counsel relied upon the passage in David Sironga Ole Tukai (Supra) in which the Court of Appeal, citing Mapis Investment (K) Ltd v Kenya Railways Corporation [2005] 2 KLR 410 and the observations of Lindley LJ in Scott v Brown, Doering, McNab & Co [1892] 2 QB 724, applied the maxim ex turpi causa non oritur actio and held that no court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a transaction which is illegal. 43. The 1st and 2nd Defendants accordingly urged the Court to dismiss the Plaintiffs’ claim in its entirety, with costs to them. 44. The 3rd Defendant, although represented by counsel at the hearing and although directed to file written submissions, filed none. He had earlier filed no response to the Further Amended Originating Summons, no grounds JUDGMENT ELCOS E026 OF 2024 35

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of opposition, no witness statement and no documents, and he called no evidence at the hearing. Issues for determination 45. The following issues arise for determination: (i) Whether the Plaintiffs have established the essential ingredients of a claim for adverse possession over a portion measuring approximately 1 acre (0.4 Ha) of Land Parcel No. KISUMU/MUHORONI/1098; (ii) Whether the portion claimed has been identified with sufficient certainty to found a decree; (iii) Whether the Plaintiffs are entitled to the alternative reliefs founded on trust and to an order for transfer and registration; and (iv) What orders should issue as to relief and costs. Analysis and determination 46. Under sections 107, 108 and 109 of the Evidence Act, whoever desires a court to give judgment as to any legal JUDGMENT ELCOS E026 OF 2024 36

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right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The standard is proof on a balance of probabilities. The fact that the Defendants elected to call no evidence does not relieve the Plaintiffs of the burden of proving their case; it means only that the Plaintiffs’ evidence stands uncontroverted, and that evidence must still be tested against the pleadings, the documents produced, and the answers elicited on cross-examination. See Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334. 47. That principle assumes particular importance in this case, because the Plaintiffs press upon me the submission that their evidence, being uncontroverted, must be accepted and acted upon. I accept, as counsel for the Plaintiffs submitted, that grounds of opposition and written submissions are not evidence, and that the Defendants, having called no witness, have placed before me no competing version of the facts. It does not follow that judgment must go to the Plaintiffs. The 1st and 2nd Defendants are in my view correct in their answer to the point. In Charterhouse JUDGMENT ELCOS E026 OF 2024 Bank Limited (Under 37

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Statutory Management) v Frank N. Kamau (Supra) the Court of Appeal held that before a trial court can conclude that a plaintiff’s case is not controverted by reason of the defendant’s failure to call evidence, it must be satisfied that the plaintiff has adduced credible and believable evidence which can stand in the absence of rebuttal, and that where the defendant has subjected the plaintiff’s witnesses to cross-examination and the evidence is thereby discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. To the same effect is Gichinga Kibutha v Caroline Nduku (Supra). That is precisely the position here. The Defendants did not call evidence, but they cross-examined; and it is the answers elicited from PW1, PW2 and PW3 in cross-examination, rather than anything the Defendants themselves put forward, which determine this suit. Issue (i): Whether the Plaintiffs have established a claim for adverse possession 48. The statutory foundation of a claim of this nature is found in sections 7, 13, 17, 37 and 38 of the Limitation of Actions JUDGMENT ELCOS E026 OF 2024 38

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Act, Cap. 22. Section 7 bars an action to recover land after the end of twelve years from the date on which the right of action accrued. Section 17 provides that at the expiry of the period prescribed for bringing such an action, the title of the person formerly entitled to the land is extinguished. Section 38 entitles a person who claims to have become entitled by adverse possession to land registered under any of the registration statutes to apply to the Court for an order that he be registered as proprietor in place of the person then registered. Order 37 Rule 7 of the Civil Procedure Rules prescribes the procedure by way of originating summons. 49. The ingredients of adverse possession are well settled. The claimant must establish that he has been in actual, open, notorious, exclusive and uninterrupted possession of the land for an unbroken period of not less than twelve years; that such possession was without the permission of the registered proprietor and was inconsistent with and in denial of the proprietor’s title; and that the proprietor had knowledge, actual or constructive, of that possession. The possession must, in the classic formulation, be nec vi, nec JUDGMENT ELCOS E026 OF 2024 39

