John Okello Opar v Joel Juma Ongere & Zakayo Nyonje Ongere (Sued in their own capacity and also as Administrators of the Estate of Opap Uma - Deceased)

1) A declaration that the defendant’s rights to recover parcels of land known as CENTRAL KASIPUL/KAWERE KAMAGAK/477 measuring 1.5Ha and CENTRAL KASIPUL/KAWERE measuring 0.46Ha KASIPUL/KAWERE KAMAGAK/613 and CENTRAL KAMAGAK/471 measuring 0.48Ha is barred under the limitations of actions Act Chapter 22 Laws of Kenya and his title thereto extinguished on the grounds that the plaintiff herein has openly, peacefully and continuously been in occupation and possession of the aforesaid parcel of land for a period exceeding 12 years. 2) There be an order that the plaintiff be registered as the proprietor of parcels of land known as LR No. CENTRAL KASIPUL/KAWERE KAMAGAK/477 measuring 1.5 Ha and CENTRAL KASIPUL/KAWERE KAMAGAK/613 measuring 0.46Ha in place of the 1st Defendant who currently holds the title to the suit properties. 3) There be an order that the plaintiff be registered as the proprietor of parcel of land known as LR No. CENTRAL KASIPUL/KAWERE KAMAGAK/471 measuring 0.48 Ha in place of the 2 nd Defendant who currently holds the title to the suit property. 4) There be an order restraining the Defendants either by themselves, agents, servants and/or employees from interfering with the plaintiff’s HB ELC E017 OF 2025 (OS)-JDGT 2

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peaceful possession and occupation of the said parcels of land known as CENTRAL KASIPUL/KAWERE KAMAGAK/477 measuring 1.5Ha and CENTRAL measuring KASIPUL/KAWERE 0.46 Ha KAMAGAK/613 and CENTRAL KASIPUL/KAWERE KAMAGAK/471 measuring 0.48 Ha in any manner whatsoever and/or howsoever. 5) The Deputy Registrar and/or the Executive Officer of the Honourable Court be directed and/or ordered to execute the transfer instruments and all attendant documents, to facilitate the transfer and registration of the parcels of land known as CENTRAL KASIPUL/KAWERE KAMAGAK/477 measuring 1.5 Ha and CENTRAL KASIPUL/KAWERE KAMAGAK/613 measuring 0.46 Ha and CENTRAL KASIPUL/KAWERE KAMAGAK/471 measuring 0.48 Ha in favor of the plaintiff, in the event of default by the Defendants to execute the necessary transfer instruments. 6) Costs of this originating summons be borne by the defendant. 7) Such further and/or other orders be made as the court may deem fit and expedient, in the circumstances of this case. 2. The Summons was based on the grounds on the face of it and supported by the averments in the Supporting Affidavit sworn by the Plaintiff. He deponed that the Defendants/ Respondents in the Summons were the registered proprietors HB ELC E017 OF 2025 (OS)-JDGT 3

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of the suit parcels. He also deponed that the Defendants were also the administrators of the Estate of OPAP UMA (deceased). 3. He stated that in 1991, he took possession of the suit parcel number CENTRAL KASIPUL/KAWERE KAMAGAK/477 on which he built his house. He has been living in it peacefully to date. He added that he also built a house for his late mother on the said parcel and upon her demises, she was buried on the said parcel. 4. He deponed that the Defendants had never used the suit parcels. He further deponed that he had also leased parcel number CENTRAL KASIPUL/KAWERE KAMAGAK/613 to one Jane Akinyi Isaiah. 5. The Plaintiff went on to depone that he had been in actual possession of the suit parcels openly and uninterrupted for more than 12 years. He added that the Defendants never raised any complaint. He further deponed that he was entitled to be registered as the owner of the suit parcels and urged the court to order the Defendants to transfer the same to him. 6. The Respondents filed a Replying Affidavit sworn on 8 th April, 2025 in response to the Summons. They stated that they were the registered proprietors of the suit parcels. They further stated that they had always had possession of the suit parcels save for the Plaintiff’s fraudulent attempt to disinherit them in 2019. They averred that the Plaintiff had been in occupation of HB ELC E017 OF 2025 (OS)-JDGT a portion of Central Kasipul/ Kawere 4

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Kamagak/477 with their full authority, supervision and restrictions on how and where he could construct his house. 7. They averred further that it was not until the Plaintiff took advantage of their goodwill and attempted to register the suit land to his name. They stated that the doctrine of adverse passion did not apply in the present case since the Plaintiff had occupied only a portion of the parcel 477 with their authority and supervision. 8. They added that it was as a result of their goodwill and generosity that they allowed the Plaintiff’s mother to also occupy the same. They denied that the Plaintiff had adversely acquired the suit parcel. 9. The 1st Defendant stated that Opap Uma (deceased) together with his wife Siprosa Abudho had adopted him as their son. He added that the deceased had no child of their own. He went on to state that the deceased married one, Margaret Achieng, the Plaintiff’s mother in 1960 as his second wife. 10. He stated that Margaret later left the marriage and filed for divorce. He added that she left the marriage without a child with the deceased. They stated that the deceased and his wife Siprosa took them in as their children. Further, that it was only until the Plaintiff’s mother returned and out of their generosity, agreed to accommodate her. 11. They went on to state that in 2012 the Plaintiff’s mother died and they agreed to bury her on the suit parcel near her house. That later in 2016, the Plaintiff requested the 1 st Defendant to allow him construct a family village house on a portion of parcel No. 477 which he agreed to. They added HB ELC E017 OF 2025 (OS)-JDGT 5

