Moraa & another (Suing as the Legal Representatives of the Estate of Gesare Mogeni - Deceased) v Nyoka

4. The Plaintis further averred that before his demise, Ogega learnt that the Defendant had unlawfully occupied his portion leading to Ogega lodging a caution at the land registry. That the Plaintis’ eorts to inter Ogega’s remains on Ogega’s portion of the suit property had been thwarted by the Defendant who refused to give vacant possession and claimed that he was the rightful owner of the portion. 5. Consequently, the Plaintis prayed for judgment against the Defendant for: a. An eviction order and vacant possession. b. The O.C.S Matutu Police Station be ordered to ensure compliance. c. Costs of this suit together with interest. 6. The Defendant led Statement of Defence and Counterclaim dated 30th June 2025. He admitted that Gesare remains the registered proprietor of the suit property and that Gesare allocated the suit property as averred by the Plaintis. He further admitted that Ogega relocated to Eldoret and added that before relocating, Ogega sold his portion to him through sale agreement dated 4th January 2006. 7. The Defendant further averred that following the sale transaction, he had been in occupation of the 5.7 hectare portion of the suit property freely, without force or permission from anyone and that he was therefore entitled to the portion through adverse possession. That the Plaintis were threatening him with trespass with a view to burying Ogega’s remains on the portion. 8. Consequently, the Defendant prayed for judgment against the Plaintis as follows: a. An order be and is hereby issued that the Counter-claimer herein has acquired ownership of portion of land measuring 5.7 Acres from the parcel of land known as Nyansiongo Settlement Scheme/72 by dint of being in actual possession thereof for a period of 18 years as therefore amounting to customary trust as envisaged under section 25 (b) of the Land Registration Act. b. A declaration that the Counter-claimer is the legal owner of a portion of land measuring 5.7 Acres from the parcel of land known as Nyansiongo Settlement Scheme/72. c. Permanent injunction restraining the Defendants either by themselves, agents, servants, and/ or anyone claiming under the defendants from entering into, re-entering, trespassing onto, building structures, cultivating, converting the suit land, abusing the Plainti’s rights, interring with and/or burying the remains of Joseph Ogega Mogeni (Deceased) in the suit property that is L.R No. West Kitutu/Bogeka/8262. d. Costs of the suit be borne by the Defendants. e. Such further and/or other reliefs as the Honourable court may deem t and expedient so to grant. 9. The Plaintis led reply to defence and defence to counterclaim dated 22nd July 2025. They denied the allegations of sale and averred that the Defendant took possession of the portion of the suit property without Ogega’s consent. They therefore prayed that the counterclaim be dismissed with costs and that judgment be entered in their favour. 10. Hearing of the case commenced on 19th November 2025 when Luciana Moraa Mogeni, the First Plainti, testied as PW1. She stated that Gesare was her mother and that they were eleven children; eight boys and three girls. That all her brothers were deceased save for Nickson Ondima Mogeni who was residing on the suit property with Peter Mogeni. That during her life, Gesare gave the suit property to Nickson, Peter and Ogega while she gave the remaining ve brothers land in Bonchari. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 2