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clam, nec precario without the without force, without secrecy and permission of the owner. See Sisto Wambugu v Kamau Njuguna (Supra), Gabriel Mbui v Mukindia Maranya (Supra), Kasuve v Mwaani Investments Limited & 4 others [2004] 1 KLR 184 and Mtana Lewa v Kahindi Ngala Mwagandi (Supra). 50. The requirement that possession be nec precario is not a technicality; it goes to the very root of the doctrine. Time does not run in favour of a person who occupies land with the owner’s leave, because such an occupier does not hold in denial of the owner’s title; he holds under it. Nor does time run in favour of a purchaser who has been let into possession under a contract of sale, for, so long as that contract subsists, his possession is referable to, and consistent with, the vendor’s title. The Court of Appeal put the matter beyond argument in Samuel Miki Waweru v Jane Njeri Richu (Supra), where it held that a claim of adverse possession cannot succeed where the claimant is in possession with the permission of the owner or pursuant to an agreement for sale. To the same effect are JUDGMENT ELCOS E026 OF 2024 40

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Public Trustee v Wanduru Ndegwa (Supra) and Peter Mbiri Michuki v Samuel Mugo Michuki (Supra). 51. The Plaintiffs, however, invoke a line of authority which they say points the other way. They rely upon Sisto Wambugu v Kamau Njuguna (Supra), Public Trustee v Wanduru Ndegwa (Supra), Peter Mbiri Michuki v Samuel Mugo Michuki (Supra), Mtana Lewa v Kahindi Ngala Mwagandi (Supra), Ouko & another v Kageni (Supra) and Okul & another v Ondieki & 3 others (Supra) for the proposition that a purchaser who has paid the whole of the purchase price, who has entered into possession with the vendor’s authority, and who has remained in occupation beyond twelve years while the vendor fails to complete, thereby acquires title by prescription. The 1st and 2nd Defendants answer that the same authorities reinforce the requirement of adversity rather than dispense with it. The two readings cannot both be right, and since three of the decisions are relied upon by both sides, the point must be addressed directly. 52. In my respectful view the apparent conflict dissolves once it is appreciated what question each of these authorities JUDGMENT ELCOS E026 OF 2024 41

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was answering. None of them holds that possession which is permissive in its inception is, without more, adverse. What they decide is when possession which began permissively may cease to be permissive, and therefore when time begins to run against the proprietor. In Sisto Wambugu v Kamau Njuguna (Supra) the Court of Appeal stated the rule in terms which admit of no ambiguity: a purchaser of land under a contract of sale who is in possession with the permission of the vendor pending completion cannot lay a claim of adverse possession of such land at any time during the period of validity of the contract of sale and until the contract of sale has first been repudiated or rescinded by the parties, in which case adverse possession starts from the date of the termination of the contract. In Public Trustee v Wanduru Ndegwa (Supra) Madan JA identified the payment of the purchase price in full, coupled with the taking of possession, as the point from which the twelve years are to be computed, because from that date the true owner is dispossessed of possession. In Peter Mbiri Michuki v Samuel Mugo Michuki (Supra) the Court, JUDGMENT ELCOS E026 OF 2024 42

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citing that decision with approval, found that the entry in 1964 had been with the permission of the appellant qua vendor and that any such permission or licence was terminated by the letter dated 18th August 1978, from which date the occupation became adverse. And in Gabriel Mbui v Mukindia Maranya (Supra) Kuloba J accepted that adverse possession may arise out of a sale agreement if nothing subsequent to the sale agreement is in contravention of any law or equity, while holding in the same breath that time does not begin to run against the owner unless and until the date of payment of the last instalment of the stipulated purchase price. 53. What unites these authorities is therefore not a dispensation from the requirement of adversity but an insistence upon the identification of a moment at which the permission came to an end and the possession became hostile. The burden of proving that moment rests upon the claimant, for it is the starting point from which the twelve years are reckoned. That, as it seems to me, is the sense of the observation of the Court of Appeal in Azhar s/o Mohammed Akram (Deceased) v Singh & 4 JUDGMENT ELCOS E026 OF 2024 43