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that it was then that the Plaintiff took advantage and filed a succession matter without their knowledge which the court later established that the Plaintiff was not the rightful beneficiary and directed that proper succession be done. 12. They stated that at no point was the Plaintiff in adverse possession of any of the three parcels. They urged the court to dismiss the application with costs. 13. He urged the court to dismiss the Plaintiff’s claim with costs. PLAINTIFF’S CASE 14. During the oral testimony, John Okello testified as PW1 and adopted the deposition in his affidavit sworn on 17 th July, 2025 as his evidence in chief. He also produced the annexures which were marked as PMFI 1-22, as P Exh 1-22. 15. i. The documents produced in evidence were: Certificate of official search for Central Kasipul/ for Central Kasipul/ for Central Kasipul/ Kaware/Kamagak/477 as PExh 1. ii. Certificate of official search Kaware/Kamagak/471 as PExh 2. iii. Certificate of official search Kaware/Kamagak/613 as PExh 3. iv. PExh 4, Copy of family Tree drawn Ass. Chief (Original copy of lower Court). v. PExh 5, Copy of Divorce Proceedings vi. PExh 6, Court Order in Succession Cause No. 86 of 2019 vii. PExh 7, Original of Ruling in Succ. Cause No. 86 of 2019 (28/10/2021) HB ELC E017 OF 2025 (OS)-JDGT 6

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viii. PExh 8, Copy of Certificate of Urgency dated 26/04/2021 ix. PExh 9, Copy of OB No. 22/21/07/2020 (original) x. PExh 10, Copy of Reply from Ombudsman, dated 25/09/219 xi. PExh 11, Copy of Falsified Death Certificate for 18/06/2018 xii. PExh 12, Original Certificate of Death for Opar Uma xiii. PExh 13, Confirmation of Grant (original) xiv. PExh 14, Letters of Administration (original) xv. PExh 15, Copy of Certificate of Official Searches dated 12/03/2019 xvi. PExh 16, Court orders of Hon. Ongeri SPM, dated 21/05/2024 xvii. PExh 17, Title Deed for parcel No. Certificate of official search for Central Kasipul/ Kaware/Kamagak/, 613, 471, & 477. xviii. PExh 18, Copy of Applicant’s national Identity Card (ID) xix. PExh 19, Court orders dated 11/03/2021 and 18/08/2022 xx. PExh 20, Ruling dated 18/8/2022 16. It was his testimony that he has been on the suit parcels Kasipul/Kawere/Kamagak/477, 471 and 613 since 1991. He testified that he resided on 477 and cultivated on 471. He went on to testify that his mother died in 2012 after which they stopped cultivating. 17. He further testified that the Defendants were currently cultivating the parcel after they processed their title deeds after succession proceedings in 2023. He added that he has HB ELC E017 OF 2025 (OS)-JDGT 7

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been residing on parcel 477 until he received an eviction notice. PW1 testified that by the time the Defendant entered parcel 613, he was already in possession. 18. Upon cross examination by 1st Defendant, he stated that he was 11 years in 1991 and that he was living with her late mother in Rongo. He further stated that when they moved to the suit land, they did not find his father. He added that he died in 1974. 19. He denied that he was born in Aolo. He confirmed that when they moved to Aolo they were received by Jonathan Ongere, the 1st Defendant’s father. PW1 stated that he did succession in 2019 when he was living on the suit parcel. 20. He stated he did not know why the court in Oyugis being Succession Cause 86 of 2019 revoked his grant of letters of administration. He added that he was not aware that succession was later done after nullification of the grant. He denied having done Succession through the Chief’s assistance. He stated that the land belonged to Opap Uma (deceased), his father. He admitted that during Succession proceedings, the court referred them to the chief so as to confirm the family tree. 21. Upon cross examination by the 2nd Defendant, he stated that he was born in 1978 and that Opap was his father as he did not know his biological father. He further stated that the three parcels were initially in Opap Uma’s name with the 2 nd Defendant as the eldest grandson. 22. He stated that he applied for a restriction without informing him (defendant) since the land belonged to his HB ELC E017 OF 2025 (OS)-JDGT 8

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father. He also stated that he applied for his Identity Card (ID) using his father’s name despite his father having died 5 years before he was born. 23. Upon further cross examination by the 1 st Defendant, PW1 stated that he had built his home on parcel no 477 in the year 2016. He further stated that the 1st Defendant had been on the land for over 18 years when the chief gave him the letter for succession. He denied having stated before court that his father’s name was Wanyanga Kimibeo. He stated that only his mother knew his name. He further denied knowing Akoth Wanyanga. 24. On re-examination, he stated that he lived on parcel No. 477 with the 1st Defendant. Further, PW1 clarified that he had occupied half of parcel 477 while the 1 st Defendant occupied the other half. 25. Benson Oyoo Midigo the chief North Kamagak Location testified as PW2. It was his testimony that the parties in the present suit hailed from his location and he knew where they lived. 26. He testified that he knew the Plaintiff since the time he came with his mother to their area in 1991. He further testified that they settled on the parcel of land that belonged to Opap Uma being Kasipul/Kawere Kamagak/477. He testified that the Plaintiff had been on the land for over 30 years and cultivated on the other two parcels located near the riverside. 27. He went on to testify that the Plaintiff later stopped cultivating when they had a case with the Defendant. He HB ELC E017 OF 2025 (OS)-JDGT 9

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testified that he wrote the letter dated 21 st August, 2014 which he produced as his evidence. 28. Upon cross examination by the 1 st Defendant, PW2 stated that when Opap died in 1973, he was 15 years old. He further stated that he knew where Opap and Ongere lived as they shared a fence. He stated that he knew the Plaintiff in 1991 when he came to pick a letter for Succession. He stated that he did not issue the 1st Defendant with the letter since he was not Opap’s son. He admitted that the Plaintiff was also not his son. 29. PW2 stated further that from the family tree, Mwamba, Agar, Odum, Awuor and Oyudo were the sons to Opap. He confirmed that the 1st Defendant had Opap’s death certificate. He added that he gave the Plaintiff the letter since he was Margaret’s son who was the wife to the deceased. 30. He stated that the death Certificate the Plaintiff took showed that he was the deceased’s son. He further stated that the chief’s letter assisted him to put a restriction on the suit parcel. 31. PW2 went on to state that the Plaintiff’s mother had separated with Opap (deceased) but they later reunited in 1991. He stated that Wanyanga came from Rachuonyo North Sub-County and that he was married to his niece. He stated that he was not aware if the Plaintiff’s mother was a co-wife to his niece. He denied that he was forcing the Plaintiff to have what was not his. 32. Upon cross examination by the 2nd Defendant, he stated that before he did a letter, the family ought to have sat down HB ELC E017 OF 2025 (OS)-JDGT 10

