Wesley Arap Tonui v Samwel Kipngeno Birir

a. That pending determination the of hearing this and suit the Defendant by himself of his servants (sic) and or agents be temporarily restrained from trespassing, fencing off, or blocking the access road to the Plaintiffs’ quite (sic) possession over part of the Defendants property known as Land Title Number Kericho/Kapsuser/1992 measuring 0.27 acres forming the access road to the Plaintiff’s property known as Land Title Number Kericho/Kapsuser /1627.(sic) b. That the court make(sic) a determination that the title of the said Samuel Kipngeno Birir in Land Title Number Kericho/Kapsuser/1992 measuring one quarters( sic) of an acre (0.23) has been extinguished by the Plaintiff’s adverse possession thereof for a period of more than 12 years in terms of section 17 and 38 of the Limitation of Actions Act. c. That the Plaintiff has acquired part of the interest in Land Parcel Kericho/Kapsuser/1992 cumulatively by ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 2 of 112

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his adverse possession for a period of more than 12 years from at least (sic) the 10th of August 1970 cumulatively adding up to 52 years. d. That An order do issue requiring and directing the Land Registrar, Kericho County to sub-divide and register the Plaintiff Wesley Arap Tonui as the registered owner of one quarter (sic) (0.27) of an acre of Land Title Number Kericho/Kapsuser/1992 in place of Samuel Kipngeno Birir, and in place of any other person succeeding Samwel Kipngeno Birir. e. That the defendant be held responsible for the payment of costs to the Defendant. (sic) 3. The application is supported by the Affidavit sworn by WESLEY ARAP TONUI (The Plaintiff) on 25th July 2022. FACTUAL BACKGROUND. 4. On 23rd May 2024 the Court issued directions that the Originating Summons shall be canvassed by way of oral evidence. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 3 of 112

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5. The court further directed that the Originating Summons shall be deemed as the Plaint and the Replying affidavit sworn by the Respondent shall be deemed as his Statement of Defence. THE PLAINTIFF’S CONTENTION. 6. He contends that he entered into a memorandum for sale with the Defendant, Samwel Kipngeno Birir, on 10th August, 1970 for the purchase of a quarter portion of the property known as Kericho/Kapsuser/1992, at an agreed consideration of Kshs. 600/= which was paid and acknowledged by the Defendant. 7. He further contends that immediately after the purchase, he took possession of the said property, planted trees on it, and has been harvesting and replanting trees on the property for the past 52 years. 8. It is also his contention that he bought the property specifically to create an access road to his adjacent property. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 4 of 112

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9. He also contends that he has curved out part of the property as an access road leading to his adjacent property, where his house is located. 10. It is his contention that the Defendant himself placed him in occupation of the property immediately after receiving the purchase price, but has been evasive on transferring the said property to his name. 11. The Plaintiff contends that sometime in the year 2021, the Defendant and his son started staking a claim over the property, and that on 27th June 2022, they brought surveyors to carry out survey work on the property. 12. He further contends that the Defendant wrote to him a letter dated 23rd July, 2022 stating that he would fence off the property, and that on the same date, the Defendant brought in individuals who placed posts to fence off the said property. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 5 of 112

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13. It is his contention that he has been in actual, uninterrupted occupation of the property for the past 52 years, and that the Defendant did not dispute the said occupation until his son made an unreasonable claim over the property recently. 14. The Plaintiff also contends that in the year 2001, the Defendant had made the same claims, which were reported to the Chief, Kipchebor Location, and that a hearing took place with a finding in his favour; where the Defendant further requested an additional Kshs. 10,000/= to process a title deed over the property in his favour, but has to date never taken any action. 15. It is further his contention that it is not true, as claimed in the Defendant's letter, that the issue is one of a boundary, but rather that the issue is over the legal purchase of the property and the subsequent adverse possession of the portion thereof. 16. He concludes his deposition by contending that the prayers sought in the suit are just and should be granted. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 6 of 112

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THE DEFENDANT’S RESPONSE. 17. The Defendant, filed a Replying Affidavit to the Originating Summons. It is sworn on 25th July, 2022. 18. He deposes that the suit arose out of an alleged purchase of a portion of agricultural land from him by the Plaintiff in 1970, from an unspecified parcel. 19. He also deposes that his true place of abode is Kipchebor village, Kipchebor Ward, Kericho County, and that he is the registered proprietor of the whole parcel known as L.R. No. Kericho/Kapsuser/1992. A copy of the title is annexed. 20. On the Memorandum of Sale referred to in paragraph 2 of the Supporting Affidavit, he replies by deposing that it concerns agricultural land subject to the Land Control Act, and that the Memorandum dated 10th August, 1970 is written in a language that has not been translated for the Court and adds that the suit property was only registered in 1992. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 7 of 112

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21. It is his further deposition that the alleged sale required consent of the Land Control Board and that no such consent was ever obtained and adds that failure to obtain consent within six months rendered the transaction null and void ab initio. 22. He also deposes that once consent was not obtained, the agreement became void, non-binding and unenforceable, such that there was nothing capable of transfer, and that the limitation period for obtaining consent has since expired. 23. He also deposes that there is a contradiction in the Plaintiff's own case, in that the Memorandum attached by the Plaintiff refers to a purchase of ¾ of an acre while the Plaintiff's supporting affidavit refers to ¼ of an acre and adds that the said discrepancy that has not been explained. 24. He further deposes that it is not true that the Plaintiff took possession or occupation of the suit land since registration, and that the Plaintiff has never been in occupation or possession of ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 8 of 112

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the suit land at any time and adds that the ownership of the developments and the trees on the property vests in him. 25. He also deposes that the Plaintiff's own supporting affidavit admits the suit land was never transferred to him and was never put into his possession or occupation. 26. He deposes that both parties have had a boundary dispute which existed and continues to exist and that he notified the relevant authority to effect rectification of the boundary by inviting the County surveyors to re-establish and fence the boundaries, a re-establishment the Plaintiff disputes to date. 27. He also deposes that both parties have their own access roads and are not landlocked. 28. The Defendant further deposes that he has remained in occupation and possession of the suit land, which is fully developed and utilized. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 9 of 112

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29. He deposes that the sale dated 4 th May, 2001 appears to be a counter-offer to the 1970 sale of an unspecified parcel, that no interest was ever created in L.R. Kericho/Kapsuser/1992 in the Plaintiff's favour since the sale agreement does not refer to this parcel, and that there is no evidence the parcel or any part of it was ever transferred to the Plaintiff. 30. He also deposes that boundary issues fall within the jurisdiction of the Land Registrar and not the Court, and that there is no legal basis for an ad hoc committee chaired by a Chief to determine land matters outside the Land Registration Act. 31. He further deposes that he has put the Plaintiff on notice that he will be cross-examined on his supporting affidavit at the first hearing and adds that the Plaintiff has not exhibited any mutation form from a qualified surveyor or payment receipts for any survey undertaken in respect of the alleged subdivision. 32. It is his deposition that a court cannot be invited to endorse or ratify an illegality and that the Plaintiff's claim cannot lie in ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 10 of 112

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adverse possession because the Plaintiff is a trespasser on the land and further that the registered proprietor's son is not a party to the suit. 33. He also deposes that the Plaintiff has hoodwinked the Court by framing his claim as adverse possession rather than disclosing that it is, in truth, a boundary dispute, and that the orders obtained were procured illegally through material non- disclosure of facts concerning an alleged sale of unspecified property. 34. He further deposes that no licence conferred a right to exclusive possession or interest in the suit land and that no legal interest was ever created in the suit land and adds that the Plaintiff has no right or title to it. 35. He deposes that the Plaintiff has never been a creditor of the estate, and that even if the Plaintiff's claim is founded on an agreement of sale, it cannot lie in adverse possession. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 11 of 112

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36. He also deposes that there has been no continuous, uninterrupted, notorious and exclusive occupation by the Plaintiff and adds that the Plaintiff's occupation, if any, is that of a trespasser, and that the occupation was neither peaceful nor continuous, having been repeatedly interrupted after the Plaintiff was asked and warned over his trespass, which he ignored. 37. He ends his deposition by stating that it is self-evident that the Plaintiff concealed material facts from the Court and intentionally misled it into granting the interim injunctive orders, and that the Plaintiff's claim is not founded on purchase, possession or occupation, nor on any right of access, as alleged. PLAINTIFF’S RESPONSE TO THE DEFENDANT’S REPLYING AFFIDAVIT. 38. In response to the Defendant’s Replying Affidavit sworn on 14 th September 2022 the plaintiff filed a supplementary affidavit sworn on 5th December 2022. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 12 of 112

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39. He deposes that it is not true that the dispute before the court is one of boundaries as claimed by the Defendant because the property making up the claim herein has been in his uninterrupted possession for the past fifty years, that the property forms part of the access road to his property and he goes on to state that he will, at the hearing of the case, request for a site visit by the court to determine the same. 40. He further deposes that at the time of purchase of the property from the Defendant, the Defendant was yet to obtain his title to the property and agreed to make a subdivision of the property on the 4th of May 2001, upon which he advanced the Defendant a further Kshs. 10,000/= which amount the Defendant acknowledged receipt of in the presence of a witness. He deposes that he shall be calling the witnesses to the agreement to testify on his behalf. 41. It is his deposition that the Defendant has refused to complete the subdivision of his property and transfer it to his name and ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 13 of 112

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that the Defendant cannot hide under the fact that the same was a controlled transaction requiring a Land Control Board Consent, when it was his duty to have done the subdivision of the property and obtained the consent to transfer after being paid the requisite fees. 42. It is also his deposition that the suit herein is rightly one of adverse possession, since he has been in uninterrupted possession of the property for over 50 years, notwithstanding that the same was a subject of a sale agreement. 43. He further deposes that he has planted and harvested trees on the said property over the years and that at some point he even sold part of the harvest to the Defendant's son, the same son who has been the catalyst to the dispute. 44. He deposes that the Defendant cannot now claim the property, having taken no action either to take possession of the property even after obtaining title in 1992 as claimed in his affidavit and that he cannot take action now. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 14 of 112

