Charles Lukoye Shiyuka v James Muyanda Nduku & 2 Others

No. Butsotso/Shikoti/2648 (the suit property), by way of adverse possession, having occupied it openly, peacefully, and continuously for a period exceeding twelve (12) years. He further sought an order that he be registered as the sole proprietor of the suit property in place of the defendants, in whose names the land is currently registered. 2. The plaintiff also sought orders directing the transfer of the suit property into his name, compelling the defendants to execute the necessary transfer documents, permanently restraining the defendants from entering, using, or interfering with the suit property, and awarding him the costs of the suit. 3. In response, the defendants filed a replying affidavit sworn on 15th March 2022 by George Mzee Maramba Muyanda, the 2nd defendant on his own behalf and on behalf of his co-defendants. He deposed that the suit property was originally registered in the name of their late father, Adriana Muyanda Maramba, who died on 11th February 2012. That following the conclusion of Kakamega High Court Succession Cause No. 34 of 2014, 2

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the property was transmitted and registered jointly in the defendants' names. 4. The defendants denied the plaintiff’s allegation that he was in occupation of the suit property. They asserted that the plaintiff resides on Land Parcel No. Butsotso/Shikoti/14329, which is registered in the name of his son, David Ambale Shiyuka, where he has constructed his home and carries out his activities. They further maintained that Land Parcel No. Butsotso/Shikoti/14329 is distinct from the suit property and is separated by a public access road, making the plaintiff's claim that he occupies Land Parcel No. Butsotso/Shikoti/2648 false and unfounded. 5. The defendants further contended that the plaintiff has never occupied or utilized the suit property openly, peacefully, or continuously for a period exceeding twelve years. They argued that the plaintiff’s claim to the land had previously proceedings, been where litigated the in plaintiff's the succession application was dismissed. They maintained that they are the registered proprietors and are in actual occupation and use of the 3

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suit property, and therefore urged the court to dismiss the Originating Summons with costs. 6. The matter proceeded to hearing by way of viva voce evidence. Each party testified as the only witness in support of their respective cases. Plaintiff's evidence 7. PW1, Charles Lukoye Shiyuka, adopted his witness statement as part of his evidence. He testified that in 1972, he purchased a quarter-acre portion of land to be hived from Land Parcel No. Butsotso/Shikoti/388 from the late Adriana Muyanda for Kshs.650/=. That upon purchase, he immediately took possession of the land, established his home thereon, and developed it. He stated that the original parcel was later subdivided in 1985, resulting in Land Parcel Nos. Butsotso/Shikoti/2647 and 2648. That although the title remained in the name of the deceased, he continued occupying Land Parcel No. Butsotso/Shikoti/2648 and did not pursue a transfer because there was no dispute over his occupation and he had limited funds at the time. 4

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8. On cross-examination, PW1 testified that he had misplaced the sale agreement under which he acquired the land. He maintained that there had never been any dispute between him and the family of the late Adriana Muyanda during the deceased's lifetime. He further stated that he registered a restriction against the title in 2012 to prevent any dealings with the property before succession proceedings were concluded. He also stated that there had never been any dispute over the land before the area chief. 9. PW1 further succession testified proceedings that he before participated the High in the Court at Kakamega, where he asserted ownership of the suit property. However, his application was dismissed and the status quo orders previously issued were discharged. He stated that following confirmation of the grant, the suit property was transferred into the names of the defendants, a decision he disputes. 10. He further testified that although his son, David Ambale, owns Land Parcel No. Butsotso/Shikoti/14329, he occupies both Land Parcel Nos. Butsotso/Shikoti/14329 5

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and 2648. According to him, the house in which he currently resides stands on Land Parcel No. Butsotso/Shikoti/2648, while another house is situated on his son's land. He denied the existence of a public access road separating the two parcels, explaining that the original road had been closed after he purchased it. 11. PW1 acknowledged that the 1 st defendant had since died and that the present defendants were not parties to the original sale agreement. He testified that following the death of the vendor, he approached the deceased's family to commence succession proceedings so that the land could be transferred to him, but the deceased's sons rejected his claim. That he consequently participated in the succession cause and later filed an application for revocation of grant after he was excluded from the list of beneficiaries. That application was dismissed, and he was advised to pursue his claim before the Environment and Land Court. He maintained that after confirmation of the grant, the defendants transferred the property into their names, thereby disregarding his purchaser's interest despite his occupation of the land for over forty years. He 6