page 2 of 12

11. She added that the daughters did not have any complaint despite not being given any land and that Ogega had a home on his portion of the suit property where he lived with his family before relocating to Eldoret with the family around the year 2006. She also stated that she did not know whether Ogega sold his portion or to whom he left it. She further testied that her brothers and her registered a caution against the suit property in 2005 upon learning that some strangers were viewing it. 12. She further stated that Gesare passed away in 1991 and that succession had not been done in respect of her estate. That the suit property remained registered in Gesare’s name and that when Ogega passed away on 24th November 2024, she went to the suit property and found the Defendant in occupation who claimed to have purchased Ogega’s portion. She added that they were yet to bury Ogega’s remains since they had nowhere to do the burial. She adopted her witness statement dated 9th June 2025 and produced copies of the documents listed as items number 1 to 7 in Plaintis’ List of Documents dated 9th June 2025 as well as a copy of the document listed as item number 2 in Plaintis’ Further List of Documents dated 22nd July 2025 as her exhibits. 13. She went on to testify that she was in Court to claim land on behalf of Ogega and that they could not burry his remains because the Defendant had stopped them from burying on the portion of the suit property. She added that the Plaintis’ prayer was that the Defendant be evicted so that the burial could go ahead on the portion. 14. Bonface Mogeni (PW2), the Second Plainti, adopted his witness statement dated 9th June 2025 and stated that he was Ogega’s son. He added that Ogega died on 24th November 2024 and that he was born on the suit property before the family later relocated to Eldoret in the year 2006 when he was eleven years old and subsequently to Nairobi. That they left a home on the suit property and that Ogega did not tell the family of any sell of his portion to anybody. 15. He went on to state that he went home with the First Plainti to organize the burial and found the Defendant on the portion of the suit property and that the Defendant claimed that he had purchased it and told them that they could not bury Ogega there. He added that they found a new house on the portion and that his aim in this case was to get Ogega’s land back. 16. He further stated in his witness statement that they conducted a search in respect of the suit property which indicated that the suit property was still registered in Gesare’s name. He also stated that did not know why succession had not been done in respect of suit property but was sure that the portion of the suit property would be devolve to his father and not anyone else. 17. Mary Kemunto Ratemo (PW3) adopted her witness statement dated 9th June 2025 and stated that the suit property was still registered in Gesare’s name and that no succession had been conducted in respect of Gesare’s estate. She added that she did not know whether Ogega sold his land and that she saw the Defendant for the rst time when they went to bury Ogega. She also stated that she wanted Ogega to be buried on his portion of the suit property and that his family gets the said portion. 18. Augustine Sure Onkundi (PW4) adopted his witness statement dated 22nd July 2025 and stated that he is a grandson of Gesare and that Ogega was his paternal uncle. He added that he communicated with Ogega from the year 2013 when he saw the Defendant occupying Ogega’s portion but Ogega did not give him any clear answer as to why the Defendant was on the land. He added that after his father passed away, he confronted Ogega and asked him whether he sold his portion of the suit property but Ogega failed to give a clear answer only for him to learnt later that Ogega had registered a caution against the suit property, claiming a benecial interest. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 3

page 3 of 12

19. PW4 further testied that no succession had been conducted in respect of Gesare’s estate due to challenges within the family and that he agreed with the minutes of the meeting that was held at the Chief’s oce. He also stated that he was aware of an agreement between the Defendant and Ogega but was not aware whether Ogega received any money from the Defendant. He further stated that the Defendant had been on the land since the year 2012. 20. Josephine Nyarinda Ogega (PW5) adopted her witness statement dated 22nd June 2025 and stated that she was Ogega’s widow and the Second Plainti’s mother. That she got married to Ogega in 1988 and that at that time, Ogega had a house on his portion of the suit property where he was living. 21. She further stated that they later purchased land in Eldoret and relocated there but left a caretaker who remained until the year 2010 when he left. She added that she did not sign any sale agreement and was not aware of any sale of Ogega’s portion of the suit property. That upon Ogega’s death, she went to arrange his burial on the portion but found the Defendant in occupation. 22. She went on to state that the Defendant refused to allow the burial on the portion and that they had meetings at the Chief’s oce and the Assistant County Commissioner’s oce. She further stated that she never went back to the land after they relocated in 2006 save in 2015 when she went to attend Ogega’s brother’s burial. That on the said occasion, she spent the night in Ogega’s brother’s home and left immediately after the burial. 23. She further denied that she admitted in the Assistant County Commissioner’s oce that she received a sum of KShs 1,720,000. She added that Ogega was the registered owner of land measuring 2.2 hectares in Uasin Gishu and that they wanted to bury Ogega’s remains in his portion of the suit property as required by Kisii customs and not in Ogega’s land in Uasin Gishu. 24. Emmanuel Karisa Kenga (PW6) testied that he was a Forensic Document Examiner with more than thirty years’ experience testied and that on 15th July 2025, the Plaintis’ advocates instructed him to examine some documents. He produced a report dated 18th July 2025 which he stated that he prepared and added that upon examining questioned signatures, specimen signatures and known signatures, he concluded that the signatures in sale agreement dated 4th January 2006 and other documents claimed to be of Josephine Nyarinda Ogega (PW5) did not match her known signatures and specimen signatures and were therefore not written by her. 25. The Plainti’s case was then closed. 26. The Defendant, Charles Gekonge Nyoka, testied as DW1. He adopted his witness statement dated 30th June 2025 and produced copies of the documents listed as item number one to six in his list of documents dated 30th June 2025 as well as copies of some photographs. 27. He stated that he had been occupying 5.7 acres portion of the suit property which Ogega sold to him at a consideration of KShs 2,360,000 through sale agreement dated 4th January 2006. That the agreement was witnessed by the area Chief and Ogega’s widow Josephine Nyarinda Ogega and that he paid Ogega the full purchase price in the presence of the widow and Ogega’s brothers Nixon Ondimu and Charles Nyabwari. 28. The Defendant further stated that he was handed vacant possession upon which he fenced the portion and commenced construction of his home. He added that he purchased the whole portion together with developments therein and that he did not have any dispute with Ogega in the course of the period exceeding 19 years of his peaceful occupation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 4