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others (Supra) that the right to adverse possession begins on the day the unauthorised occupation begins. So understood, the decisions relied upon by the Plaintiffs and those relied upon by the Defendants stand together, and nothing that I have said above requires qualification. A purchaser who has been let into possession may indeed acquire a prescriptive title; but he must first show when his occupation ceased to be referable to the contract under which he entered, and it is from that date, and not from the date of his entry, that time runs in his favour. 54. Applying those principles to the evidence before me, the Plaintiffs’ claim founders at the threshold. The character of their possession was placed beyond controversy by their own witnesses. PW1, the retired Assistant Chief called by the Plaintiffs themselves, stated in terms that the Plaintiffs are on the land on the basis of a sale agreement and that “the entry was by permission by the then registered owner.” PW2, the 1st Plaintiff, was equally unequivocal. He testified that he is a purchaser, that “my entry was permissive”, that he was given permission by the owner to enter the land, that his entry was not JUDGMENT ELCOS E026 OF 2024 44

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forcible, and most tellingly that “my continued occupation has been on the basis of the sale agreement.” 55. That evidence is fatal to the claim as pleaded. It establishes not merely that entry was permissive, which of itself would suffice, but that the permissive and contractual character of the occupation has continued unbroken to the date of the hearing. There is not a shred of evidence that the agreement for sale was ever repudiated or rescinded, or that the Plaintiffs at any point resiled from it and began to hold in denial of the title of the registered proprietor or of his estate. On the contrary, the whole thrust of the Plaintiffs’ case, from the demand letter of 11th October 2024 through to PW3’s evidence that “we are only interested in having the title deed”, is that they seek to perfect a title derived from the vendor, not to defeat it. The animus possidendi which the doctrine requires the intention to possess as owner, adversely to and in exclusion of the true owner is simply absent. JUDGMENT ELCOS E026 OF 2024 45

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56. I should add that the pleaded chronology did not survive cross-examination either. The Further Amended Originating Summons and the supporting affidavit assert occupation “since 1999”. PW2 told the Court that he entered the land in December 2002, and PW3 candidly accepted that the paragraph in her statement asserting occupation from 1999 was false. That correction does not, on its own, defeat the claim on arithmetic, since even a period computed from December 2002 would exceed twelve years by the time the suit was filed on 13th November 2024. What defeats the claim is not the length of the possession but its quality. Permissive possession, however long it endures, cannot ripen into a prescriptive title. 57. It follows, and I so find, that the Plaintiffs have not established that their possession of the portion claimed was adverse to the registered proprietor or to his estate at any material time. The first issue is answered in the negative. 58. Before leaving this issue I should say a word about the three recent decisions upon which the Plaintiffs placed JUDGMENT ELCOS E026 OF 2024 46

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particular reliance, two of which were not addressed in the 1st and 2nd Defendants’ submissions. Ouko & another v Kageni (Supra) is authority for the propositions that the erection of permanent structures evidences possession of the requisite character, and that section 38 of the Limitation of Actions Act prescribes no period within which a claim under it must be brought. I accept both propositions, and neither is in contest. Neither, however, assists the Plaintiffs: what defeats their claim is not the outward manifestation of their possession, which is not in doubt, nor the timing of their suit, but the quality of that possession. Abdalla v Hassan & 16 others (Supra) was a case in which the Court found as a fact that the purchasers had paid the whole of the purchase price and, upon that foundation, held that the vendors held the legal title as trustees for them. It was not a decision upon adverse possession, and it bears upon the alternative claim founded on trust rather than upon the claim actually pleaded under section 38. 59. Okul & another v Ondieki & 3 others (Supra) is the authority upon which the Plaintiffs’ argument most heavily JUDGMENT ELCOS E026 OF 2024 47