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45. It is also his deposition that from the surveyor's own findings, the property in dispute measuring 0.27 Acres is clearly in his possession, and that it is not a boundary dispute but one in which he has a right over through adverse possession. 46. He ends his deposition by urging the court to order the subdivision of the Defendant's property and a title for the portion for which he is rightfully in occupation, transferred to his name. PLAINTIFF’S EVIDENCE. 47. Wesley Tanui, herein after referred to as PW1, introduced himself by stating that he is a Pastor, retired and lives in Chepkolon. 48. He states that he instituted this suit vide the Originating Summons Application dated 27th July, 2022 and that the same is supported by an affidavit sworn on 25 th July, 2022. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 15 of 112

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49. He also stated that he subsequently filed a supplementary affidavit sworn on the 5 th December, 2022 and a also filed a supplementary list of documents. 50. He prayed that the courts admit the affidavits and documents annexed to them in evidence which prayer the court acceded to. Consequently, the documents were marked and produced as follows; a. Sale agreement dated 10th August 1970 as Exhibit P1(a) and its translation into the English Language Exhibit P1 (b). b. Photographs of the suit land as Exhibit P 2(a) and (b). c. An undated letter addressed by the Defendant to the area Chief as Exhibit P3. d. A letter dated 20th June 2022 from chief Kipchebor location to the District Surveyor as Exhibit P4. e. Survey maps of Kericho/Kapsuser/1992 as Exhibit P5 (a) and (b). ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 16 of 112

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f. Certified copy of title Number Kericho/Kapsuser/1992 as Exhibit P6. 51. When referred to the Sale Agreement produced as Exhibit P1, PW1 testified that he purchased ¾ of an acre. 52. Upon clarification being sought by the court on the translation of the agreement i.e. Exhibit PI(b), PW1 conceded that it states that the land purchased measures 0.3 acres. 53. It was his further evidence that his claim was for the portion of the suit parcel that he fenced on the 10 th August 1970 and the access road. 54. It was also his evidence that when he purchased the suit land Kipngeno Borir (the vendor) and him fenced it. He added that thereafter, the agreement was signed. 55. It was PW1’s evidence that one Ezekiel who works a surveyor also signed the agreement as a witness. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 17 of 112

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56. He confirmed that the suit land was measured after being purchased. 57. It was also his evidence that the vendor told him to await issuance of a title deed but the same took a long time. 58. It was further his evidence that the sale agreement shows that there was an additional amount of Kshs. 10,000/= that was paid on the 4th of May 2001 which was supposed to cater for processing the title deed. He added that he had a witness who attested payment of the said amount and that Samuel Birir and the village elder also signed the said agreement. 59. He testified that he was not issued a title deed and the Defendant’s son sent him back the money through mobile money transfer after after 12 years. It was his evidence that upon questioning what the money was for, he returned it. He explained that this happened on 18th March, 2022. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 18 of 112

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60. PW1 went on to testify that he has developments on the suit parcel which include houses and a tree and banana plantation and added that he is still in possession of the suit land and has been from the year 1970 to date and that he only wants the title deed. 61. When he was referred to Exhibit P5 ( the survey map), PW1stated that the shaded part is the suit land and that he had other properties which was not shown in the map. He went on to explain that the Defendant’s brother had sold his land to him and he (The Defendant’s brother ) moved to Chepseon . 62. PW1 narrated that subsequently, the Defendant sold him a portion of his land for use as an access road and he added that the Defendant also uses it. 63. Upon cross-examination, PW1 confirmed that he bought land from Samuel Kipngeno Arap Birir . 64. He also confirmed that he bought land on 10th August 1970. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 19 of 112

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65. He further confirmed that he did not know the parcel number of the land he purchased. 66. He admitted that the owner of land showed it to him and allowed him into it through the sale agreement. 67. He also admitted that in the agreement there is no provision of. access road. 68. PWI further admitted that in his agreement Exhibit P1(a)) states that he bought ¾ of an acre. 69. He stated that he is not claiming the title deed in respect of the suit land and added that his claim is for adverse possession. 70. PW1 also stated that paragraph 1 of the Originating summons states that the suit property Kericho/Kapsuser/1992 measures 0.27 acres. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 20 of 112

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71. He confirmed that what he knows is what is in the agreement and that what he bought is what he occupies. 72. He also confirmed that he also owned parcels of land 1630 and 1627. 73. PW1 further confirmed that he seeks an access road from the suit land to 1627 and also admitted that he is not land locked. 74. When he was refereed to Exhibit P5(b), he Admitted that the access road is 9 yards in width and stated that it is less than a kilometer in length. 75. He also admitted that he owns land parcel number 1627 while land parcel No 1992 belongs to Samwel Kingeno Birir. 76. PW1 further admitted that there is a road which touches his parcel of land and added that he is neighbours with the Defendant. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 21 of 112

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77. He confirmed that the map does not show an access road and added that he purchased the land from Samwel Kipngeno Birir. 78. He also confirmed that in the year 1970 he did not have the suit land registered and confirmed that in the year 2001 he paid a sum of Kshs. 10,000 as title processing fees. 79. PW1 stated that he was not buying Kericho/Kapsuser/ 1992 in the year 1970 but reiterated that he bought the suit land in 1970. 80. When he was referred to Exhibit P6, he admitted that it made reference to a sub-division of 1631 and stated that he did not know who the owner of land parcel number 1631 is 81. He confirmed that he needed an access road because the Defendant sold him parcel number 1627. He confirmed that he had no evidence to confirm purchase of the parcel no. 1627 and reiterated that there was no access road on the suit land. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 22 of 112

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82. PW1 stated that he has planted trees on the suit land and added that he planted the trees in 1975. 83. PW1 also confirmed agricultural and that the land he purchased was also confirmed that he did not get consent from the land control board and added that he was not aware that he ought to have acquired the Land Control Board consent within a period of three months. 84. He also confirmed that his house is not in the suit parcel as it is located on the farm and reiterated that his claim is for land. 85. When referred to an application dated 25 th July, 2023 under paragraph (b) of the certificate of urgency he stated that he is not seeking access road but he wants land that he purchased. 86. When PW1 was referred to line three of paragraph 1 of the originating summons, he denied that his claim is for an access road not to be blocked. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 23 of 112

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87. When PW1 was referred to the second last line of Paragraph 1 of the Originating Summons, he admitted that the access road is the land that was sold to him. 88. PW1 was further referred to the third line in ground (c) on the face of the Originating Summons which stated that the access road to the Plaintiff’s larger property is within the Defendant’s property and he confirmed that he has been using the access road for 52 years and added that he has also planted and has been harvesting trees on the access road for 52 years. 89. He also stated that he planted the trees in the year 1952 and has harvested them 52 times however, he had no evidence on record to confirm the same. 90. When he was referred to ground ( e) of the Originating Summons which states in part that the Plaintiff purchased the land to cater for the access road onto his greater property, he ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 24 of 112

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admitted that what is stated therein is true and added that the road of access is being used by him alone. 91. He confirmed his parcel is 1627 and stated there is a main road passing next to his land which main road is being used by everyone. 92. He also confirmed that the suit parcel goes into his land and also confirmed that parcel No. 1627 is next to highway. 93. He further confirmed that the suit parcel (access road) is also near main road. 94. PW1 confirmed that when he bought the Parcel No. 1627, the was no access road and that the said access road was created after purchasing land from the Defendant. 95. PW1 reiterated that he wants land and not the access road and added that the main highway passes through the suit land ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 25 of 112

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and that he bought it when the owner was using the main highway. 96. PW1 confirmed that his parcel of land is not land locked. 97. When PW1 was referred to Exhibit P3 he stated that he had never seen the letter. 98. When he was referred to Exhibit P5(a), PW1 stated that this map was drawn by the surveyor and stated that he saw the map in court when the case was going on and confirmed that the map shows boundaries. 99. PW1 further confirmed that the shaded part on the said map is the parcel that he bought and the suit parcel of land is on the lower side and further confirmed that the shaded part is what he is laying claim to. He went on to state that he can see the boundaries of the suit land and added that it belongs to Samuel Birir. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 26 of 112

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100. PW1 reiterated that he has not has not encroached the suit land and added that that what he bought is what he was given. He added that Exhibit 5 (a) is in respect of parcel Kericho/ Kapsuser/1992 and when referred to Exhibit P1 he stated that the agreement does not mention Kericho/ Kapsuser/1992. 101. He further confirmed that the agreement has am amount of Kshs. 600/= and another amount of Kshs. 10,000/= and explained that the amounts are for different years. 102. He stated that he bought the parcel of land for kshs. 600 in 1970 and also confirmed that that the agreement did not have terms & conditions. 103. PW1 stated that further stated that Samuel Birir granted him occupation and confirmed that the agreement does not indicate that he took occupation of land. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 27 of 112

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104. PW1 also confirmed that it is true that the land was agricultural land. He also confirmed that he did not attend the Land Control Board and also stated that he does not have the consent. 105. He stated that he does not have a copy of title Kericho /Kapsuser/1992. He also stated that he did not present it to court. 106. He also stated that Samwel Kipngeno Birir and him have been having trouble over the land and added that he did not have title to the suit land. 107. He further admitted that the Samwel Kipngeno Birir’s son sent back some money to him - Kshs. 10,000 and he explained that he sent back the said amount which was for processing the title. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 28 of 112