page 4 of 12

29. He went on to state that Ogega’s brothers informed him that Ogega died on 24th November 2024 and was surprised when Ogega’s widow approached him demanding that Ogega’s remains be buried in his compound, a demand that he objected to since he had purchased the whole portion. That the matter was referred to the area Chief and later to the Deputy County Commissioner, all of whom recognised his rights as a purchaser. 30. He further stated that the suit property was yet to be subjected to succession, that the sale agreement was drafted at the Chief’s oce, that Gesare who was the registered proprietor died in 1991 and that he never dealt with Gesare regarding the sale. 31. Nickson Ondimu Mogeni (DW2) stated that the First Plainti is his sister, the Second Plainti his nephew and that Gesare was his mother and added that he did not consent to the Plaintis ling this case on behalf of Gesare. He adopted his witness statement dated 8th October 2025 and stated that Ogega expressed a desire to sell his portion of the suit property in the year 2005 and that in 2006, he realised that Ogega had sold his portion and relocated to Uasin Gishu. That before moving out, Ogega openly said that he had sold his portion and that thereafter, he started seeing the Defendant in the suit property. 32. He further stated that on 15th February 2011, he witnessed payment to Ogega by the Defendant of the last instalment of KShs 200,000 at the Chief’s oce at Nyansiongo. He added that succession had not been conducted in respect of the suit property. 33. Peter Jogoo Mogeni (DW3) stated that the First Plainti is his sister, the Second Plainti his nephew and that he did not consent to the Plaintis ling this case on behalf of Gesare. He also stated that he visited the suit property in the year 2006 when he discovered that Ogega sold his portion of the suit property to the Defendant and permanently relocated to Uasin Gishu. He further stated that the Defendant had been in occupation since 2006. 34. Henry Nyabuto Babu (DW4) adopted his witness statement dated 8th October 2025 and stated that the Plaintis were his neighbours and that the Defendant had lived on the portion of the suit property with his family since 2006. 35. Simon Ekaale (DW5) the Assistant County Commissioner, Mekenene Division in Nyamira County stated that the parties herein went to his oce following referral by the area Chief and that he held two mediation sessions with them on 18th and 19th December 2024 for. 36. He stated that he asked the parties to avail a copy of the title of the suit property and that the title showed that the land measured 14.826 acres. That the suit property was shared between three sons including Ogega. That Ogega was entitled to 4.942 acres which was a third of the land and that according to the sale agreement between Ogega and the Defendant, Ogega sold 5.7 acres which was more than he was entitled to. 37. DW5 further testied that Ogega’s widow wanted Ogega to be buried on any extra land which was left out of Ogega’s portion but it turned out that Ogega had sold more than his entitlement and it was not therefore possible to accommodate the burial. He also stated that focus then shifted to issues of payment where during the rst meeting Ogega’s widow conrmed that Ogega sold his portion and that she had received KShs 1,720,000 but disputed receiving KShs 640,000. 38. He equally stated that the land sale agreement included all the payments and that Ogega sold his entire share to the Defendant. He added that the Defendant had been in occupation for 20 years without any issue being reported to his oce. He also stated that he prepared a report dated 13th January 2025, which he produced as an exhibit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 5