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and deliberate on who is to be the administrator and beneficiaries of the deceased’s estate. He added that the letter he wrote was for the family of Opap (deceased) and not Onyicho. He added that he did not know whether Ongere or Onyicho was the deceased’s brother. 33. PW2 stated that the deceased left his first wife Syprosa Abudho as the custodian of the deceased’s property. He further stated that upon Syprosa’s death, she left Margaret Achieng, the Plaintiff’s mother on the land. He added that he was not aware if Margaret had filed for divorce with the deceased in 1970 or whether dowry was returned after divorce. He added that the 2nd Defendant never got in touch with him in order to resolve issues. 34. PW2 went on to state that he wrote a letter to the Oyugis Court stating that the deceased was survived by his two wives and three children. He admitted that he did not know in whose name the suit parcels are registered. He also admitted that he did not know the Plaintiff’s father. He further admitted that he did not know for how long the deceased lived with the Plaintiff’s mother or whether she got married again. 35. Upon re-examination, he stated that at the time he wrote the letter, the Plaintiff had occupied the suit parcels. He clarified that the Plaintiff left cultivating the other parcels of land when the succession cause in Oyugis was still ongoing. 36. That marked the close of the Plaintiff’s case. DEFENCE CASE HB ELC E017 OF 2025 (OS)-JDGT 11

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37. Joel Juma Ongere testified as DW1 where he testified that he resided on the suit parcel but currently in Nairobi. It was his testimony that the 2nd Defendant was his eldest brother. He further testified that the Plaintiff was his neighbor and that they were not related in any manner. 38. He testified that the Plaintiff’s mother was married in 1960 to his uncle Opap Uma Onyancho (deceased), as the 2 nd wife. He added that she stayed with the deceased stayed for two (2) years and then ran away. 39. DW1 produced their joint affidavit sworn on 8 th April, 2025 which was adopted as his evidence in chief. He also marked its annexures as DMF1-15, which he later produced and were DExh 1 to 15, upon the Defendants availing the originals of some like title deeds and certified copies as the Divorce proceedings. 40. He testified that he lived with his uncle’s family by the time he died in 1973. He further testified that at that time, Siprosa had no child and that he was in class four. 41. He went on to testify that land adjudication was done between 1971-1974. He testified that his father had seven sons and that he was the 5th born. He also testified that his uncle told his father not to allocate him land and that was how he ended up taking over the suit parcel. It was his testimony that Siprosa died knowing that he was the custodian of the suit parcel. He testified that the return of Margaret was unexpected since she had left in 1962. 42. Upon cross examination, DW1 was referred to the Replying Affidavit of which he confirmed that there was no paragraph I HB ELC E017 OF 2025 (OS)-JDGT 12

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contained that disputed the Plaintiff’s claim on parcel no. 613 and 471. 43. He stated that he relied on paragraph 19 of the affidavit to show ownership. DW1 further stated that he lived together with the Plaintiff on the suit parcel. He also stated that he had the title deed to the parcel. 44. He referred to the photo marked as PExh 3a which had a house. He stated that he could not recognize the grave of the Plaintiff’s mother. 45. DW1 was referred to PExh 2a where he stated that it belonged to the Plaintiff. He stated that he could not recall but that it was around 2009 and 2010. 46. He confirmed that the Plaintiff and his mother came to the suit land parcel no. 477 in 1991, and the Plaintiff was in occupation to date. He stated that they did not share the suit parcel in equal portions but that he occupied ¾ of the suit land. 47. DW1 stated that he worked at Capital Markets Authority from 1995 to 2006. He admitted that during that period, he has been in Nairobi and his step mother Grace Ongere (deceased) was the one cultivating the land. He stated that his stepmother died in 2005 together with his only son and that her remaining daughters were all married. He admitted that he had not cultivated the suit land. 48. DW1 further stated that he had six brothers. Further, he admitted that the brothers were not included in the succession proceedings. He also stated that the Plaintiff was at liberty to go to Wayaga’s home in the event he is evicted. HB ELC E017 OF 2025 (OS)-JDGT 13

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49. He went on to state that the Plaintiff started using the suit parcel after they obtained the title deeds on 4 th December, 2024. He added that prior to that, Grace Ongere (deceased) was using the parcel. He stated that upon her demise, Akinyi, the wife to her son Isaiah continued using it. 50. He denied that the 2nd Defendant was using the suit parcel. DW1 stated that Zakayo has been in occupation of parcel 613 since 2003. He added that Zakayo never occupied the suit parcel in 2023. He admitted that he had no witness that would corroborate their evidence. He stated further that he had the plan of using parcel number 613. He also stated that the case he had filed in Oyugis had been transferred to this court. 51. He clarified to the court that Margaret returned in 1991 and that his father Jonathan Ongere agreed to her stay. He confirmed that Margaret lived on the suit land until when she died and was buried on the land. He stated that Margaret was his aunt. 52. He went on to state that hostility begun when the Plaintiff filed the succession matter without their knowledge. He confirmed that adjudication took place in 1972. That was when his father was registered as the owner of the suit parcel. 53. DW1 stated that some of his elder brothers got registered as owners of other parcels during the adjudication process while the younger brothers equally divided their father’s land. 54. He stated that the Plaintiff’s mother lived with the 1 st wife of his uncle Opap as co-wives. He added that she did not use parcel 471 as it was being used by Grace, the 2nd wife to his father. HB ELC E017 OF 2025 (OS)-JDGT 14