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further stated that the defendants intend to evict him from the suit property. 12. Upon re-examination, PW1 reiterated that he entered the suit property in 1972 and has remained in uninterrupted occupation ever since. He stated that his residential house is situated on the suit property. He explained that he did not process the transfer earlier because he was employed in Meru. He further confirmed that he lodged the restriction after the death of the vendor to safeguard his interest pending succession proceedings. He maintained that there is no access road separating the two parcels because he lawfully acquired and closed it. Finally, he stated that the pending criminal case concerns allegations of forgery, in which he is the complainant and the 2nd defendant is the accused. He emphasized that the defendants have never prevented him from using the suit property and have never occupied or utilized themselves. That marked the close of the plaintiff’s case. Defence evidence 7 it

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13. DW1, George Mzee Maramba Muyanga, testified on his own behalf and on behalf of the 3rd defendant. He stated that he is a son of the late Adriana Muyanga and a brother to the deceased 1st defendant. He testified that the plaintiff does not occupy the suit property but resides on a different parcel of land, namely Parcel No. Butsotso/Shikoti/14329, as evidenced by the official search produced before the court. He further stated that there have been longstanding disputes between the parties over the suit property, including proceedings before the area chief and the criminal court. 14. On cross-examination, DW1 testified that he has known the plaintiff as a neighbor since 1972 and that the plaintiff has always resided on Land Parcel No. Butsotso/Shikoti/14329. He stated that disagreements over Land Parcel No. Butsotso/Shikoti/2648 began during the lifetime of their late father, although he conceded that he had no documentary evidence to prove that such disputes existed between the plaintiff and the deceased. He further acknowledged that the Chief's letter recognized the plaintiff as a beneficiary during the succession proceedings, which 8

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were concluded in 2019. Nevertheless, he maintained that the plaintiff's claim of having purchased the suit property was untrue. 15. Upon re-examination, DW1 reiterated that Land Parcel No. Butsotso/Shikoti/2648, a subdivision of the original Land Parcel No. Butsotso/Shikoti/388, is registered in the names of the defendants and that he is the one in actual occupation and use of the property. He maintained that a public access road separates the suit property from the plaintiff's land and that the plaintiff's house is situated on his son's parcel. He further stated that from the time the defendants obtained title to the suit property until the filing of this suit, the statutory period of twelve years had not elapsed. 16. Upon the close of the hearing, the court directed the parties to file written submissions. On 19 th February 2026 parties were granted 14 days to file and exchange written submissions. No submissions were filed by the plaintiff while the defendants filed their submissions dated 14 th March 2026, which the court has carefully considered. Defendants’ submissions. 9

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17. The defendants submitted that the suit against the 1 st defendant was incompetent, as he died on 21 st July 2021 during the pendency of the proceedings and no legal representative was appointed or substituted in his place. They further submitted that the suit property was lawfully transmitted to the defendants following the conclusion of Kakamega High Court Succession Cause No. 34 of 2014, having originally been registered in the name of their late father, Adriana Muyanda Maramba. Relying on section 26(1) of the Land Registration Act, they argued that the certificate of title issued in their favor constitutes prima facie evidence of absolute ownership, which had not been impeached on any of the statutory grounds. 18. The defendants further submitted that the plaintiff had previously pursued his claim over the suit property in the succession proceedings through an application dated 16 th May 2016, which was dismissed by the High Court on 12 th June 2019. They argued that the plaintiff subsequently instituted the present suit after the status quo orders issued in the Succession Cause were discharged, without disclosing all the material facts. They maintained that the plaintiff 10

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failed to prove that he had been in actual, peaceful, open, and uninterrupted occupation of the suit property, contending instead that he resides on Land Parcel No. Butsotso/Shikoti/14329, which is registered in the name of his son and is separated from the suit property by a public access road. 19. Lastly, the defendants submitted that the plaintiff had failed to satisfy the legal requirements for acquisition of title by adverse possession. They relied on the decisions in Nanzushi (Suing on her own behalf and as the Administratrix of the Estate of Joseph Nanzushi Keya – Deceased) v Mudogo & 3 Others [2023] KEELC 19811 (KLR) and Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR, arguing that the plaintiff had not demonstrated the date he took possession of the suit property, the nature of his possession, that such possession was known to the registered owner, or that it had been open, continuous, exclusive, and uninterrupted for the statutory period of twelve years. They therefore urged the court to dismiss the Originating Summons with costs. Analysis and determination 11