page 5 of 12

39. The Defence case was then closed. 40. Directions were then given for ling and exchange of written submissions. The Plaintis led submissions dated 10th June 2026. 41. It was submitted on behalf of the Plaintis that the defendant's entire case rested on a purported sale agreement executed on 4th January 2006 and the alleged sale agreement could not confer any proprietary rights upon the Defendant since the land remained registered in the name of Gesare, no grant of representation was produced, no succession proceedings were conducted, no transfer was executed, no subdivision was undertaken and the land allegedly sold to the Defendant was not described. 42. It was equally submitted that it is trite law that a beneciary cannot dispose of estate property before succession in view of Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR where the court of appeal held that no person may deal with a deceased person’s estate without letters of administration. 43. It was also submitted that the evidence of PW6 was that the disputed signatures did not match the known signature of Josephine Nyarinda Ogaga thereby proving that the sale agreement relied upon by the Defendant contained forged signatures of Ogega’s widow. 44. The Plaintis further submitted that the alleged payment of the purchase price and execution of the sale agreement was done in the presence of the retired area chief who did a witness statement but the Defendant chose not to call him to testify choosing to ignore this crucial witness. 45. The Plaintis cited the case of Isaack M’inanga Kiebia v Isaaya Theuri M’lintari & Anor [2018] eKLR and submitted that the Defendant’s reliance on the doctrine of customary trust was misplaced. Regarding the Defendant's claim of adverse possession, it was argued that such a claim cannot coexist with an alleged purchase transaction and that in any case, the Defendant ought to have brought his adverse possession claim through an originating summons. Consequently, it was submitted that the Plaintis had established their claim and that judgment be entered in their favour while the counterclaim be dismissed. 46. The Defendant led submissions dated 22nd June 2026. It was submitted on behalf of the Defendant that he produced a sale agreement dated 4th January 2006 together with acknowledgements proving payment of the agreed purchase price and that the documentary evidence was corroborated by DW2, DW3 and DW4 who testied that Ogega had been allocated and occupied a distinct portion of the family land, which he voluntarily sold to the Defendant before relocating permanently to Uasin Gishu. 47. It was submitted that Ogega’s conduct following the transaction strongly supported the Defendant's case. That Ogega relocated from Nyansiongo in 2006 with his family and lived elsewhere until his demise in 2024 and that during the period of approximately 18 years, Ogega never challenged the sale, sought recovery of the land, or objected to the Defendant's occupation. 48. It was further submitted that the Plaintis’ own witnesses corroborated the Defendants case. That PW1 and PW2 admitted that Ogega relocated from Nyansiongo in 2006 while PW4 conrmed having seen the Defendant in occupation since at least 2012. That the Plaintis’ witnesses did not disprove the sale but merely stated that they were unaware of it. 49. It was equally submitted that although PW6 opined that the signatures on the sale agreement were not those of Ogega’s widow, expert evidence remains opinion evidence and is not binding upon the Court. Reliance was placed on Elizabeth Kamene Ndolo v George Matata Ndolo [1996] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 6

page 6 of 12

50. In response to the Plaintis’ contention that the suit property remained registered in the name of Gesare and that Ogega lacked capacity to transfer any legal interest, it was submitted that what was sold was the Ogega’s identiable benecial interest and that the transaction was not prejudicial to the other beneciaries. 51. It was further submitted that the Defendant entered into possession of the purchased portion in 2006 pursuant to the sale agreement, paid the full purchase price, and remained in open, peaceful and uninterrupted occupation ever since. That the transaction was fully performed by the parties and acted upon for nearly eighteen years without challenge from the deceased. Relying on Kitilit v Kibet [2018] KECA 573 (KLR), Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR and Muchanga Investments Limited v Habenga Holdings Limited & 9 others; Barclays Bank of Kenya Limited (Interested Party) [2025] KEELC 409 (KLR), it was submitted that the Defendant had acquired enforceable equitable and proprietary rights over the purchased portion through payment of consideration, possession, part performance, constructive trust, and proprietary estoppel, which rights the Court ought to protect. Accordingly, the Plaintis could not be granted the relief of eviction. 52. It was further submitted that the Defendant had been in open, exclusive, continuous, and uninterrupted occupation of the portion of the suit property since 2006 and that his occupation had been notorious and known to Ogega and the Plaintis, yet no action was taken to recover the land for approximately eighteen years. That the Defendant's long, uninterrupted occupation had crystallized into rights by adverse possession. In conclusion, the Defendant urged the Court to dismiss the Plaintis’ case and to allow the counterclaim as prayed. 53. I have carefully considered the pleadings, evidence and submissions. The issues that arise for determination are whether the parties have locus standi, whether customary trust has been established, whether adverse possession has been established and whether the reliefs sought should issue. 54. Locus standi is dened in Black’s Law Dictionary, 9th Edition (page 1026) as “the right to bring an action or to be heard in a given forum.” 55. At the core of this case is the parcel of land known as Nyansiongo Settlement Scheme Plot No. 72 (suit property). There is no dispute that the registered proprietor of the suit property is Gesare who died on 13th January 1991. According to entry number 2 in the proprietorship section of the register of the suit property, Gesare Mogeni (deceased) was registered as proprietor on 4th October 2005. Thus, the suit property is owned by her estate. 56. There is no dispute that Gesare’s estate remains unadministered. It is further not in dispute that the family informally distributed the estate without succession and that under that informal arrangement, Ogega got a portion of the suit property. Ogega himself died on 24th November 2024. The Defendant herein contends that Ogega sold to him the whole of Ogega’s portion on 4th January 2006. 57. The law is that a cause of action vested in or against the estate of a deceased person can only be validly agitated by or against the personal representative of the estate. See Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR and CKM v ENM & another (Civil Appeal 250 of 2019) [2024] KECA 293 (KLR) (8 March 2024) (Judgment). The term “legal representative” is dened at Section 2 of the Civil Procedure Act as meaning “a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 7