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108. Upon re-examination, PW1 stated that he had been asked if he produced a copy of the title for Kericho/ Kapsuser/1992 and said that he did not. 109. When he was referred to Exhibit P6 he also stated that he was in possession of the green card which shows the PARCEL NO. Kericho/ Kapsuser/1992 and that its original number was 1631. 110. On the question of the survey and surveyor, PW1 clarified that a surveyor was sent by the defendant. When he was referred to Exhibit 5(a) he stated that the map was drawn by a surveyor , the defendant and one Joel Ngeno who is Defendant’s son. 111. He further confirmed that the shaded part is what was sold to him but clarified that did not participate in the survey. 112. On the question of the access road, PW1 reiterated that he purchased the shaded part ( as shown on the survey map) and ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 29 of 112

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added that it measures 0.3 acres. He explained that the access road passes through the shaded part and further explained that the access road does not cover the whole of the shaded part but it lies on the side. 113. On the question of the sale agreement & occupation, PW1 reiterated that the vendor put him in occupation in the year 1970. 114. When he was referred to Exhibit 5(b) he stated that his land is No.1627 while the defendants parcel is No. 1631 and explained that before subdivision it was 1631 but it is currently No. 1992. 115. showed the court the area that he is claiming which area the court highlighted in orange. 116. The second witness to testify in support of the Plaintiff’s case is one Charles Keino, hereinafter referred to as PW2. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 30 of 112

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117. In his introduction, he stated that he is a farmer and resides in Chepkolon. 118. He also testified that he knows the Plaintiff, Wesley Arap Turip and added that the Plaintiff is his neighbour. 119. He further testified that he knew the Defendant Samuel Kipngeno and also added that the said Samuel Kipngeno is his neighbour. 120. It was also his testimony that he knows the dispute between the Plaintiff and the Defendant and added that it is about land and that the land in dispute measures 0.3 hectares. 121. It was further his testimony that he signed the agreement (Exhibit P1) and added that he was signing as a witness of Defendant when the Plaintiff paid Kshs. 10,000. He went on to explain that the Kshs. 10,000 was paid for processing the title deed. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 31 of 112

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122. He also testified that before payment there was a meeting that was held in the year 2007. He stated that the Assistant Chief and him were present at the meeting. 123. It was his further testimony that The meeting was called because Samuel Kipngeno alleged that did not purchase the land and added that the meeting resolved that the suit parcel of land belongs to the Plaintiff. 124. It was his testimony that this resolution was based on the fact that the Plaintiff had planted trees on the suit parcel and also because there was a road on the suit parcel which road leads to the Plaintiff’s homestead. 125. It was also his testimony that the suit parcel has been in use by the Plaintiff since 1970 and added that the Defendant has never used the suit parcel. 126. PW2 ended his testimony stating that he filed and signed a supporting affidavit sworn on 5th December 2022, and prayed ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 32 of 112

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that the court adopts it as part of his evidence-in-chief, which prayer the court acceded to. 127. Upon cross-examination, PW2 confirmed that he had his identity card in court, showed it to court and read it as No. 0324142. He stated that the number the name appearing on it is Keino Charles, the date of birth is 1940, location is Township, Sub-location is Kapsuser and the District Is Kericho. 128. He confirmed that the parcel of land was bought by the Plaintiff and stated that he did not know the parcel number. 129. He further confirmed that his evidence is that the Plaintiff bought the suit parcel in 1970. 130. PW2 stated that he was not present during the purchase but was present when the Defendant was paid Kshs. 10,000/=. He added that there were three people present at that time and that the money was being paid in respect of the Defendant’s parcel. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 33 of 112

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131. PW2 stated that he did not know the number of the suit parcel but he knows where the Plaintiff lives. 132. He also admitted the Plaintiff and Defendant share a common boundary and confirmed that both parcels of land can access the main road. 133. When referred to Exhibit P5(b); the survey map he stated that there is a road passing below parcel number 1627. He also confirmed that the Plaintiff is not landlocked. 134. PW2 stated that it is not true that that the suit parcel was sold to offer an access road and explained that the reason for sale is because the Defendant wanted money for his children’s school fees. 135. He confirmed that the blue gum & cypress were planted on the suit parcel in the year 1970 and added that he saw the Plaintiff ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 34 of 112

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planting the trees but he could not confirm how many trees were planted. 136. PW2 stated that he did not know about the land control board and was not aware that when purchasing agricultural land one must attend the Land Control Board. 137. PW2 further stated that they never went to the Land Control Board with the Plaintiff and that he could not confirm whether the Plaintiff went to the Land Control Board. 138. He further stated that the suit parcel that measures 0.3 acres and is on parcel No. 1627 but did not have any proof. 139. He stated that subsequent to the purchase, a surveyor ,accompanied by the Defendant’s son, because the Defendant’s son wanted to know the size of the land which was sold by his father. PW2 added that the surveyor is one of the witnesses who has been called to testify. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 35 of 112

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140. When referred to Exhibit P1, PW2 stated that the agreement is in respect of the plaintiff’s parcel but he did not know the parcel number. 141. He further stated that the agreement has a parcel number but the agreement doesn’t describe the property subject of the sale. He added that there was no number in the said agreement but the 0.3 acres came from Parcel No. 1627. 142. He admitted that he is a village elder and also admitted that he is not the immediate neighbor of the Plaintiff and he does not know about the road or its length. 143. PW2 further admitted that the suit parcel only has stones and it does not cut across Parcel No. 1992 which belongs to the Defendant. 144. Upon re-examination PW2 was referred to Exhibit P5 and stated that the Defendant’s parcel is No 1992 while the parcel ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 36 of 112

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in dispute is on the Plaintiff’s side i.e. on the side of Parcel No.1627. 145. He further stated that the road to the plaintiff’s land is on the map. The court directed him to draw the road on the map but he was unable to show the road on the map. 146. When PW2 was referred to Exhibit P1 he reiterated that Samuel Birir (the defendant) was the vendor and stated the agreement was in respect of Parcel No. 1992. 147. The court asked PW2 to clarify on the paragraph of the agreement that speaks to it being in respect of Parcel No. 1992 and PW2 stated that agreement does not bear a parcel number. 148. Wycliff Kingetich Lagat, hereinafter referred to PW3, was the third witness to testify in support of the Plaintiff’s case. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 37 of 112

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149. He stated that he lives in Kipchebor location, Chepkolon sublocation. He showed his ID number 6008268 to court. 150. It was his testimony that he knows the Defendant and added that he is his neighbour. 151. He further that the there is a road between the Plaintiff and Defendant’s parcel of land. 152. PW3 stated that he knows the dispute between the Plaintiff and the Defendant and added that it is about a parcel of land and added that the land was initially owned by the Defendant and that he sold it to the Plaintiff. 153. He went on to testify that the parcel is of 0.3 of an acre and that it has blue gum, cypress and wattle trees growing on it and that there is a tea boundary around on the parcel. 154. He also testified that the plaintiff has had possession of the suit parcel since he came to live in that locality which was in the ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 38 of 112

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year there in the year 1970.He explained that in the year 1970 he was in the second year secondary school. 155. PW3 testified that the Plaintiff has been selling the trees growing on the suit parcel for firewood and stated that he did not know the number of trees growing on the suit parcel. 156. Upon Cross-examination by counsel for the Defendant, PW3 admitted that there is a dispute regarding the parcels of land and added that he was aware that the land was sold because the owner needed school fees. 157. He stated that he was present when the land was being sold but reiterated that he was in the second year of his secondary education. 158. PW3 stated that before they moved next to the suit parcel they were living across the river. He explained that the ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 39 of 112

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defendant had land on the same place he lives currently and explained that that he knew that the defendant sold the land but was not sure when he sold the land. 159. He confirmed that he did not know where the Plaintiff lived before. 160. PW3 also confirmed that there is a structure built by James Finlay’s Company Limited and that the structure is for weighing tea. He further confirmed that the structure is built on the suit land which land was sold to the plaintiff. 161. PW3 confirmed that the structure was not there in the year 1970 and although he did not know exactly when it was built, it was recent. He went on to explain that it is the plaintiff who authorized the tea ‘banda’ to be built. 162. He confirmed that in paragraph 3 of his witness statement he states that the plaintiff planted trees but does not know the type of trees growing on the suit land. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 40 of 112

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163. He reiterated that the tea ‘banda’ was built by James Finlay’s Company Limited , that there were trees growing on the suit land and that there were no crops. He emphasized that the only thing built on the suit parcel is the structure by James Finlay’s Company Limited. 164. It was PW3’s evidence that Wesley purchased parcel number 1627 from the brother of the defendant and that there was never a problem between the brothers. 165. He confirmed that the land belonged to the Defendant and he did not know whether it had been transferred to the buyer. 166. He also confirmed that the land is Agricultural and that it needs consent of the Land Control Board and emphasized that the only development on the land is the different species of trees but he was not present when they were being planted. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 41 of 112

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167. Upon re-examination, PW3 reiterated that he did not know when the trees in suit parcel were planted but had seen them being harvested. 168. He also reiterated that whenever he needed firewood, he asked for trees which the Plaintiff gave him to use as firewood. 169. He stated that the ‘banda’ and/or tea buying structure was for use by all the villagers. 170. The last witness to testify in support of the Plaintiff’s case was one Richard Ngetich, herein after referred to as PW4. 171. He introduced himself as the Senior chief Kipchebor Location and stated that he had received witness summons to attend court and give evidence in respect of land knows as Kericho/Kapsuser/ 1970. 172. It was his testimony that he knows the plaintiff; Wesley Tonui and also knew Samuel Birir who is the defendant. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 42 of 112

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173. It was his evidence that in the year 2009, 2012, 2013 there was dispute and it was handled by the Assistant Chief who had since retired. 174. PW4 went on to explain that although he attended the meetings, he was not he one chairing them and added that Rev. Ezekiel Keser who witnessed the sale between the Plaintiff and Defendant was also at the meeting. 175. He testified that during the meeting he remembered the daughter of Samuel Birir one Ruth asking the father not to interfere with the plot because they knew it had been sold to Wesley. 176. He went on to testify that the meeting was held at the suit parcel and that parcel in dispute was identified during the meeting. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 43 of 112