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55. DW1 stated that the said land was Opap Uma’s and that she was using it with the permission of Syprosa Abudho. He went on to state that parcel 613 was used by Syprosa and upon her demise, Grace leased it to third parties. 56. He added that it was until he got the title after succession then Zakayo started using it. DW1 stated that the suit land was Syprosa or Opap Uma’s land. 57. Zakayo Nyonje Ongere testified as DW2 and added that they have lived peacefully on the suit parcel with DW1 since their mother came with them to the land when he was 13 years. 58. He testified that in 1991, he was in Kilifi but heard that Margaret wife to his uncle Opap returned to the suit parcel with her three children who had been sired by her 3 rd husband. 59. It was his testimony that their father had already instructed them how they should divide both his land and that of his late uncle Opap. He went on to testify that they were 7 brothers and that he was the one instructed to do the division. He testified that the land parcel was allocated to six of them to the exclusion of the 1st Defendant who lived with his uncle. He also testified that the Plaintiff was not allocated any piece of land since he was under his mother. 60. DW2 testified that they had lived on the suit parcel in peace until 2018 when the Plaintiff conducted succession proceedings without informing them. His testimony was that the Plaintiff’s action rendered the 1st Defendant landless since all the parcels converted to his name. HB ELC E017 OF 2025 (OS)-JDGT 15

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61. He further testified that the Plaintiff admitted in court that he did not know his father. He added that parcel 471 was used by Grace and that there was no trust created since it was in the name of Opap. 62. It was his testimony that the remining three brothers agreed to occupy the other three parcels which were in the name of Opap. He testified that the succession cause in Oyugis was ruled in their favour. 63. Upon cross examination, DW2 admitted that they never disputed the Plaintiff’s claim in their affidavit specifically in relation to parcel 613 and 471. He confirmed that he was the registered owner of parcel 471. 64. He stated that the Plaintiff had occupied parcel 477 the suit property since 1991. He admitted that he had not used or occupied parcel 471 despite being the owner. 65. He went on to state that he had been employed in 1970 and retired in 2002, after being transferred from one station to another thus he had not utilized the land since 2003. 66. He admitted that his brother the 2nd Defendant has also not used parcel 613. He further admitted that he was responsible for the distribution of the late Opap Uma’s land. He added in evidence that he gave the 1st Defendant the suit parcel 477 and that he occupied a portion while the Plaintiff occupied another portion of the suit parcel. 67. He stated that they apportioned half of the suit parcel to the Plaintiff and the other to the 1 st Defendant. He admitted that the photos annexed by the Plaintiff was a true picture of the position on the ground. HB ELC E017 OF 2025 (OS)-JDGT 16

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68. He stated that the matter in Oyugis Law Court did not result in eviction of the Plaintiff from the suit parcel. 69. That marked the close of the 1st and 2nd Defendants’ case. PLAINTIFF SUBMISSIONS 70. Learned counsel for the Plaintiff filed his submissions dated 10 th March, 2026 in which he gave the background of the case. He identified three issues for determination which were: i. Whether the Plaintiff has met the threshold for adverse possession over the occupied portions including the 0.75 Ha half of parcel 477 thereby extinguishing the Defendants’ titles under the Act. ii. Whether the Plaintiff merits registration as proprietor of these portions. iii. Whether the Court should award injunctive relief execution of transfers and costs to the Plaintiff. 71. On the first issue, counsel relied on Sections 7, 13, 17 and 38 of the Limitation of Actions Act and Section 28 of the Land Registration Act. He also relied on the case of Mbira v Gachuhi 1 EA 137, Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR and Koros v Masanya [2025] KEELC 5598 (KLR). 72. He submitted that the Defendants’ admission of the Plaintiff’s non-consensual entry from the onset established adverse and non-permissive nature of possession. He further submitted that the other half of parcel 477, the Plaintiff’s homestead, burial HB ELC E017 OF 2025 (OS)-JDGT 17

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site, structures, trees and fence evidenced by photographs and the chief’s evidence demonstrated open and notorious acts. 73. He further submitted that for parcels 613 and 471, the Defendants' concessions that they had never utilized the said parcels coupled with the Plaintiff’s cultivation and leasing underscores full exclusive control. 74. The second issue counsel submitted that the continuity of the Plaintiff’s occupation on the suit parcels spans over 34 years commencing from the year 1991. He submitted that the Defendants’ inaction, residing in Nairobi caused the effluxion of time unchecked and by 2003, the Plaintiff’s prescriptive rights had crystallized. 75. Learned counsel further submitted that by the time the Defendants filed succession proceedings for the deceased estate and obtained their title deeds on 10 th April, 2023, the titles had already been extinguished by operation of law in 2003. 76. It was his submission that the Defendants produced no evidence or witness to substantiate any use or possession of the suit properties. He relied on the case of Bukenya V Uganda [1972] EA 549 and Nesco Services Limited V CM Construction (EA) Limited [2021] eKLR. 77. He furthers submitted that the Defendant also admitted that the Plaintiff’s photographs accurately depicted his occupation. He cited the case of Elma v Heard [2025] KEELC 3155 (KLR). 78. In conclusion, counsel submitted that the Plaintiff had met the requirements for adverse possession. HB ELC E017 OF 2025 (OS)-JDGT 18

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DEFENDANTS SUBMISSIONS 79. The 1st Defendant’s counsel for filed his submissions dated 7 th April, 2026. As for him he identified the following issues for determination: a. Whether the Plaintiff’s occupation was adverse or permissive. b. Whether the Plaintiff has established exclusive possession c. Whether the Plaintiff has demonstrated continuous and uninterrupted possession for twelve (12) years. d. Whether time could legally run in favour of the Plaintiff. e. Whether the Plaintiff is entitled to the reliefs sought. 80. On the first issue, he submitted that the Plaintiff acquired permission from the Respondents to establish his home on Parcel No. 477 thus confirming that the Plaintiff had acknowledged that the Respondents were the owners of the suit properties, with no intention of acting in a manner that suggested intentions to exclude them from possession of the said lands. He relied on the case of Chevron (K) Ltd V Harrison Charo Wa Shutu [2016] eKLR and Wambugu v Njuguna [1983] KLR 172. 81. He further submitted that the Plaintiff’s occupation, being rooted in permission, goodwill, and supervision, lacked the animus possidendi (intention to possess adversely) and is therefore legally incapable of grounding a claim for adverse possession. HB ELC E017 OF 2025 (OS)-JDGT 19