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depends, counsel submitting that it holds that entry under an agreement for sale which fails to complete through no fault of the purchaser may be deemed adverse. If the decision were to be read as laying down a general rule that the mere failure of a vendor to complete converts a permissive occupation into an adverse one without more, it would be irreconcilable with Sisto Wambugu (Supra) and with Samuel Miki Waweru (Supra), and a single bench of this Court would in any event be bound by the earlier authority. I do not, however, read it so. Read in the manner in which I have explained the line of authority above, the decision is consistent with the established principle: a contractual licence may determine when the vendor’s obligations fall due and are not performed, and from that determination time may begin to run. But the purchaser must still prove when that occurred. These Plaintiffs have not merely failed to prove it; they have positively disclaimed it, PW2 having testified that his continued occupation has been on the basis of the sale agreement, and the Plaintiffs having continued to demand JUDGMENT ELCOS E026 OF 2024 48

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transfer under that agreement as late as the demand letter of 11th October 2024. Issue (ii): Identification of the portion claimed 60. In view of the conclusion reached on the first issue, this issue does not strictly arise. I nonetheless record, for completeness, that a decree under section 38 of the Limitation of Actions Act must relate to a portion of land defined with sufficient precision to permit the Land Registrar to open a register and issue a title. The only material placed before the Court on this question is a sketch map prepared by a licensed surveyor and dated 9th March 2022, marking a portion “A” and a portion “B”, together with a Land Control Board consent of 28th November 2002 authorising the sub-division of an acreage into several parcels in the name of the vendor alone. There is no mutation form, no approved sub-division scheme referable to the Plaintiffs, and no survey ordered by or reported to this Court. Had the claim otherwise succeeded, the Court would have been obliged to direct a survey before any decree capable of registration could issue. JUDGMENT ELCOS E026 OF 2024 49

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Issue (iii): The alternative reliefs founded on trust 61. Prayers (c), (d) and (e) of the Further Amended Originating Summons seek declarations that the Defendants hold the portion in trust for the Plaintiffs and consequential orders for transfer and registration. Three difficulties attend these prayers. 62. First, they are pleaded not as an independent cause of action but as consequential upon the finding of adverse possession sought in prayers (a) and (b). Prayer (b) in terms asks the Court to declare that the Defendants’ rights were extinguished by operation of law, and prayer (c) then asks that the Defendants hold in trust. Once the foundation falls, the superstructure falls with it. 63. Secondly, the originating summons procedure under Order 37 Rule 7 of the Civil Procedure Rules is confined to claims brought under sections 37 and 38 of the Limitation of Actions Act. A claim founded upon a contract of sale, upon specific performance, or upon a constructive trust arising from payment of the purchase price and entry into possession, is not a claim to which that procedure applies. Such a claim must be brought by plaint, with pleaded JUDGMENT ELCOS E026 OF 2024 50

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particulars of the trust or of the equity relied upon, so that the party against whom it is asserted knows the case it must meet. The Defendants here were called upon to answer a claim in adverse possession and, as their Grounds of Opposition and their submissions correctly observe, a claim to an interest acquired by sale is inconsistent with a claim founded on prescription. 64. Thirdly, and in any event, the evidentiary foundation for such a claim was not laid in these proceedings. The instrument relied upon bears an alteration to the parcel number which both Plaintiffs conceded was neither countersigned by the parties nor authenticated by the witnessing advocate, PW3 going so far as to say that it “looks like there was fraud” and that what the Plaintiffs had signed for was a different parcel number altogether. The register discloses that the vendor was not the registered proprietor of the suit land on 29th April 1999, the proprietorship section showing Domtila Aduda Apopa from 6th September 1994 and Philip Leo Apopa only from 17th October 2002. Moreover, although the suit land is agricultural land within a land control area, the only JUDGMENT ELCOS E026 OF 2024 51