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177. It was his further testimony that the suit parcel has wattle trees & blue gum trees growing on it. 178. PW4 stated that when he was attending school at Chebor and they used to follow a path near the suit parcel and always knew that the suit land belonged to Wesley Tonui. 179. Upon Cross-examination by the counsel for the Defendant, he confirmed that he did not record a statement to be used in the court. 180. He also confirmed that he did not know how the plaintiff took occupation of the suit land. 181. He further confirmed that he attended the meeting which was chaired by the Assistant Chief whose name is Ezekiel Keser and also confirmed that minutes were taken but he did not have them. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 44 of 112

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182. When referred to Exhibit P1(a)&(b)), PW4 stated that the agreement indicates states that the Plaintiff acquired land in 1970. 183. He confirmed that there are trees standing on suit parcel Kericho/ Kapsuser/1970. 184. He also confirmed that that the agreement (Exhibit p1 (a) & (b)) does not mention the suit parcel Kericho/ Kapsuser/1970. 185. He further confirmed that he has not been shown an agreement for Kericho/ Kapsuser/1970. 186. PW4 stated he was in a meeting called by assistant chief to resolve the issue of land and added that he attended the meeting in his capacity as the area Chief and added that land disputed can be resolved by the chief. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 45 of 112

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187. PW4 confirmed that he had his Identity Card No. 9726181in court and that he was born in the year 1969. 188. He further confirmed that he would not know how the Plaintiff acquired the suit parcel but added that there are records that speak to his acquisition. 189. He further stated that there is no ‘banda’ for tea on the suit parcel but there this is one adjacent land. PW4 also testified that the adjacent land belongs to Tonui however he had nothing to show proof the assertions. 190. He confirmed that the parcel of land next to the Tonui one is the one in issue and added that the dispute between the Plaintiff and the Defendant is that Tonui bought from Birir and Birir is disputing the sale. 191. PW4 admitted that he did not know the acreage occupied by Tonui and added that the parcel in dispute measures 0.3 acres. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 46 of 112

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192. He stated that trees on the land are over 50 years and is basing this on the fact that he saw the trees when growing up and walking to school. 193. PW4 confirmed that further stated that he wrote a letter to Birir which was at his request and the purpose of the letter was to establish a boundary. 194. PW4 further stated that the surveyors established the boundaries but did not know if they did anything else apart from the survey work. 195. He admitted that the plaintiff has no house on the disputed parcel and had no other development apart the trees. 196. He confirmed that he is 55 years old and stated that he had over the years seen trees growing on the suit parcel being cut down. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 47 of 112

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197. PW4 further confirmed that there is no stream on the suit land and explained that that there is a public road adjacent to the land. 198. He admitted that there is a path that the Plaintiff uses to get to his home. He also stated that there is a registered road on the map but it is not in use. 199. He confirmed that the Plaintiff is not land locked and added that he did not know if the Plaintiff is asking for an access road and further explained what he knew is that the Plaintiff has access. 200. PW4 admitted that his evidence is for a claim for land that Tonui bought and not as access road. 201. He also admitted that he was not sure whether the suit parcel and “banda” are registered in the name of Tonui (Plaintiff). ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 48 of 112

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202. He reiterated that the trees growing on suit land are blue gum and wattle he further confirmed they are all on 3 points of the suit parcel. 203. Upon re-examination, PW4 stated that the meeting was held at the suit parcel and that the disputed area was pointed out. 204. He reiterated that the ‘Banda’ is not on the disputed parcel but is on an adjacent parcel which is less than 3 meters. 205. He explained that he wrote a letter for Birir ( the Defendant) and that the purpose of the letter was to ask the Registrar to help him ( the Defendant) to establish boundary for his parcel. He went on to explain that he thought that at the time of writing the letter he thought that the subject of the letter was another parcel of land and not the suit parcel. 206. He also explained that whenever the registrar is visiting to establish boundaries, the Registrar normally asks that they notify the neighbors. He went on to explain that in this ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 49 of 112

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instance, after he wrote to the registrar to help Birir to establish boundaries, the Registrar did not write back to him, as he/she would normally do, to give a date for the visit. 207. On the question of developments on the suit parcel, PW4 reiterated that there are trees on suit parcel and had seen trees being harvested over the years by the Plaintiff. He added that he did not remember seeing any trees being harvested by the Defendant. 208. The Plaintiff then closed his case. DEFENDANT’S EVIDENCE. 209. Samuel Kipngeno Birir, hereinafter referred to as DW1, was the first witness to testify for the defence. The court noted that he is an elderly adult male. 210. He testified that he was born in 1932 and read out his Identity Card number 1756250 to the court. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 50 of 112

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211. He also stated that he had a witness statement dated 14 th September, 2022 and prayed that the same be adopted as part of his evidence-in- chief, which prayer the court acceded to. 212. He testified that he had in his possession a title deed for his land whose number he could not remember but asked that the court looks at it. The tittle deed was marked and produced as Exhibit D1. 213. When he was referred to Exhibit P6 (The green card) it was his evidence that he did not remember when the register was opened and added that he could not read. The court assistant read out entry NO.1 to the witness and in response, he stated that he did not know if the register was opened in the year 1980. 214. It was his evidence that he did not sell his land. He added that when they sub-divided the parcel he gave it to his son. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 51 of 112

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215. DW1 testified that he knows Pastor Tonui ( The Plaintiff) and sated that the Plaintiff came to steal part of his land. He added that Pastor Tonui was still on his land. 216. DW1 also testified that he sub- divided the land and shared it with his brother after which Pastor Tonui bought his land from his brother. 217. It was his further testimony that subsequent to the sale, his brother vacated the portion sold to the Plaintiff and he remained with the Pastor Tonui ( The Plaintiff) on the land. 218. It was his evidence that before his brother left the land, there was never a boundary dispute. He added that he did not know about parcel numbers and only knew that the brother and himself took different portions. 219. DW1 also testified that Tonui was on his side of the parcel of land while he was also on a different side of the parcel of the land. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 52 of 112

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220. He further testified that he planted the trees on the parcel of the land and when Tonui bought the land the trees were his. He explained that he ought to have been paid kshs 300 for the trees but he disagreed with Tonui. 221. It was his evidence that his brother and himself used the same path while going to the market. 222. The Court Assistant, at the request of Counsel for the Defendant, read the contents of the title document, specifically that is was issued on 6th September 1999. 223. DW1 stated that he never went to the Land Control Board with the Plaintiff and added that when the Plaintiff wanted to take his land, he went to the Chief and reported the matter after which the Chief advised them to report the matter to the survey office. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 53 of 112

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224. He further testified that two people came to take measurements of the land but he did not know that they had come from the survey office. He added that he did not know that they were taking measurements of the land. 225. It was his evidence that he did not know if the Plaintiff was present when the measurements were being taken of the land, because he did not go where they were. 226. When he was referred to Exhibit P1 (agreement dated 10th August, 1970), he stated that he neither entered into nor signed any agreement. 227. It was also his evidence that the Plaintiff is on another parcel of land but he changed the boundaries to steal part his land. 228. It was his further his evidence that the Plaintiff agreed with his brother however he took part of his land and came to his side of the land. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 54 of 112

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229. DW1 ended his testimony by stating that he sold the said land to the Plaintiff but he refunded him the money. 230. The Court sought clarification from the witness on why he returned the money and DW1 explained that he returned the money because they did not agree with the Plaintiff. 231. Upon cross-examination DW1 stated that Tonui took some part of his land but he could not remember when. 232. He also stated that he informed the chief that the Plaintiff took his land. 233. He further confirmed that he had earlier sold the suit land to some people that had not transferred the land to them. 234. DW1 stated that he did not know Parcel No. 1992 is a subdivision of Parcel No. 631. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 55 of 112

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235. He further stated that he did not know how to sign and when referred to Exhibit P3 DW1 stated that the signature on the letter was not his. 236. He also confirmed that he returned the money to Tonui and then changed his mind and sated that his son is the one who returned the money to Tonui. It was his further evidence that he could not remember when Tonui paid the money that was being returned. 237. Upon re-examination he stated that he did not know the number of his land and added that it is his son who knows it. 238. Joe Ngeno, hereinafter referred to as DW2, was the second witness to testify in support of the defence case. 239. He introduced himself as a senior lecturer at Egerton University and added that the Defendant is his father. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 56 of 112

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240. When he was referred to Exhibit P1, it was his evidence that the agreement is dated 10th August, 1970 and that it does not describe the land subject of the Agreement. 241. It was also his evidence that he lives on parcel of land Kericho/ Kapsuser/1992 and added that the said parcel of land is registered in his father’s name. 242. It was also his evidence that in the year 1970 his father did not have the land registered in his name. He explained that as at the year 1970 the land adjudication had not commenced in their area and that the adjudication process was commenced in the year 1980 and thereafter title deed was issued in the year 1999. 243. It was further his evidence that Exhibit P1 states that the plaintiff bought ¾ of an acre for KSHS 600/-. He added that the property is unnamed. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 57 of 112

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244. He testified that he had not seen any sale agreement for sale of Property Kericho/Kapsurer/1992 and added that the Plaintiff’s claim that he bought land from his father and he needs the land transferred to him is untrue since there was no sale in respect to Kericho/Kapsuser/1992. 245. It was his further testimony that the Plaintiff owns Parcel No 1630 and 1627 and that they said parcels border their land. 246. He further testified that he has seen Exhibit P3 and that the same refer to two Parcels which belong to the Plaintiff. It was his evidence that their Parcel No. 1992 is adjacent to Parcel No. 1630 and 1627 which belongs to the plaintiff and stated that he was aware that the same was not brought to the court’s attention. 247. It was also his evidence that the in the alternative the Plaintiff pleads adverse possession however the Plaintiff has never been in occupation of parcel No 1992. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 58 of 112