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20. The court has carefully considered the pleadings, evidence and rival submissions presented in this case. The 1st defendant passed on during the pendency of the suit and no substitution in respect of his estate was done. The suit as against the 1st defendant has therefore abated as more than a year since he was said to have passed on has already lapsed. Therefore, the court’s mandate in the determination of this suit will only be in regard to the plaintiff’s claim as against the 2nd and 3rd defendants. The issues that arise for determination are; a) Whether the plaintiff has proved that he has acquired title to Land measuring 0.15 Ha from Parcel No. Butsotso/Shikoti/2648 by way of adverse possession. b) Whether the plaintiff is entitled to the reliefs sought in the Originating Summons. c) Who should bear the costs of the suit. 1.Claims for adverse possession are predicated on provisions of the Limitation of Actions Act. Section 7 thereof provides that: 12

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“An action may not be brought by any person to recover land after the end of 12 years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person.” 2. Section 13 provides as follows; “(1) A right of action to recover land does not accrue unless the property is in possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under Section 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land. 13

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(3) For the purposes of this Section, receipt of rent under a lease by a person wrongfully claiming, in accordance with Section 12(3) of this Act, the land in reversion is taken to be adverse possession of the property.” 3.Section 17 states as follows; “Subject to Section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.” 4. Section 38 (1) and (2) provides as follows; “Where a person entitled by claims adverse to have possession become to land registered under any of the Acts cited in Section 37 of the Act, or property comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” 5. Therefore, where a trespasser continuously and exclusively occupies another person’s land, openly as of right and without the owner’s permission for a period of 14

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12 years, such a trespasser may apply to this court to become the registered proprietor of such land. 6. The rationale for the doctrine of adverse possession was stated in the case of Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR where the Court of Appeal cited with approval the case of Adnam v Earl of Sandwich (1877) 2 QB 485 where it was held as follows; “The legitimate limitation is in object no of all statutes doubt to quiet of long continued possession, but they all rest upon the broad and intelligible principles that persons, who have at some anterior time been rightfully entitled to land or other property or money, have, by default and neglect on their part to assert their rights, slept upon them for a long time as to render it inequitable that they should be entitled to disturb a lengthened enjoyment or immunity to which they have in some sense been tacit parties.” 7. In Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR, the Court of appeal described adverse possession in the following terms; 15

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“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the Adverse Possession is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 8.In Kasuve v Mwaani Investments Ltd & 4 Others [2004] 1 KLR 184, the Court of Appeal held that: "In order to be entitled to land by adverse possession the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of twelve years either after dispossessing the owner or by the discontinuation possession by the owner on his own volition." 9. In the instant case, the plaintiff’s case is that he had been in exclusive occupation of land measuring 0.15 16 of

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Ha part of parcel No. Butsotso/Shikoti/2648 since 1972, having put up houses thereon. In response, the defendants argued that the plaintiff has never occupied the suit property, but instead, he is in occupation of parcel No. Butsotso/ Shikoti/14329 registered in the name of his son, one David Ambale Shiyuka and that the two parcels were separated by a road. In evidence, the plaintiff maintained that he occupied both parcels and that he had houses on both. 10.To prove adverse possession, an applicant ought to demonstrate with clarity, the date of entry and clearly show exclusive and uninterrupted possession for a period of 12 years. Besides, an applicant also ought to plead and prove the nature of occupation. In this case, while there was contention as to where the plaintiff’s occupation was, whether on parcel No. Butsotso/Shikoti/ 2648 or on Butsotso/Shikoti/14329; the plaintiff did not bother to avail any evidence to show that the location of his occupation was on parcel No. 2648 and not 14329 as alleged. An expert’s report would have clarified the location as to where exactly 17

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the plaintiff’s occupation is. No such report was availed. The documents produced by the plaintiff which included mutation forms, chief’s letter, searches and green cards cannot clarify the question of location of the plaintiff’s occupation. 11.Therefore, there is no evidence before this court to prove that the plaintiff has ever been in exclusive possession of parcel No. Butsotso/Shikoti/2648. That being the case, I am not persuaded that the plaintiff has been in exclusive possession of the suit property for a period exceeding 12 years. 12.In the premises, I find no merit in the suit herein, which I dismiss with costs to the defendants. 13.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN MICROSOFT COURT/VIRTUALLY TEAMS VIDEO THROUGH CONFERENCING PLATFORM THIS 23RD DAY OF SEPEMBER 2026 A. NYUKURI JUDGE 18

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In the presence of; Mr. Osango for the defendants No appearance for the plaintiff. Court Assistant- Delphine 19

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