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82. On the second issue, he submitted that the Plaintiff never had exclusive possession of any of the three parcels of land. He further submitted that the Plaintiff established his home on a portion of parcel CENTRAL KASIPUL/KAWERE-KAMAGAK/477 in April 2016, while the 1st Defendant has lived on the same parcel of land since his birth and established his home in December, 2003. 16. 83. He added that the Plaintiff was just a hostee of goodwill of the Defendants who who allowed him to stay on a portion of parcel CENTRAL KASIPUL/KAWERE-KAMAGAK/477. 84. He submitted further that the Plaintiff admitted that the 1 st Defendant admitted that the 1st Defendant occupied the largest portion of the suit parcel CENTRAL KASIPUL/KAWERE- KAMAGAK /477, thereby destroying any assertion of exclusivity. He argued that the Plaintiff and the 1 st Defendant have been in possession of parcel No. 477, while the Plaintiff’s possession has been through the permission of the owners of the land. 85. On the third issue, counsel relied on the case of Githu v Ndeete [1984] KLR 776 and submitted that an adverse possessor must not and cannot be a person whom the owner of the land has invited to their land or who admits that the owner of the land is in possession and owns the land in question. 86. He further submitted that the 1 st Defendant became aware of the fraudulent dealings in relation to the suit parcels in 2020 after the impugned illegal Succession of 2019. He also submitted that the Plaintiff’s stay was not continuous but interrupted. It was his contention that the Plaintiff instituted succession proceedings on the subject parcels of land claiming HB ELC E017 OF 2025 (OS)-JDGT 20

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beneficiary status. Counsel argued that the Plaintiff cannot both in law or equity, claim ownership through succession and simultaneously assert adverse possession. 87. On the fourth issue, he submitted that the Defendants had neither been dispossessed nor discontinued their possessions of the parcels of land in 1991 or 2016. He argued that the claim for adverse possession could only make sense if the Plaintiff claimed that time begun to run from 2016 when the Plaintiff requested the Respondents to allow him establish his home thereon. 88. It was his submission that the Defendant’s continuous assertion of ownership through litigation, occupation and administrative processes since the Plaintiff began causing chaos in 2016, halted any possible accrual of time from 2016. 89. Counsel went on to submit that the Plaintiff’s assertions that time began running in 1991 cannot hold since by 1991 since the Plaintiff’s stay on the suit land was with full knowledge, consent, control and permission by the Defendants. He added that time could not and did not run in favour of the Plaintiff at any material time. 90. On the fifth issue, it was his submission that the Plaintiff fraudulently initiated succession proceedings, obtained titles which ended up being revoked by the court. He argued that adverse possession could not be used as a shield to sanitize unlawful or irregular acquisition of land. On this final issue, he submitted that the Plaintiff was a licensee whose permission was withdrawn and now remained on the suit land as a HB ELC E017 OF 2025 (OS)-JDGT 21

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trespasser. He submitted that the Plaintiff failed to establish the essential elements of adverse possession. 91. Learned counsel for the 2nd Defendant filed his submissions dated 7th April, 2026 in which he identified seven issues for determination, to wit: a) Whether the Plaintiff’s claim is tainted by fraud, misrepresentation, and illegality in the acquisition of identification documents and title to the suit property. b) Whether the Plaintiff has approached this Honourable Court with clean hands so as to warrant the grant of equitable relief. c) Whether the Plaintiff’s claim for adverse possession is an afterthought following failed attempts to acquire the suit property through succession proceedings. d) Whether the Plaintiff’s conduct has disrupted peaceful occupation and negates any claim of peaceful, open, and uninterrupted possession. e) Whether the Plaintiff has an alternative home and lacks any equitable or legal basis to continue occupying the suit property. f) Whether administrative irregularities and actions by public officers can confer legality upon the Plaintiff’s claim. 92. On the first issue, counsel submitted in the affirmative and argued that the Plaintiff procured registration documents including identification documents, by falsely representing HB ELC E017 OF 2025 (OS)-JDGT 22

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himself as a son of the deceased OPAP UMA OYUCHO despite being born after the deceased’s demise. 93. He added that he leveraged such misrepresentation and irregularly acquired title to the suit properties without the Defendants knowledge. It was his submission that the Plaintiff’s claim being anchored on a foundation of illegality, was therefore unsustainable ab initio. 94. Going to the second issue, counsel while submitting in the negative, he argued that the Plaintiff’s conducted demonstrated a pattern of bad faith. He submitted that the Plaintiff gave contradictory assertions regarding his paternity in different, false claims of lineage to the deceased and prior attempts to unlawfully benefit through succession proceedings before resorting to adverse possession claims. 95. He submitted that adverse possession claim is an equity remedy that must be based in equity. He further submitted that the Plaintiff’s conduct fell short of this threshold and disentitles him from the equitable indulgence by this court. 96. On the third issue, he submitted that the Plaintiff’s invocation of adverse possession was not genuine but a fallback position following failed attempts to acquire the suit property through succession. the Plaintiff’s occupation was never adverse, but rather premised on an asserted familial entitlement. 97. On the fourth issue, he submitted that submits that the Plaintiff’s actions have fundamentally disrupted the longstanding peace and order that existed within the family where the Defendants come from until when disputes arose around HB ELC E017 OF 2025 (OS)-JDGT 23