page 7 of 12

58. The Court of Appeal considered locus standi and the consequences of ling a suit for or against the estate of a deceased person without a grant of representation in the case of Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR) where it stated: Locus standi is cardinal in civil proceedings because without it, a party lacks the right to institute and/or maintain the suit even where a valid cause of action subsists. It can be equated to a court acting without jurisdiction. In Amlers Precedents of Pleadings, Lexis Nexis LTC Harms et al 2018 on page 248 the following is said: “The question of locus standi is in a sense procedural, but it is also a matter of substance. It concerns the suciency and directness of a person’s interest in the litigation to be accepted as a litigating party. It is also related to the capacity of a person to conclude a jural act. Suciency of interest depends on the facts of each case and there are no xed rules.” Locus standi concerns the suciency and directness of a litigant’s interest in proceedings which warrants his or her title to prosecute the claim asserted, and should be one of the rst things to establish in a litigation. … Decided cases are in agreement that where a suit is led relating to a deceased’s estate without a grant of representation, the proceedings are null and void for want of locus standi. (See Virginia Edith Wamboi vs. Joash Ochieng Ougo & Another [1982-88] 1 KAR and Trouistik Union International & Another vs. Jane Mbeyu & Another Civil Appeal No. 145 of 1990). It follows, therefore, that for a party to have locus standi to institute or defend a case for and on behalf of a deceased person, he or she must rst obtain a grant of letters of administration empowering him or her to administer the deceased’s estate or a limited grant limited for the purpose of ling or defending the suit. 59. Subsequently, the Supreme Court held in Kinuthia (Suing as the Legal/Personal Representative of the Estate of Loise Gachiku Kinuthia (Deceased)) v Rugiri & 3 others [2026] KESC 35 (KLR) as follows: Undoubtedly, under the Law of Succession Act, a conrmed grant is not a pre-requisite for conferment of locus standi upon a personal representative. A person to whom a grant of representation has been made, thereby acquires the legal capacity to institute legal proceedings in defence, or preservation of the deceased’s estate. A conrmed grant becomes a requirement where, the personal representative seeks to transmit, sell part, or all of the immovable property comprised in the estate. …. Consequently, it is the nding of this Court that the appellant had the requisite locus standi to institute the counterclaim before the Environment and Land Court. 60. In the heading of both the initial Plaint and the Amended Plaint, the Plaintis indicated that they were “Suing as the Legal representatives of the Estate of Gesare Mogeni(deceased).” Indeed, among the exhibits which they produced is Limited Grant of Letters of Administration Ad Litem, in respect of Gesare’s estate, issued to them on 24th February 2025. The grant is “limited to the purpose of ling a suit only.” Thus, the Plaintis have locus standi to le and prosecute this suit for Gesare’s estate and to defend the counterclaim against the said estate. 61. A perusal of the Amended Plaint reveals that the Plaintis did not anywhere therein aver that they had brought the suit as legal representatives of Ogega’s estate. They neither claimed that any grant was issued to them in respect of the said estate nor produced such a grant. 62. The foregoing notwithstanding, there are several averments in the Amended Plaint which show that the Plaintis are purporting to agitate a cause of action on behalf of Ogega’s estate. In particular, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 8