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consent produced is a consent to sub-divide issued to the vendor on 28th November 2002; PW2 conceded that the consent to the transfer has to date never been obtained, with the consequence that the transaction became void under section 6(1) as read with section 8(1) of the Land Control Act upon the lapse of six months. 65. The 1st and 2nd Defendants go further upon this last point. They submit, upon the authority of David Sironga Ole Tukai v Francis Arap Muge & 2 others (Supra), that occupation of agricultural land pursuant to a controlled transaction which has become void for want of consent is declared by section 22 of the Land Control Act to be an offence; that such occupation cannot constitute an overriding interest; that no estoppel can arise under that Act to render lawful that which the Act declares void for all purposes and criminal; and that for this Court to grant the orders sought would be to sanction an illegality, contrary to the maxim ex turpi causa non oritur actio. So far as the claim actually before me is concerned, the submission has force; but it is not necessary for me to decide it, the claim failing for the reasons already given. I JUDGMENT ELCOS E026 OF 2024 52

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would not wish it to be thought, however, that I have decided upon this originating summons that every equitable claim which may arise out of the agreement of 29th April 1999 is barred by illegality. That question falls to be considered against the line of authority to which I now turn, and it must be determined, if at all, in proceedings properly constituted for the purpose and upon full argument. 66. I am alive to the line of authority, exemplified by Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri (Supra) and Willy Kimutai Kitilit v Michael Kibet (Supra), to the effect that a vendor who has been paid the full purchase price and has let the purchaser into possession may in appropriate circumstances be held to stand as a constructive trustee, and that the equitable doctrines of constructive trust and proprietary estoppel are not necessarily displaced by the avoidance provisions of the Land Control Act. Nothing in this judgment is intended to foreclose an argument founded on those principles. But such a claim must be properly constituted and properly pleaded; it would JUDGMENT ELCOS E026 OF 2024 53

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require the joinder of all the administrators of the estate holding under the fresh grant of 10th August 2016; and it would have to be considered against the terms of the confirmed grant in High Court Succession Cause No. 370 of 2006, which KISUMU/MUHORONI/1098 expressly directs is held to be how by the administrators and ultimately distributed among the five houses of the deceased. Those questions are not before me and I say nothing further about them. 67. The third issue is accordingly answered in the negative, subject to what I have said as to the Plaintiffs’ liberty to pursue an appropriately constituted claim. Issue (iv): Relief and costs 68. It follows from the foregoing that the Further Amended Originating Summons is for dismissal. 69. I am conscious that this outcome may appear a hard one to the Plaintiffs, who are elderly persons, who paid the whole of an agreed purchase price more than a quarter of a century ago, who have lived on the portion and built their home upon it, and whose difficulties are traceable in JUDGMENT ELCOS E026 OF 2024 54

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no small measure to a boundary dispute in which they had no hand and to successive changes in the administration of the vendor’s estate. But this Court cannot grant a prescriptive title to claimants whose own evidence is that they hold by permission and under a contract. The remedy of such purchasers, if any, lies elsewhere. 70. On costs, the ordinary rule under section 27 of the Civil Procedure Act is that costs follow the event, but the award remains a matter of judicial discretion to be exercised on principle. Having considered the circumstances of this case, I consider it just that each party bears its own costs. Final orders 71. In the final result, and for the reasons set out above, I make the following orders: (i) The Further Amended Originating Summons dated 5th August 2025 be and is hereby dismissed. (ii) Each party shall bear its own costs of this suit. DATED, SIGNED and DELIVERED at KISUMU this 30th day of September, 2026. JUDGMENT ELCOS E026 OF 2024 55

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E. K. WABWOTO JUDGE In the presence of: Mr. Nyanga for the Plaintiffs. Mr. Ouma Njoga for the Defendants. Court Assistant: Joanne Omondi. JUDGMENT ELCOS E026 OF 2024 56

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