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the year 2017–2019. He cited the case of Wanje v A.K. Saikwa [1984] KECA 58 (KLR). 98. It was his submission that the Plaintiff’s occupation, being the subject of permission and that with active dispute and conflict since 2020 could not meet the threshold of peaceful and uninterrupted possession between 2016 and 2019. 99. On the fifth issue, counsel submitted that the Plaintiff should not be allowed to displace the rightful owners of the subject parcels of land while having an alternative place of abode and no lawful claim to the suit property. 100. On the final issue, counsel submitted that the Plaintiff’s claim was facilitated by improper administrative support and actions including letters and endorsements by the local Chief Benson Oyoo Midigo purporting to introduce the Plaintiff as a son of the deceased Opap Uma. 101. He submitted that the Plaintiff cannot rely on such irregular processes to anchor his claim for adverse possession or any claim at all. 102. In conclusion, he urged the court to dismiss the Plaintiff’s claim. ANALYSIS AND DETERMINATION 103. This Court has carefully considered the entire Claim of the parties, that is to say, the pleadings by way of the Summons and the responses thereto, the submissions, the law and the evidence. It is of the view that the issues that arise for determination are: a) Whether the plaintiff proved his claim for adverse possession of the portion of the suit parcel. HB ELC E017 OF 2025 (OS)-JDGT 24

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b) Who should bear the costs of the suit. 104. On the first issue, it is trite law that he who alleges the existence or non-existence of a fact or fact which they wish he court to rely on to arrive at a conclusion must prove it or them. Section 107 of the Evidence Act provides; (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 105.Further, Section 109 of the Evidence Act provides as follows; “The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 106. The doctrine of adverse possession is founded under Sections 7, 13, 17, 37 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, a party must prove very specific facts thereto, being that he must show that he had uninterruptedly and openly or notoriously possessed, occupied the suit land continuously with the intention to dispossess the owner, and HB ELC E017 OF 2025 (OS)-JDGT 25

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the Defendant (owner) was aware of such and did not do anything about with regard to repossessing or reentering it within 12 years or sue to claim it. Section 7 of the Act provides as follows: “An action may not be brought by any person 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. Section 13 “(1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land…” 107. There is one point this Court ought to address first. Regarding claims or even defences, parties are bound by their pleadings. They must conduct their cases or adduce evidence in line with their pleadings. They cannot trudge outside their framed ‘cases’. 108. It was the Plaintiff’s case that he has been in uninterrupted possession of the suit properties since 1991. Further that he had built a house where he resides, grown trees, does HB ELC E017 OF 2025 (OS)-JDGT 26

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farming and that the suit land had a burial site for his late mother. The Plaintiff claimed further that he has also been in occupation of a portion of the 1st Defendant’s parcel being 0.75 ha of 477 with the Defendants’ knowledge. 109. It was PW1’s evidence that when he moved to the suit land with his late mother, they were received by Jonathan Ongere, the 1st Defendant’s father. PW1 also testified that Opap Uma was his father. It was also the Plaintiff’s case that he has been in uninterrupted occupation of the suit parcels from 1991 with the Defendant’s knowledge. 110. The Defendants on the other had argued that the Plaintiff’s stay on the suit parcel was within their controlled permission and that the Plaintiff took advantage of their goodwill. They also argued that the Plaintiff fraudulently colluded with the Chief and filed succession proceedings without their knowledge. 111. It was the Defendants claim that the suit land belonged to their late uncle Opap Uma and that they were the custodian of the same. It is not in dispute that the Succession proceedings as filed by the Plaintiff in Oyugis Law Court in 2019 was nullified and the Defendants filed fresh succession proceedings and a grant was issued. 112. The Defendants also argued that the Plaintiff’s occupation was never peaceful as alleged as the same was interrupted all along by the farming by their mother Siprosa, the succession case and by the fact that the 1 st Defendant was in occupation of half of parcel 477. He added that the Plaintiff HB ELC E017 OF 2025 (OS)-JDGT 27

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was only permitted occupation after her late mother returned. 113. They contend that the Plaintiff could not file succession proceedings on the suit property which upon failing, later file an adverse possession claim. It was their contention that the present suit was merely an afterthought. 114. This claim and evidence must be tested against the position of the law on adverse possession. In the Court of Appeal case of Kisumu Civ App. No. 110 of 2016 Richard Wefwafwa Songoi V Ben Munyifwa Songoi [2020] eKLR the court held that a person claiming adverse possession must establish the following: (a) On what date he came into possession. (b) What was the nature of his possession? (c) Whether the fact of his possession was known to the other party. (d) For how long his possession has continued and (e) That the possession was open and undisturbed for the requisite 12 years 115. In addition, the case of Abdulkhall Mohamed Abdulkhalik Mazurui & 2 others v Josiah Kafuta J. Mtila & another [2021] KECA 653 (KLR) held that: “The burden of proving adverse possession lay with the 1st respondent who made the claim. That burden was to be discharged by him demonstrating, HB ELC E017 OF 2025 (OS)-JDGT 28

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on a balance of probabilities, that his possession was adverse; open, peaceful, without consent of the 1st and 2nd appellants and for an uninterrupted period of 12 years, expressed in Latin as nec vi, nec clam, nec precario Or, as Lord Hoffmann put it in R v Oxfordshire County Council ex p. Sunningwell Parish Council [2000] 1AC 335 at 350, 'not by force, nor stealth, nor the licence of the owner'. 116. It is not in contention that Opap Uma (deceased) was the Plaintiff’s step father. It is also not in dispute that the deceased was an uncle to the Defendants and therefore the Plaintiff and the Defendant are close relatives. 117. It is clear from the evidence tendered that the Plaintiff grew up on the suit parcel and occupied half of 477 together with the 1st Defendant, a fact that was not disputed. 118. It was also not in dispute that in 2019 the Plaintiff without the Defendant’s knowledge filed succession proceedings which was later discovered by the Defendants. 119. The issue that therefore arises is whether the Plaintiff can claim adverse possession against the Defendants who is his close relative. 120. The Court of Appeal in Kihamba v Mbaisi [2015] KECA 853 (KLR) held as follows; “The suit filed by the respondent against the appellant was founded on adverse possession where the respondent claimed to have acquired adverse rights over the suit land having occupied the same for over twelve years. Could the doctrine HB ELC E017 OF 2025 (OS)-JDGT 29