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248. It was further his evidence that his understanding is John Birir (The Plaintiff) and his father had a dispute in regards to encroachment but the Plaintiff claims that he purchased the suit parcel. 249. He testified that they reported the matter to the area Chief and requested that the surveyor establishes beacons as they were initially when his uncle resided on the land. 250. He testified that the surveyor established boundaries and it was discovered that Parcel No. 1630 had encroached onto Parcel No. 1992. 251. He further testified that he had in his possession a copy of map drawn by the surveyors. The same was marked and produced as Exhibit D2. 252. DW2 went on to testify that the Plaintiff was present during the survey that was done on 20/6/2022 but walked away on ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 59 of 112

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protest. he explained that the date of the survey can be seen on Exhibit P4. 253. He confirmed that Kericho/Kapsuser 1992 is agricultural land and added that his father and the Plaintiff have never been to the Land Control Board. 254. DW2 also testified that the allegation by the Plaintiff that he planted trees on the suit land is not true and he added that the said trees were planted by his father. 255. It was also his evidence that the boundary dispute between the Plaintiff and them has not been resolved. 256. DW2 denied that the Plaintiff has been living on their land for 12 years and stated that they are the ones in occupation. He also denied that the Plaintiff has made any developments on the suit land. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 60 of 112

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257. It was also his evidence that the Plaintiff cannot be entitled to land that he has never occupied and added that the Plaintiff can access his parcel of land without any reference to the suit parcel. 258. DW2 ended his testimony by stating that he wasn’t sure if the Plaintiff entered the suit parcel with permission of his father an/ or whether permission was necessary. 259. By consent of the parties, DW2’s witness statement was adopted as part of his evidence in chief. 260. Upon cross-examination, DW2 confirmed that the Defendant is his father. 261. He also confirmed that he was born in 1972 and that their family is comprised of two brothers (1 deceased) and five sisters. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 61 of 112

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262. DW2 further confirmed that the adjudication process was done in the year 1980. 263. When referred to Exhibit P6, DW2 confirmed that the suit parcel was a sub-division of parcel number 1631. He explained that their neighbour one Joseph Ngeno purchased a quarter of an acre and that that is what caused the subdivision. 264. While looking at Exhibit P6, he confirmed that Entry No.1 is dated 24th July, 1980 and explained that that is the date when the register for Parcel No. 1992 was opened. He confirmed that this was on account of subdivision of parcel number 1631. 265. When he was referred to Exhibit P3 he confirmed that the letter was written by his dad. 266. When he was referred to Exhibit P1 (a) he also confirmed that there were two signatures appearing on the document and that the second signature looks like his father’s signature. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 62 of 112

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267. When referred to Exhibit P3, DW2 admitted that the letter was for the purposed of establishing boundaries and that the surveyor confirmed that there was an encroachment. 268. When referred to Exhibit P5 (a), DW2 stated that it shows that the area of encroachment is 0.27 acres. He admitted that they discovered the encroachment in 1998 but they did not go to court. 269. DW2 also admitted that the period from the year 1998 to the year 2022 when this suit was filed is 24 years. 270. He further admitted that there are trees on the area allegedly encroached onto by the Plaintiff. and that the encroachment were trees that had been planted. 271. DW2 stated that before the year 1998, they had seen the Plaintiff’s son harvesting trees and that after the year 1998, they discovered that the suit parcel belonged to them and that they then went to the village elders. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 63 of 112

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. 272. Upon re-examination DW2 stated that he had been shown a purported agreement and explained that the said agreement does not mention land Parcel No. 1992. 273. On the question of the signature appearing on the said agreement, DW2 retracted his earlier testimony and stated that he is not an expert on signatures. 274. DW2 reiterated that the register for Kericho/ Kapsuser/1992 was opened on 24th July, 1980 and stated that he had not seen the register for parcel number 1630,1627 and 1631. 275. He also explained that Parcel No. the trees run along the road between 1992 and Parcel Number 1627. He added that some trees also run along the fence between parcel number 1630 and Parcel No. 1992. 276. He further reiterated that some of the trees belong to the Plaintiff while other belong to their family. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 64 of 112

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277. DW2 stated that there has been hostility between the Plaintiff and themselves from the year 1998. 278. He reiterated that the surveyor found an encroachment of 0.27 acres by the Plaintiff and that the said encroachment is on the lower side of the suit parcel. He explained that they could not evict the Plaintiff as the same would breach peace and added that they, however, informed the chief on the encroachment between parcel number 1630 and parcel Number 1992. He stated that he was clear on the extent of the encroachment. 279. He reiterated that the alleged agreement for sale of ¾ of an acre is the actual area of encroachment i.e. 0.27acres. 280. The defense case was then closed. ISSUES FOR DETERMINATION. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 65 of 112

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281. The Plaintiff’s filed Written Submissions dated 19 th February 2026 while the Defendant filed their written submissions on the 23rd March 2026. 282. The Plaintiff frames the issues for determination as follows: (i) whether the Plaintiff has proved his case to the required standard to entitle him to the orders of adverse possession over a portion of the Defendant’s property. (ii) whether the Plaintiff should be awarded costs. 283. It is the Plaintiff’s submission that he has fulfilled the burden and standard of proof to entitle him to the award of prayers of Adverse Possession over a portion of the Defendant’s property measuring 0.27 Acres, as he has called testimony to the facts and also from the fact that the Defendant’s own admissions confirm that the Plaintiff has been in full, uninterrupted occupation over the portion of property to which this suit relates. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 66 of 112

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284. The Plaintiff relies on Wines & Spirits Kenya Limited & another v George Mwachiru Mwango [2018] eKLR, in which the Court of Appeal discussed when a cause of action for adverse possession accrues under Section 13 of the Limitation of Actions Act, and held that under Section 17, if the registered proprietor fails to recover the land within 12 years of uninterrupted adverse occupation, the proprietor’s title stands extinguished citing Benjamin Kamau Murima & Others v Gladys Njeri, CA No. 213 of 1996, for the proposition that the combined effect of Sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the title of the proprietor in favour of an adverse possessor at the expiry of 12 years of adverse possession, and noting that a claimant must then move the Court under Section 38 of the Act. 285. The Plaintiff further relies on Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 others [2018] eKLR, which explains the conditions to be met to prove entitlement in adverse possession, including the requirement drawn from Mbira v Gachuhi (2002) IEALR 137 that a claimant must ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 67 of 112

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prove non-permissive or non-consensual, actual, open, notorious, exclusive and adverse use for the applicable statutory period without interruption the Latin maxim of nec vi, nec clam, nec precario (no force, no secrecy, no evasion) with the burden of proof lying primarily with the party asserting adverse possession. 286. The Plaintiff also relies on the judicial decision of Ouko & another v Kageni [2025] KECA 2126 (KLR), in which the Court of Appeal sitting in Nairobi found, at paragraph 48, that time started running from the date the respondent paid the last instalment of the purchase price. Applying that finding, the Plaintiff submits that he entered into a sale agreement with the Defendant on 10th August, 1970 and paid a purchase price of Kshs 600/=, and that on 4th May 2001, upon the Defendant’s request, he paid a further Kshs 10,000/=, which was duly acknowledged; accordingly, time is submitted to have started running from 4th May, 2001, being the date of last payment, making a 21-year period to the date the Plaintiff brought the action. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 68 of 112

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287. The Plaintiff notes that the Defendant, in his testimony, denied the existence of the said agreement but, on cross-examination, acknowledged receiving payment and insisted that he had refunded the same through his son. 288. On the second limb of occupation, the Plaintiff relies on the finding in Ouko v Kageni(Supra) that possession need not be actual and physical but can also be constructive, and submits that the Defendant’s own admission that the Plaintiff was in open occupation, together with DW2’s confirmation that the Plaintiff’s son had been harvesting trees on the property and that encroachment was discovered in 1998 without any action being taken to evict the Plaintiff, demonstrates occupation that was open, without force, without secrecy and without license or permission from the Defendant. 289. The Plaintiff submits that the Defendant’s assertion that the agreement was subject to Land Control Board consent fails on ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 69 of 112

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account of Wines & Spirits Kenya Limited & another v George Mwachiru Mwango(Supra) 290. On costs, the Plaintiff relies on Francis Ireri Jotham v Patricia Muthoni Kaburu (Chuka ELC OS No. E001 of 2024) for the proposition that, where there are no special circumstances to show that costs should not be allowed, the successful party should be awarded costs, and prays that costs be awarded to the Plaintiff. 291. The Defendant submits that the Plaintiff has testified before the Court under oath that his entry to the suit land was by the permission of the Defendant. 292. The Defendant further submits that there is a Sale Agreement of land for an unidentified subject matter dated 8 th October ,1970, which the Plaintiff refers to as L.R. No. Kericho/Kapsuser/1992, yet that reference is not reflected in the said Sale of Land Agreement. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 70 of 112

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293. It is the Defendant’s submission that the Sale of Land Agreement was in respect of agricultural land and was a controlled transaction requiring the consent of the Land Control Board, which consent was never granted, in contravention of the mandatory Provisions of Section 16(1) of the Land Control Act, Cap 302, Laws of Kenya. 294. It is also the Defendant’s submission that there is no evidence that L.R. No. Kericho/Kapsuser/1992 was in existence or registered as an Adjudication Section in the 1970s, and no evidence of due diligence having been carried out to establish the registration of the property and ownership. 295. The Defendant submits that, from the pleadings, the Plaintiff’s claim does not lie in Adverse Possession but rather in Specific Performance, and that the Plaintiff is bound by his own pleadings. 296. The Defendant also submits that, from the alleged Sale of Land Agreement of unidentified subject matter, the Plaintiff was ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 71 of 112