page 8 of 12

paragraphs 6 to 12 as well as the reliefs sought make that stance manifest. They averred therein that despite the suit property remaining registered in her name, Gesare apportioned it to “beneciaries” who took possession of their respective portions and that Ogega was one of the “beneciaries.” That Ogega later relocated to Eldoret and that he thereafter learnt that the Defendant had unlawfully occupied his said portion. 63. I nd it necessary to reproduce relevant parts of some of the paragraphs of the Amended Plaint: 9. The plaintis contend that as much as the late Joseph Ogega Mogeni was desirous of protecting his allocated portion, [he] … started ailing hence [he] could not … protect his portion either by way of a suit or otherwise. 10. … unfortunately … Ogega … died on 24th November, 2024 and eorts of both the plaintis and [his] family members … to inter his remains in his allocated portion … have been thwarted by the defendant, who has insisted that he is the rightful owner of … [Ogega’s] portion … and as a result, … [Ogega's] remains are to date preserved at Kenyatta National Hospital mortuary ... 11. The plaintis claim is for an order of eviction against the defendant to pave way for vacant possession to enable … Ogega … to be buried in his portion of … 12. The plaintis aver that despite demand and notice of intention to sue given, the defendant has failed, refused and neglected to give vacant possession of the portion … to enable the plaintis and the family … to inter the remains of Ogega ... 64. Beyond the foregoing express averments in the Amended Plaint, the Plaintis and their witnesses testied repeatedly that they led this case to claim land on behalf of Ogega and so that they could bury his remains on the portion. Considering that they pleaded that Gesare had apportioned the portion to Ogega, I am persuaded that the Plaintis are attempting to agitate Ogega’s case. 65. The Plaintis cannot validly do so without being legal representatives of Ogega’s estate. They lack locus standi as far as Ogega’s estate is concerned. In turn, the Court lacks jurisdiction to hear and determine the Plaintis’ case to the extent that they purport to agitate a cause of action vested in Ogega’s estate. The reliefs that they seek cannot be issued by this Court. 66. The next issue for determination is whether customary trust has been established. Trust is a question of fact which must be established through evidence. A party who alleges its existence must prove it. In Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another (supra) the Supreme Court distilled the key considerations in customary trust as follows: Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benet of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: 1. The land in question was before registration, family, clan or group land 2. The claimant belongs to such family, clan, or group https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 9

page 9 of 12

3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous. 4. The claimant could have been entitled to be registered as an owner or other beneciary of the land but for some intervening circumstances. 5. The claim is directed against the registered proprietor who is a member of the family, clan or group. 67. The Defendant neither pleaded nor established that he belongs to the same family or clan as Gesare, who is the registered proprietor. In fact, his case is that he is a purchaser. His relationship with Gesare’s family is remote and his claim of customary trust is at best adventurous. I nd that customary trust has not been established. 68. Has adverse possession been established? The Defendant averred in his counterclaim that he is entitled to the portion of the suit property through adverse possession. At prayer (a) of the counterclaim, he pegged his claim on actual possession “for a period of 18 years.” Whereas he did not expressly use the phrase “adverse possession” in his prayers, I am alive to decisions of the Court of Appeal allowing adverse possession without insisting on strict requirements of pleading it. See Gulam Miriam Noordin v Julius Charo Karisa [2015] eKLR and Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR. I also bear in mind that the power of the Court to do substantive justice and conclude disputes is wider today than before. I will therefore consider whether the Defendant has established adverse possession. 69. The Court of Appeal discussed the law on adverse possession in the case of Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR as follows: Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It must start with a wrongful dispossession of the rightful owner. (See comparative Indian cases of S. M. Kenni alias Tamanna Sabeb – v- Mst Bibi Sakina AIR 1964 SC 1254; and Parsimi – v- Sukhi, 1993 4 SCC 375). 70. 39. In Wambugu –v- Njuguna, (1983) KLR 173, this Court held that adverse possession contemplates two concepts: possession and discontinuance of possession. It was further held that the proper way of assessing proof of adverse possession is whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period, and not whether or not the claimant has proved that he or she has been in possession for the requisite number of years. 40. A person who claims adverse possession must inter alia show: (a) on what date he came into possession. (b) what was the nature of his possession? (c) whether the fact of his possession was known to the other party. (d) for how long his possession has continued and (e) that the possession was open and undisturbed for the requisite 12 years. There is no dispute that the Defendant is in possession. It is for that reason that the Plaintis sought his eviction. His case is that he took possession of the 5.7 acre portion in the year 2006 having https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 10