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of adverse possession apply against the parties to the suit before the learned Judge who were related by being mother and step-son? We think not. We are persuaded by various dicta which we have quoted and relied upon in this judgement and must state that it would create havoc for families and the society of Kenya generally if the principle of adverse possession applied within families against close relatives.” 121. Guided by the above authority, it is my opinion that it would be chaotic for families if adverse possession would apply against close relatives. This is for the reasons below. 122. It is not in dispute that the Defendants agree by way of their pleading or Replying Affidavit, and the plaintiff also averred and testified, that he (Plaintiff) entered onto the parcel of land, No. 477, in 1991. The background of that entry is that in 1962 his mother, Margaret Achieng, was married to Opap Uma whom she divorced, as evidenced by the certified copies of the proceedings produced by DW1. That was in the year 1970, after which she left to an unknown place. She returned in 1991 with three children, one of whom was the Applicant. By that time her former husband had since died. 123. It was the Defendants’ evidence that when Margaret Achieng returned she was given a home and/ or a place to stay with her children, by Ongere Nyanjong’. DW1 and DW2 testified, and they pleaded too, through the Replying Affidavit that her acceptance into the family was out of HB ELC E017 OF 2025 (OS)-JDGT 30

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compassion, humanity, generosity and empathy, and it was to last only for her lifetime. This, in my view, is not proved. And even if it were to be so, that the entry onto the land was temporary and by permission, it could not have been endless or without certainty in expiration, and only to be revoked at the whims of the Defendants. This does not make sense to this court, and certainly is not practical socially. 124. Granted that the said Margaret Achieng and her children were not members of the larger family of the Defendants, what the Defendants clearly failed to plead in their Replying Affidavit, and also confirm by their testimony, was, if indeed, the accommodation or permission allegedly given to Margaret Achieng was temporary and last her lifetime, how then the applicant’s got entry into or occupation of the land since he was not permitted by them. If he started living on the suit parcels in 1991 without their permission, but perhaps by the invitation of his mother Margaret Achieng, then having lived on them openly and peacefully since that year, and there was no evidence led that his entry on the parcels he claims was also by permission then it was clearly adverse. And if it was adverse, yet open and quiet and notorious as it was evidenced by PW1, PW2 and DW1 and DW2, then from 1991 to 2004, he had acquired the parcels of land by way of adverse possession. Further, if his entry onto the parcels was by permission of Mr. Ongere Nyanjong and the 2nd Respondent, as deposed in paragraph 21 of the Defendants’ affidavit, then after his mother died in May 2012, then there is no evidence that defendants or any HB ELC E017 OF 2025 (OS)-JDGT 31

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other member of the family permitted the applicant to live on that land. It also means that if the applicant and his mother were not part of the family then he occupation of the parcels of land that he claimed and proved that he occupied must be subject to the application of the doctrine of adverse possession. It means, as held above, the Defendants’ ownership of those portions of land he occupied would have been extinguished as provided under Section 17 of the Limitation of Actions Act, or alternatively the Defendants would not recover them as provided under Sections 7 and 13 of the same Act, after the lapse of 12 years. 125. In the alternative to the finding above, if it the stay of the applicant, and his mother on the suit lands, was with the consent of Ongere Nyanjong and the 2 nd Respondent as deposed in paragraph 21 of the Defendant’s Affidavit, then the permission ceased on in May 2012 when plaintiff’s mother died and was buried. This is because the subsequent residence or occupation of the applicant on the suit parcels of land has not been shown thereafter to have commenced from May 2012 with the permission of the Defendants. That being so, then by 2025, twelve years elapsed and he would have acquired the parcels of land by way of adverse possession. 126. Moreover, parties are bound by their pleadings. They cannot be permitted by any means, including, discretion or ingenuity to trudge beyond their pleadings. Otherwise, their cases will keep evolving without bounds. If this is permitted, parties’ cases will evolve and mutate to mongrels at the HB ELC E017 OF 2025 (OS)-JDGT 32

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whims of parties who are would be intent on defeating the interests of justice. 127. This Court has on many an instance reiterated that pleadings are a critical component of parties’ cases and they bind them. For instance, in Mutwol v Mutwol & 4 others (Environment and Land Case 37 of 2020) [2026] KEELC 1876 (KLR) (17 March 2026) (Judgment), it held as follows : “215. To determine the issue, the law is that parties present their cases to courts or judicial for a through pleadings. They bind themselves to their pleadings. The starting point here is that pleadings are a critical nerve in the life of any claim. Parties must always pay attention to their pleadings because they are bound by them. They cannot trudge beyond their claims. The Supreme Court of Kenya in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR while discussing the essence of pleadings in an election petition found and held…” 128. Furthermore, the Supreme Court, in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR, while discussing the essence of pleadings in an election petition found and held as follows in respect to:- HB ELC E017 OF 2025 (OS)-JDGT 33

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“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings...’” 129. Also, in Odongo v Wadiya & 2 others (Environment and Land Appeal 029 of 2025) [2025] KEELC 7976 (KLR) (13 November 2025) (Judgment), this court held; “Parties bound by their pleadings. They are not permitted to depart in adduction of evidence HB ELC E017 OF 2025 (OS)-JDGT 34

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from the pleadings otherwise it would amount to trial or defence by ambush. One’s case must be stated and made plain to the other or adverse party so that they know what to expect both in pleadings and evidence so that they too prepare. To do otherwise would lead to an unfair trial which is not only unconstitutional but would open a den and present to the adverse party of a boundless marouding mongrel which would obviously devour them. That would be unfair and an uneven ground for play.” 130. The importance of the authorities hereinabove in this case is that the Applicant/Plaintiff pleaded that he was in occupation of parcel numbers CENTRAL KASIPUL/KAWERE KAMAGAK/613 measuring 0.46Ha and CENTRAL KASIPUL/KAWERE KAMAGAK/471 measuring 0.48Ha. The Defendants did not dispute that in their Replying Affidavits. They also admitted as much in cross examination by counsel for the Applicant. Thus, also bearing in mind that the averment was a deposition which was not replied to by any affidavit by the Respondents, it means it was not controverted and therefore remained unchallenged. In terms of the Court of Appeal case of Habo Agencies Ltd v Musingo (Civil Appeal 124 of 2004) [2015] KECA 597 HB ELC E017 OF 2025 (OS)-JDGT 35