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never put into possession or occupation, as no such provisions or conditions are contained in the said Agreement of Sale, and that the Plaintiff repeatedly told the Court in cross-examination that the Defendant had not transferred to him the portion of land he had bought from him in 1970. 297. It is his further submission that none of the witnesses called by the Plaintiff was present at or a witness to the sale agreement or the payment of the purchase price for the alleged, unidentified subject matter in 1970. 298. The Defendant submits that the Plaintiff alleges to have bought land from one Samwel Birir, yet has provided no evidence that the land he bought in 1970 was registered in the name of Samwel Birir. 299. He submits that the Plaintiff is not in occupation and possession of the suit land and has not told the Court why he is not in occupation and possession since 1970, or why he moved out, or whether he was evicted. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 72 of 112

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300. It is his further submission that the Court was not shown any Sale of Land Agreement in respect of Kericho/Kapsuser/1992, its consideration, or the parties thereto. 301. The Defendant was very categorical that he never sold, and has never sold, any portion of Kericho/Kapsuser/1992 to the Plaintiff; the Defendant submits that it is the Defendant’s brother who sold his own parcel of land to the Plaintiff, and not the Defendant. 302. He submits that in determining whether the nature of actual possession of land in question is adverse, one needs only to look at the position of the occupier and that if the occupation is found to derive from the proprietor of the land in the form of permission, agreement, or grant, then such occupation is not adverse. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 73 of 112

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303. He also submits that the Plaintiff further alleges that he has been denied his right of way on the disputed portion of land which he had bought in the year 1970, and that the Defendant dug a trench along the middle of the disputed property making it impossible to pass by road. 304. The Defendant submits that the Plaintiff has not disclosed the parcels of land which this particular road of access serves and that it is common ground that the Plaintiff is in truth seeking to have the parcel transferred to his name so as to create another road of access, as per his statement adopted by the Court. 305. He also submits that the Plaintiff alleges to be in possession and occupation continuously, notoriously and peacefully, which is not true, as it is the Defendant who is in possession and occupation to date. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 74 of 112

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306. It is his Further submission that the Plaintiff has no sufficient interest to sustain his claim by virtue of adverse possession and occupation, and not under a contract, and refers to the decision in Hyde v Pearce (1982) 1 All ER 1029 in support of this proposition. 307. The Defendant submits that in the present case there is no evidence of a discontinuation of possession on the part of the Defendant, and that the Plaintiff has not demonstrated or shown factual possession nor the animus possidendi, for failure to seek the consent of the Land Control Board before entering into the Sale Agreement. 308. He also submits that he raised concerns over encroachment on his parcel of land with the Registrar of Lands, who instructed surveyors to establish the extent of the encroachment and effect rectification, and that the issue of encroachment over the boundary was explained by DW2 as very contested and confrontational to date, such that the possession necessary to ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 75 of 112

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establish adverse possession was not possible in a very hostile environment. 309. It is his further submission that the Plaintiff bought two other properties, namely Kericho/Kapsuser/1627 and Kericho/ Kapsuser/1630 within the same area and that the said parcels are registered in his own name. 310. The Defendant also submits that the Plaintiff never attached an extract of title of the suit land to his Originating Summons as mandatorily required by law. 311. It is his submission that there is no dispute that the suit parcel I s registered under the Registered Land Act, and that the title cannot therefore be extinguished but at most held in trust, having allegedly paid consideration in 1970. 312. The Defendant further submits that the Plaintiff told the Court that he had asked the Defendant to transfer the land to him ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 76 of 112

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but the Defendant declined, thereby necessitating the filing of the suit which the Defendant contends is inconsistent with a claim founded on adverse possession. 313. The Defendant submits that the variance in the acreage referred to by the Plaintiff in his own submissions 0.75 Acres in 1970 as against 0.27 Acres now claimed has not been explained, not even with a sketch plan of what the Plaintiff says he bought from the Defendant. 314. On the Plaintiff’s alternative claim to a right of way, the Defendant submits that for there to be an easement there must be a dominant and a servient tenement; that neither party in this case is land-locked; that the Plaintiff’s own registered land, L.R. No. Kericho/Kapsuser/1627 and 1630, has direct access as fronts to the main road; and that the dominant and servient owners must be different persons. 315. The Defendant prays for judgement against the Plaintiff, with costs to the Defendant. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 77 of 112

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ANALYSIS AND DETERMINATION. 316. Having considered the pleadings, the evidence on record and the rival submissions, my view is that the following issues arise for determination; a) Whether the Plaintiff has acquired title to 0.27 acres comprised in land title number Kericho/Kapsuser/1992 by way of adverse possession. b)Whether the prayers sought in the Originating Summons should be granted. c) Who should bear the costs of the application. SUMMARY OF EVIDENCE AND DOCUMENTS. 317. I shall start by summarizing the evidence adduced by the parties herein and the documents they produced in support of their case. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 78 of 112

page 78 of 112

318. Four witnesses testified in support of the Plaintiff’s case while two testified in opposition of the Plaintiff’s case and in support of the Defendant’s case. 319. Wesley Arap Tonui testified as PW1. He produced the following exhibits: the sale agreement dated 10 th August, 1970 and the translation of the agreement in English as (Exhibit P1(a) and (b)), two photographs of the suit land (Exhibit P2(a) and (b)), an undated letter from the Defendant to the Area Chief (Exhibit P3) a letter dated 20th June, 2022 from the Chief, Kipchebor Location, to the District Surveyor (Exhibit P4), survey maps of Kericho/Kapsuser/1992 dated 27th July 2022 (Exhibit P5(a) and (b)) and a certified copy of title to Kericho/Kapsuser/1992 (Exhibit P6). 320. It is the Plaintiff’s case that he purchased ¾ of an acre from the Defendant. 321. It is also the Plaintiff’s case that when he purchased the suit land, he fenced it with the help of the vendor and that the ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 79 of 112

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transaction was witnessed by one Ezekiel, a surveyor and that subsequently, the vendor told him to await the issuance of a title deed. 322. It is further the Plaintiff’s case that a further Kshs. 10,000/= was paid on 4th May, 2001, to cater for the processing of the title deed and that this payment was witnessed by one Samuel Birir and a village elder. It is his evidence that he was, however, never issued with a title deed for the suit parcel. 323. It is also the Plaintiffs’ case that on 18 th March, 2022, twelve years after the payment of Kshs. 10,000, the Defendant’s son returned, by way of mobile money transfer, the sum of Kshs. 10,000 without any explanation. 324. It is also the he Plaintiff’s case that he has developments on the suit parcel including houses, trees and a banana plantation. It is also his case that he has remained in possession of the suit land from 1970 to date. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 80 of 112

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325. The Plaintiff claims ownership of a portion of the suit parcel on account of adverse possession. 326. The defence case is supported by the testimony of Samwel Kipngeno (The Defendant) who testified as DW1. He produced a title deed of the suit land issued on 6 th September 1999 as Exhibit D1). He also produced a Copy of the Surveyor’s Map sheet as Exhibit D2. 327. It is the Defendant’s case that he did not sell his land and that when he and his brother sub-divided their family land, he remained on his own portion while his brother sold his portion to the Plaintiff. The Defendant states that there was never a boundary dispute between him and his brother. 328. It is also the Defendant’s case that he planted the trees on the parcel now claimed by the Plaintiff, and that he ought to have been paid Kshs. 300/= for the trees but disagreed with the Plaintiff over this payment ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 81 of 112

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329. It is further the Defendant’s case that when the Plaintiff began to interfere with his land, he reported the matter to the Chief, who referred it to the survey office. 330. The defence case is also that the Land Control Board did not issue consent within the required period so much so that if at all there was a sale as between the Plaintiff and the Defendant, the sale became null and void for lack of consent from the Land Control Board. However, the defendant maintains that he never entered into or signed a said agreement. A) Whether the Plaintiff has acquired title to 0.27 acres comprised in land title number Kericho/Kapsuser/1992 by way of adverse possession. 331. The Plaintiff contends that he entered into a memorandum of sale with the Defendant on 10 th August, 1970 for a portion of Kericho/Kapsuser/1992, paid the agreed consideration, and was thereafter placed in occupation of the suit land. The ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 82 of 112

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Plaintiff also testified that he remained on the suit parcel, planted, harvested and replanted trees, and maintained an access route to his adjoining land, for a cumulative period exceeding 52 years. 332. The Defendant, on the other hand, contends that he never sold any portion of Kericho/Kapsuser/1992 to the Plaintiff, that the 1970 Memorandum does not identify the suit parcel at all, that the Plaintiff has never been in occupation of the suit land, and that what in truth exists between the parties is an unresolved boundary dispute arising from an encroachment by the Plaintiff’s adjoining parcels No. 1627 and No. 1630 onto Parcel No. 1992 as was discovered by a survey conducted in 1998. 333. It is not disputed that Kericho/Kapsuser/1992 is registered in the Defendant’s name, that the Defendant’s family has occupied and developed the balance of the parcel. A survey commissioned at the Defendant’s instance identified a 0.27- ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 83 of 112

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acre portion on the boundary side of the parcel as the area in contention. 334. It is also not disputed that the Plaintiff and his witnesses have exercised use over that same 0.27-acre portion harvesting trees from it for a period going back, at the least, to well before 1998. 335. What is disputed is the character of that use i.e. whether it amounts to occupation in the exercise of ownership acquired by purchase and adverse possession as the Plaintiff contends or whether it is an encroachment onto the Defendant’s land arising from a live and unresolved boundary dispute, as the Defendant contends. 336. Section 38(1) and (2) of the Limitation of Actions Act provides as follows: “(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 84 of 112