page 10 of 12

purchased it from Ogega through sale agreement dated 4th January 2006. The Plaintis’ witness PW4 specically testied that he was aware of a sale agreement between the Defendant and Ogega and that the Defendant had been in occupation since the year 2012. Similarly, Ogega’s widow (PW5) testied that they relocated in the year 2006 and that they did not have any caretaker on the portion after the year 2010. Even if we were to reckon time from 2012, the requisite 12 years of possession had been met by 2025 when the counterclaim was led. 71. At the foundation of adverse possession is the requirement that the claimant’s possession be hostile to the title of the registered proprietor. Ordinarily, entry and possession pursuant to a sale agreement is deemed to be by permission and does not therefore amount to adverse possession. Time for purposes of adverse possession does not run in favour of such a claimant as long as his presence on the land is by permission of the proprietor. Nevertheless, once a purchaser completes paying the purchase price, his possession and occupation of the purchased property is no longer by permission of the seller. In that case, time for purposes of adverse possession starts to run in favour of the purchaser from the moment of nal payment of the purchase price. See Public Trustee v Wanduru Ndegwa [1984] eKLR. 72. As noted earlier, the registered proprietor is Gesare. The adverse possession claim is against the registered proprietor. Gesare’s estate is represented in this matter by the Plaintis who hold Limited Grant of Letters of Administration Ad Litem in respect of the said estate. Thus, the Defendant’s adverse possession claim is lawfully prosecuted against the Plaintis. 73. Regarding the aspect of payment of the purchase price, I note that the agreement specied the consideration to be KShs 2,360,000. Although the Plaintis attempted to disown the agreement, I note that there is ample evidence on record that the agreement was prepared with the involvement of and in the presence of local administrators who testied to vouch for it. While Ogega’s widow (PW5) disowned her signature on it, her involvement was as a witness and not a party to it. 74. Based on the testimonies of the Defendant, DW2 and DW3 who were Ogega’s siblings and DW5 who was the area Assistant County Commissioner, I am satised that the agreement was executed and that the nal instalment of the purchase price was paid on 15th February 2011 at the Chief’s oce at Nyansiongo. I am not persuaded by the testimony of the Forensic Document Examiner. The agreement states that the Defendant purchased Ogega’s portion measuring 5.7 acres. Even if the Plaintis’ case had not failed for want of locus standi, it would have in any event failed on account of the manifest sale of the portion to the Defendant. 75. Having completed paying the purchase price on 15th February 2011, time for purposes of adverse possession ran in favour of the Defendant from the said date. There is no evidence that the Defendant’s possession was ever interrupted or that the possession was not open and peaceful. On the contrary, it is apparent that Ogega sold the portion, abandoned possession in the Defendant’s favour and relocated. I am satised that the Defendant has established adverse possession and is therefore entitled to relief. 76. The Defendant’s claim is in respect of Ogega’s portion of the suit property. From the copy of the register which was produced, the suit property measures 6 hectares which translates to 14.826 acres. There is evidence on record that Gesare shared the suit property equally to Ogega and two other siblings. Thus, Ogega’s portion which he could lawfully sell to the Defendant was 4.942 acres as opposed to 5.7 acres. The Defendant did not plead any claim against Ogega’s two other siblings or in respect of the portions that they occupy. I will only award the Defendant 4.942 acres. 77. In view of the foregoing discourse, I make the following orders: a. The Plaintis’ case is dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 11

page 11 of 12

b. Judgment is entered for the Defendant (Charles Gekonge Nyoka) as follows: i. The Defendant is entitled to ownership of the portion of land measuring 4.942 acres from the parcel of land known as Nyansiongo Settlement Scheme/72 by adverse possession. ii. It is hereby declared that the Defendant is the legal owner of the portion of land measuring 4.942 acres from the parcel of land known as Nyansiongo Settlement Scheme/72. iii. A permanent injunction is hereby issued restraining the Plaintis (Luciana Moraa, Bonface Mogeni and the estate of Gesare Mogeni (deceased)) by themselves, agents, servants, and/or anyone claiming under them from entering into, reentering, trespassing onto, building structures, cultivating, converting, or abusing the Defendant’s rights in the 4.942 acres portion of the parcel of land known as Nyansiongo Settlement Scheme/72, or interring and/or burying the remains of Joseph Ogega Mogeni (Deceased) in the said portion. iv. The Defendant shall have costs of the suit. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 1ST DAY OF OCTOBER 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Amati for the Plaintis Mr Ochoki for the Defendant Court Assistant: B Kerubo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6026/eng@2026-10-01 12

page 12 of 12