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(KLR) (3 July 2015) (Ruling), the facts were not controverted hence stood firm and were true. Thus, the Defendants could not be heard to adduce evidence to the contrary. 131. The above finding means that if this Originating Summons was to succeed on the claim for adverse possession, then the applicant’s claim onto those two parcels of land would remain unchallenged, and with his evidence on record on his occupation thereof, he would be entitled to a judgment against the Defendants in respect the two, without more. This is because he would have proved the case on a balance of probabilities. 132. However, the above findings have to be compared with the fundamental legal point brought out by the instant pleadings and evidence. And, if I were to be wrong on my finding below, then the above findings on adverse possession would have held sway. But I am persuaded that the finding below is the correct one. 133. Turning to the crux of the matter, it is my considered view that that Defendants’ claims and evidence of temporary accommodation of the plaintiff’s mother and her three (3) children, including the plaintiff, on the suit parcels of land is not backed by any independent evidence. First, DW1 claimed in his testimony when land adjudication took place between 1971-1974, his father who had seven sons of whom the 1st Defendant was the 5th born, was told by his brother (the Defendant’s uncle) not to allocate him (Defendant) land, and that was how he ended up taking over the suit HB ELC E017 OF 2025 (OS)-JDGT 36

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parcel. Further, that Siprosa died knowing that he was the custodian of the suit parcel. 134. In my considered view, the testimony about why the 1 st Defendant was not allocated land is pure inadmissible hearsay. Nobody, that is to say his father or uncle (both deceased) or document ever supported this evidence. In my view, this was a conjecture by both Defendants to take over land that belonged to Opap Uma (deceased) who initially married Margaret Achieng who went away and returned to the home, and whom (Uma) died without children. 135. It is for that reason that I do not agree that a woman who was divorced and her children would be taken into the 2 nd Respondent’s larger family on a temporary basis, and only for a lifetime, and not being considered as a member of the family. The only person, in my humble view, who would have tendered evidence to inform the court of the nature of the stay or ‘accommodation’ of Margaret Achieng upon her return with the children was the who agreed to take her into the family or larger family to live with them. That was Ongere Nyanjong. But the said Nynjong and the other family members having not removed Margaret and her children from the suit lands during his lifetime, it means they were taken as part of family and were entitled to reside on the parcels of land given to them to build on, cultivate and farm and use in the same manner as heirs of the family. 136. Moreover, it has been deponed the that applicant upon joining the family was taken through school from standard four (4) in a school known as Aolo Primary School. Therefore, HB ELC E017 OF 2025 (OS)-JDGT 37

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in my view, the Ongere family accepted Margaret and her children as part of the family and provided parental care and responsibility over them as their own. That was why they were given land and places to build on and settle, and Ongere Nyanjong took in Margaret Achieng and her children as a member of the family who had returned to the family so to say as, for those who believe in the Holy Bible, the prodigal son who had returned home (Refer to the Holy Bible in Luke 15: 11 to 32). 137. It is not in dispute that the Plaintiff applied for succession proceedings at one time, in respect of the Estate of the deceased ‘parent’. If he was not a relative, one wonders the basis upon which he applied for succession: it was because he considered himself an heir to the deceased’s property. Evidence herein shows that his mother was accepted into the family as such. She was even buried on the suit land, without any issue. In any event, the evidence shows that after the Applicant’s mother left the first marriage and went away from some time she returned to the home only to find her former husband having died. She was, however, taken back by the brother as a member of the family and settled. I do not agree with the Defendants that the Plaintiff’s mother was a stranger who was only given temporary occupation or accommodation in the family. 138. In my humble view, when and as long as the parents, including uncles of the Defendants, were alive they recognized plaintiff’s mother and her children, including the Plaintiff as part of the family. There is no iota of evidence, HB ELC E017 OF 2025 (OS)-JDGT 38

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apart from the oral unsupported hearsay testimony of the Defendants, to show that the residence or occupation of the Plaintiff and his mother was temporary. This, in my view, is only an ‘invention’ of the Defendants in order to try and convince the court that the Plaintiff’s occupation of the suit land was temporary and consensual. I reject that claim. 139. It is my finding that the Plaintiff, being part of the wider Defendants’ family, occupied and used the parcels of land he is using, as such. The Defendants only, as they admitted in evidence, are custodians of the family land. That must be for and on behalf of themselves and the rest of the family members, including the Plaintiff. Thus, there is a customary trust created in this arrangement, in terms of Section 28(b) of the Land Registration Act. The Defendants cannot assume and go around this legal principle, and proceed to evict the Plaintiff. They can also not proceed to occupy by force or other coercive means the parts of the land which the plaintiff is in occupation save for when they would have agreed on the mode and specific areas and sizes of distribution in accordance with succession proceedings. They hold the suit lands in trust for the family members who have not been given their shares as such. They need to sit as family, including the Plaintiff/ Applicant and carry out succession of the properties of their deceased parents amicably. Consequently, this court finds that since the Plaintiff has a customary trust claim over the suit parcels of land, and as guided by Kihamba v Mbaisi (supra) the Plaintiffs’ claim for adverse possession (of family land) is HB ELC E017 OF 2025 (OS)-JDGT 39

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incompetent, unmerited, and misconceived. The Originating Summons is therefore struck out. 140. This being a family, matter, each party shall bear own costs of the suit. 141. It is so ordered. Judgment dated, signed and delivered virtually via the Teams Platform this 6th day of October 2026. Hon. Dr. iur Nyagaka Judge In the presence of: Mr. Omuthe Advocate for the Applicant, online Applicant in open court 1st Defendant in open court 2nd Defendant in open court HB ELC E017 OF 2025 (OS)-JDGT 40

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