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cited in section 37 of this Act, or land 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. (2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.” (Emphasis mine) 337. In the Judicial Decision of Richard Wefwafwa Songoi v Ben Munyifwa Songoi, Civil Appeal No. 110 of 2016 [2020] eKLR, the Court of Appeal held, at paragraph 40, as follows; “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? ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 85 of 112

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(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.” 338. Applying the first and second limbs of that test that is the date of possession and nature of possession, the Plaintiff’s own account is internally inconsistent in a manner the Court cannot ignore. 339. I shall now interrogate these inconsistencies and their effect on the Plaintiff’s claim. The Memorandum of 10th August,1970, produced as Exhibit P1, records a sale of ¾ of an acre, the Plaintiff’s own Supporting Affidavit speaks of a purchase of ¼ of an acre while the Originating Summons pleads the suit portion at 0.27 acres. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 86 of 112

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340. PW1’s oral evidence at one point describes the acreage on the face of the agreement as “0.3 acres.” Compounding this, PW1 at one point in cross-examination stated that he did not purchase the suit property in 1970 before immediately admitting, in the same breath, that he did. 341. The Court does not treat this discrepancy as fatal, but it must be resolved rather than ignored. Two matters assist in that resolution. First, the acreage that recurs with the greatest consistency across the record as pleaded in the Originating Summons, as identified on the survey map produced as Exhibit P5(a) and (b) and independently arrived at by the Defendant’s own surveyor and also confirmed by DW2 in his evidence is 0.27 acres. 342. DW2 himself testified that the surveyor “found encroachment by the plaintiff of 0.27acres” and went so far as to suggest, without documentary support, that the ¾acre figure in the 1970 Memorandum was itself “a resultant of the encroachment of “0.27acres.” Whatever the merit of ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 87 of 112

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that theory, it has the effect of anchoring both the Plaintiff and the Defendant’s evidence to the same physical extent of land i.e. 0.27 acres as the area that is subject of this dispute. 343. Second, land the subject of an adverse possession claim must be a definite, identifiable portion with clear boundaries. In this case, that portion has in fact been fixed by survey. It is not seriously disputed as to its physical location. 344. My view is that an inconsistency in the claimant’s own recollection of the acreage of the suit land as recorded in a fifty-six-year-old handwritten memorandum does not in itself defeat the claim herein provided that the extent of the land actually occupied is otherwise proved. 345. Consequently, I find, on a balance of probabilities, that the portion of the suit parcel which is the subject of this claim is the 0.27 acres shown on Exhibit P5(a) and (b), being the same portion identified by the Defendant’s own surveyor. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 88 of 112

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346. Having resolved this inconsistency, I can now turn to the nature of evidence that must be brought forth by a person claiming adverse possession. The first two are that the aspects of proof relate to the date of possession and nature of possession. 347. It is not seriously disputed that the Plaintiff entered the suit portion in the year 1970 pursuant to some arrangement with the Defendant. DW1 himself, notwithstanding his denial that he signed Exhibit P1, testified that he had sold the land to the Plaintiff but the money had at some point been refunded. 348. DW2 also confirmed that the second signature on Exhibit P1(a) resembled his father’s own signature. PW2 and PW4 both gave independent, largely consistent evidence of a long standing understanding, going back decades, that the Defendant had sold the portion to the Plaintiff. The entry was, therefore, not by force or stealth. On the weight of the evidence adduced, It was permissive and made pursuant to an agreement for sale. I shall in subsequent paragraphs ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 89 of 112

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interrogate the question of occupation by way of sale and adverse possession. 349. The Defendant has raised an objection as to the validity of the alleged sale on grounds that the consent of the Land Control Board was not obtained. I must say from the onset that this defence does not defeat a claim for adverse possession but changes the date when time begins to run. 350. Section 6(1) of the Land Control Act (Cap 302) provides, in relevant part, that the sale, transfer or other disposal of agricultural land situated within a land control area “is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.” 351. Section 8(1) of the same Act provides that “an application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate land ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 90 of 112

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control board within six months of the making of the agreement for the controlled transaction by any party thereto.” 352. It is not disputed that no consent of the Land Control Board was ever sought or obtained in respect of the 1970 agreement. The Defendant relies on this to submit that the underlying sale was void ab initio and cannot confer any rights to the Plaintiff. The Defendant submits that a controlled agricultural land transaction concluded without Land Control Board consent is void and that this position is well settled. 353. This, however, is not the end of the matter. The fact that the underlying agreement may be void does not solely defeat a claim founded not on the contract but on the independent statutory doctrine of adverse possession. Adverse possession runs against title on the basis of factual possession rather than the validity of any purported agreement that may have permitted occupation. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 91 of 112

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354. In light of the foregoing, where a claimant is in exclusive possession of land with the leave and licence of the owner pursuant to an agreement, that possession becomes adverse, and time begins to run, at the point the licence is terminated. Occupation cannot, in law, be both permissive and adverse. It is either one or the other. 355. Applying that principle where the underlying agreement is itself void for want of Land Control Board consent, the High Court, in the Judicial Decision of Mwangi Wambugu v James Mwangi Macharia, Civil Case No. 693 of 2006 [2008] eKLR, at paragraph 9, held as follows; “I rely on the case law of:- Wambugu v Njuguna 1983 Trustee v KLR 172 Wanduru and 1984 Public KLR 314. Concerning purchasers who have taken possession of land they had bought and lived on the land for over 12 years. The court have ruled depending on the circumstances of each case that such buyers of land are and can be in possession from the day the sale ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 92 of 112

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agreement becomes void.” (Emphasis mine) 356. Applying this reasoning to the facts and circumstances of this case, particularly taking the Defendant’s own case that the 1970 agreement was void pursuant to Section 8(1) of the Land Control Act. That is, the consent of the Land Control Board was not obtained within six months after the sale agreement was entered into. Essentially, the Defendant’s case is that the occupation by the Plaintiff from February,1971 was illegal. 357. From that date, the licence under which the Plaintiff had entered the land must be taken to have lapsed. The Defendant took no step, then or at any time before 2022, to reclaim the property or evict the Plaintiff. The Plaintiff’s continued, unchallenged occupation from that point onward was capable of crystalising into adverse possession, notwithstanding the invalidity of the underlying sale. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 93 of 112

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358. This finding is reinforced by the position on registration. It is common ground, from DW2’s own evidence, that the register in respect of Kericho/Kapsuser/1992 was not opened until 24th July, 1980, on account of the subdivision of the parent parcel No. 1631, and that a title deed was not issued to the Defendant until 6th September, 1999. 359. In the Judicial Decision of Daniel Gikundi M’Impwi & 7 others v Charles Mutura Njau, ELC 275 of 2013 (OS) [2019] eKLR, citing Erick Chepkwony Aengwo v Jonathan Rutto Kibiesang, ELC No. 743 of 2012, the Court, at paragraph 29, held as follows; “According to Section 37 and 38 of the Limitations of Actions Act, land must be registered in the name of another for whom the claimant is position. claiming The adverse rational for registration is to be found under section 41 which provides for exemptions of the Limitations of Actions Act in certain case such as ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 94 of 112

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land owned by the Government of Kenya, Settlement Fund Trustee, trust land. In the case of Erick Chepkwony Aengwo Vs Jonathan Rutto Kibiesang ELC 743 OF 2012, the Court held that Adverse Possession does not begin to run for land that is unregistered.” 360. Applying that principle here, the period between 1970 and 1980, during which the suit parcel was unregistered, is excluded from computation. That, however, does not assist the defence by the Defendant. Even excluding those ten years and computing time only from the opening of the register on 24 th July, 1980, the period is well in excess of twelve years. 361. Away for the issue of sale of the suit parcel and failure by the Plaintiff to obtain the consent of the Land Control Board, the Defendant’s central defense is not merely that entry was permissive but that the dispute that exists between him and the Plaintiff is a live, unresolved boundary dispute. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 95 of 112

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362. The Defendant alleges that the Plaintiff’s adjoining registered parcels No. 1627 and No. 1630 have simply encroached onto Parcel No. 1992 a matter that is for the Land Registrar under the Land Registration Act, 2012 to resolve and not a claim of adverse possession before this Court. 363. I am unable to accept the characterization of this dispute as a boundary dispute for reasons that I shall interrogate in the subsequent paragraphs. 364. In the Judicial Decision of Mtana Lewa v Kahindi Ngala Mwagandi, Civil Appeal No. 56 of 2014 [2015] eKLR, the Court of Appeal, at paragraph 6, held as follows; “I have anxiously considered the record of appeal, thereof, the ruling the of grounds the High Court, the rival submissions and authorities cited. Adverse possession is essentially a situation where a person takes possession of ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 96 of 112

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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 possession being of that the the adverse possessor 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.” 365. The Defendant’s case and DW2’s evidence suggests that the encroachment complained of was discovered in 1998 twentyfour years before this suit was filed yet neither the Defendant nor his son took any step, whether by eviction, boundary determination or otherwise to disturb the Plaintiff’s occupation until the year 2022 when he asked the chief to write a letter to the surveyor. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 97 of 112

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366. DW2’s own explanation, that they “could not evict the plaintiff as the same would breach peace,” is, if anything, confirmation of exactly the default or inaction that the doctrine of adverse possession contemplates and not a live and actively pursued boundary claim as suggested by the Defendant. 367. A boundary dispute is ordinarily one in which two registered proprietors of land whose parcels share a common boundary, each assert that the true surveyed boundary between their respective parcels lies in a different place, with each confining his claim to his own title. That is not, on the weight of the evidence, the dispute that presents in the instant suit. 368. The Plaintiff’s case, corroborated by PW2, PW3 and PW4, is that he purchased and has occupied a specific, identified portion of the Defendant’s registered parcel for over five decades, planting trees on it, harvesting trees on it and maintaining an access route across it. This conduct is wholly ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 98 of 112

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inconsistent with a mere claim that a surveyed boundary line has been misplaced by a few feet. 369. Indeed, DW2 conceded that the Plaintiff’s son had been harvesting trees on the disputed portion well before 1998 and that some, though not all, of the trees along the disputed area belong to the Plaintiff’s family an admission difficult to reconcile with a straightforward encroachment by inches which would be consistent with an ordinary boundary dispute. 370. In the Judicial Decision of Daniel Kimani Ruchine & Others v Swift, Rutherford & Co Ltd & Another, Civil Case No. 1401 of 1971, delivered 7th January, 1977 [1980] KLR 10 the Court held as follows; “The Plaintiffs have to prove that they have used this land which they claim, as of right: nec vi, nec clam, nec precario ..... So the Plaintiffs must show that the company had knowledge (or the means of ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 99 of 112

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knowing, actual or constructive) of the possession or occupation. The possession must be continuous. It must not temporary be broken purpose or for any by any endeavours to interrupt it or by any recurrent consideration; see Wanyoike Gathure v Beverly [1965] EA 514, 518, 519 per Miles, J.” (Emphasis mine) 371. In the Judicial Decision of Kweyu v Omuto, Civil Appeal No. 8 of 1990 [1990] KECA 63 (KLR) the Court of Appeal, at paragraph 17, held as follows; “In deciding the issue of adverse possession, the primary function of a court is to draw legal inferences from proved facts. Such inferences are clearly matters of law. Thus, whereas possession is matter of fact, the question whether that possession is adverse or conclusion not to is be matter drawn of legal from the findings on facts - see K J Rustomji on the Law of Limitation and Adverse ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 100 of 112

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Possession, volume II, 5th Edition at pages 1374 and 1375. At pages 1366 and 1367 this author has the following to say: ‘By adverse possession is meant a possession which is hostile, under a claim or colour of title, actual, open, uninterrupted, notorious, exclusive and continuous. When such possession is continued for the requisite period (12 years), it confers an indefeasible title upon the possessor. (Colour of title is that which is a title in appearance, but not in reality). Adverse possession is made out by the co-existence of two distinct ingredients; the first, such a title as will afford colour; and, second, such possession under it as will be adverse to the right of the true owner. The adverse character of the possession must be proved as a fact; it cannot be assumed as a matter of law from mere exclusive possession, however long continued. And the proof must be clear that the party held under a claim of right and with intent to hold adversely. These terms (“claim or ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 101 of 112

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colour of title”) mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others irrespective of any semblance or shadow of actual title or right. A mere adverse claim to the land for the period required to sufficient. In form the other bar words, is not adverse possession must rest on de facto use and occupation. To make a possession adverse, there must be an entry under a colour of right claiming title hostile to the true owner and the world, and the entry must be followed by the possession and appropriation of the premises to the occupant’s use, done publicly.’” (Emphasis mine) 372. The Defendant’s evidence does not establish that the Plaintiff’s occupation was ever forcible or secret, it establishes, at most, that the Defendant disputed the extent of what had been sold. This dispute as to whether the suit parcel was ever sold or the measurement of what was sold only came up in the years ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 102 of 112

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2009,2012 and 2013 (According to PW4’s evidence) and that these disputes were handled by the Assistant Chief. 373. PW4’s evidence is that he attended these meetings but did not chair them. it was also his evidence that one Reverend Ezekiel Kesser who witnessed the sale agreement that was entered into between the Plaintiff and the Defendant also attended the meeting which was held at the Suit parcel. 374. There is no evidence on record of any formal process held contemporaneously with the informal ones, before the year 2022, intended to resolve what the Defendant terms as a boundary dispute. 375. The only survey referred to was commissioned unilaterally by the Defendant’s family, well after the fact, and was not followed by any process in court or before the Land Registrar. This was followed by a letter dated 23 rd July, 2022 which precipitated the present proceedings- as set out by the Plaintiff in his pleadings and set out in his evidence. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 103 of 112

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376. Consequently, this Court finds that what is disclosed in evidence is not a live boundary dispute of the kind that defeats the peaceful and undisturbed element of adverse possession. In the contrary, it is a long acquiesced occupation by the Plaintiff of an identified 0.27-acre portion of land comprised in Kericho/Kapsuser/1992 and only belatedly recharacterised by the Defendant’s family, from the year 2022 as an encroachment. 377. On the question of duration, whether time is computed from the year 1970 (date of entry), 1971 (lapse of the licence on account of failure to obtain consent of the Land Control Board) or 1980 (opening of the register in respect of the suit parcel), it is on any view considerably in excess of the twelve years required by law. The Court of Appeal’s holding in the Judicial Decision of Chevron (K) Ltd v Harrison Charo Wa Shutu, Civil Appeal No. 17 of 2016 [2016] eKLR, delivered 14 October 2016 applies with full force. The Court held as follows; ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 104 of 112

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“A registered owner of land by the provisions of section 7 of the Limitation of Actions Act may not bring an action- ‘….to recover land after the end of twelve 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’. At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and section 38 of the Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land. Therefore the critical period for the determination whether possession was adverse is 12 years and the burden is on the person claiming to be entitled to the land by adverse possession to prove, not only the period possession but was also that his without the true owner’s permission, that the owner was dispossessed or discontinued his ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 105 of 112

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possession of the land, that the adverse possessor has done acts on the land which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it. See Littledale v Liverpool College (1900)1 Ch.19, 21.” 378. Finally, I have noted a further, discrete credibility difficulty in the Defendant’s own case. DW1 first testified that he had sold the suit land to the Plaintiff and that he refunded the purchase money . On cross-examination he confirmed that he personally returned the money, he then, in the same breath, changed his testimony to say that it was in fact his son who returned the money. He could not, however, recall when the Plaintiff had paid it in the first place. This vacillation is significant for two reasons. First, it confirms, on the Defendant’s own account, that a payment was in fact made and at some point it was returned. This is consistent with the Plaintiff’s evidence that he paid Kshs. 10,000/= on 4th May, 2001 which money was intended for processing the title to the suit parcel and that this ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 106 of 112

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money was retuned by mobile money transfer only on 18 th March, 2022 which date is three months before this suit was filed and many years after it was paid. 379. A refund tendered only after the Defendant’s family begun asserting a competing claim over the suit parcel is more consistent with an attempt, after the fact, to undo a completed and long-acted-upon land sale transaction than with a contemporaneous denial that any transaction occurred at all. 380. The internal inconsistency in DW1’s account of who made the refund and when it was made further undermines the credibility of his denial that he never entered into or signed the 1970 agreement, a denial that sits uneasily beside his own son’s testimony that the second signature on Exhibit P1(a) resembles his father’s (DW1) signature. 381. Having weighed all evidence, I finds that the Plaintiff has, on a balance of probabilities, established that he entered the 0.27acre portion comprised in Kericho/Kapsuser/1992 pursuant ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 107 of 112

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to an arrangement with the Defendant in the year 1970, that when whatever licence or permission underlying that entry lapsed at the very latest by 1980, the Plaintiff’s possession was thereafter and continuing to the date of filing this suit open, exclusive, continuous and without force. 382. I also find that that the Defendant and his family were aware of that possession, took no step to disturb it for well over twelve years, whether computed from 1970, 1971 or 1980 and that the characterisation of the dispute as a mere boundary disagreement cannot hold on the face of the evidence adduced. 383. In conclusion and in answer to this first question, I find that the Plaintiff has accordingly proved his claim of having acquired title to the 0.27-acre portion of land comprised in Kericho/Kapsuser/1992 by way of adverse possession. B. Whether the prayers sought in the Originating Summons should be granted. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 108 of 112

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384. Having found in favour of the Plaintiff on the first issue, it follows, in principle, that the Plaintiff is entitled to the substantive orders sought in the Originating Summons namely, a declaration that the Defendant’s title to the 0.27-acre portion has been extinguished, and an order directing the Land Registrar, Kericho County, to sub-divide and register the Plaintiff as proprietor of that portion in place of the Defendant. 385. One qualification is necessary; Prayer (a) of the Originating Summons was sought pending the hearing and determination of the suit. The same is spent but I must mention that at various points in the Plaintiff’s testimony he denied that he was seeking orders in respect of an access road and insisted that his claim was to the land itself and at other times in his testimony he explained that the access road referred to in the Originating Summons was the very portion of land he says he purchased and occupies. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 109 of 112

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386. The Court accordingly grants prayers (b), (c) and (d) of the Originating Summons, to the extent they are consistent with the 0.27-acre portion of land. C. Who should bear the costs of the suit? 387. The general rule is that costs follow the event. This is in accordance with Section 27 of the Civil Procedure Act (Cap 21). A successful party should ordinarily be awarded the costs of the action unless the Court, for good reason, directs otherwise. No such reason has been shown here. The Plaintiff, having succeeded is entitled to costs. DISPOSITION. 388. In the result, I find and order as follows; a. A declaration is hereby made that the Plaintiff, Wesley Arap Tonui has acquired, by way of adverse possession, the portion of land measuring 0.27 acres comprised in Land Title Number Kericho/Kapsuser/1992. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 110 of 112

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b. The Land County Registrar, shall Kericho sub-divide and register Wesley Arap Tonui as the registered owner of the 0.27 acre portion of land comprised in Land Title Number Kericho/Kapsuser/1992 in place of Samuel Kipngeno Birir and/or in place of any other person claiming through him. c. The Plaintiff shall have costs of this suit. 408. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 1ST DAY OF OCTOBER, 2026. L. A. OMOLLO JUDGE. In the presence of: Mr. Chelule for the Plaintiff. Mr. Nyaingiri for the Respondent. Court Assistants; Mr. Joseph Makori. Miss Sharon Chelangat. ---------------------------------------------------------------------------------------------------------------------------------------ELC MISC CASE NO. E006 OF 2022 (OS) [KERICHO] Page 111 of 112

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