Kang’iro & 48 others v Busienei & another

Kang’iro & 48 others v Busienei & another (Environment and Land Case E017 of 2021) [2026] KEELC 5400 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 5400 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case E017 of 2021 EM Washe, J July 9, 2026 IN THE MATTER OF: THE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA AND IN THE MATTER OF: LAND REGISTRATION 6459/3 (ORIG 6459//2/2) Between John Nalaban Kang’iro 1st Plaintiff Julius Kuto Kosilei 2nd Plaintiff Emmanuel Kang’iro 3rd Plaintiff Joseph E. Ekiru 4th Plaintiff James Ewoi Eyanai 5th Plaintiff Raphael Eyanai Ekutan 6th Plaintiff William L. Lokitet 7th Plaintiff Richard T. Kimitei 8th Plaintiff Ikal Lobocho 9th Plaintiff Lazaro E. Ekiru & 39 others & 39 others & 39 others 10th Plaintiff and Richard Kipruto Arap Busienei Defendant and Limo Company Limited Interested Party Judgment 1.The Plaintiffs herein did file an Originating Summons dated 24.06.2021 (hereinafter referred to as “the present suit”) against the Defendant and the Interested Party seeking a determination of the following issues; -I.Whether or not the Plaintiffs/Applicants have obtained title by way of adverse possession to 40 Hectares portion of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares having been on uninterrupted possession of the same since 29th September, 1982 initially having entered the land when it was registered as Land Registration Number 6459/3 (ORIG 6459/2/2).II.Whether or not the Plaintiffs/Applicants have been in exclusive, open, peaceful, continuous and uninterrupted occupation, possession and use of that parcel of land registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 40 Hectares for a period of over twelve (12) years (in fact over 38 years) as of right and has acquired title and ownership of the said portion approximately measuring 40 Hectares of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares by virtue of adverse possession.III.The Respondent’s title over 40 Hectares of Land Registration Number 6459/3 (ORIG 6459/2/2) has been extinguished by dint of adverse possession and or the Limitation of Actions Act.IV.Whether or not a declaration and a finding be made that upon expiry of twelve (12) years from the year 1957 the title of the Respondent to a portion of the land approximately measuring 40 Hectares out of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately 363.7 Hectares became extinguished at law and that the Respondent/Defendant only holds the title in trust for the Plaintiffs/Applicants and be transferred by the Respondent to the Applicants.V.The Respondent be ordered to transfer 40 Hectares out of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares to the Applicants failing which the Deputy Registrar of the Honourable Court do execute the documents necessary to effect a transfer into the name of applicants and Chief Lands Registrar and Uasin Gishu County Lands Registrar do issue a title deeds (sic) for 40 Hectares in the names of the 48 Applicants herein.VI.That upon grant of the foregoing, a permanent injunction be and is hereby issued restraining the Respondent by himself, his servants, agents and/or employees from interfering with the Applicants lawful enjoyment and quiet possession of the 40 Hectares out of Land Registration Number 6459/3 (ORIG 6459/2/2) approximately measuring 363.7 Hectares.VII.Who should bear the costs of this originating summons? 2.The facts in support of the issues outlined hereinabove for determination are contained in the body of the present suit as well as the Supporting Affidavit sworn thereof on the 24.06.2021 and are summarised by this Court as follows; -i.The Defendant herein is the beneficial and registered owner of the property known as LR.No.6459/3 (Originally LR.No.6459/2/2) measuring 363.7 Hectares (hereinafter referred to as “the suit property”).ii.On the other hand, the Plaintiffs herein did initially enter and occupy a portion of 40 Acres within the suit property with the consent of the original owner before the suit property was transferred to the Defendant herein.iii.The Plaintiffs did plead that the original owner did dispose of the suit property to the Defendant with a clear condition that a portion of 40 acres with the suit property would be for the use and benefit of the Plaintiff herein.iv.Based on this understanding, the Plaintiffs herein who in total are 48 families did erect and/or develop various structures including their homes and undertake other economic activities including farming.v.The Plaintiffs state that their occupation and use of the portion measuring 40 acres of the suit property since 1957 was adverse to the ownership of the Defendant and by extension the Interested Party herein.vi.The Plaintiffs are of the view that since the Defendant did excise and transfer the portion measuring 40 acres within the suit property as agreed with the original owner upon purchase and transfer of the same, then their continued occupation which was open, uninterrupted and with the knowledge of the Defendant for over a period of 12 years extinguished the proprietary rights acquired by the Defendant and the Interested Party by extension.vii.However, on or about the year 2020, the Defendant alongside other persons unknown to the Plaintiffs did invade the portion measuring 40 acres and began sub-dividing the same with a view of disposing it off and forcefully evicting the Plaintiffs herein.viii.The Defendants further did demolish the Plaintiffs’ structures on the portion measuring 40 acres on the suit property thereby interfering their normal livelihood and occupation of the same.ix.The Plaintiffs therefore sought this Court to declare the Defendant’s ownership over the portion measuring 40 acres to be extinguished and that the Plaintiffs are the lawful and beneficial owners of the same. 3.The present suit was duly served on the Defendant and the Interested Party herein. 4.The Defendant did oppose the present suit by way of a Defence dated 13.09.2021. 5.The facts pleaded in the Defence dated 13.09.2021 in opposition of the present suit were as follows; -i.The Defendant did admit to being the registered owner of the suit property herein.ii.The Defendant did plead that the suit property did not exist as the same had been sub-divided and new titles issued for the sub-divisions thereof.iii.The Defendant did deny any knowledge and/or existence of any understanding and/or condition of purchase to the effect that the Plaintiffs herein were entitled to a portion of 40 acres with the suit property.iv.According to the Defendant, the portion measuring 40 acres which is purported to be occupied by the Plaintiffs herein is within the sub-divisions namely LR.No.6459/9, 6459/10 and 6459/11 and are registered in the names of other persons and/or entities.v.The Defendant did confirm that the new registered owners of the sub-divisions namely LR.No.6459/9, 6459/10 and 6459/11 have since taken possession of their properties and the Defendant is neither the registered owner and/or in possession of the same.vi.In essence, the Defendant did plead that if there was any occupation and use of the portions namely LR.No. 6459/9, 6459/10 and 6459/11, then the same was interrupted by the transfer of the same and the entry of the new owners into the said sub-divisions.vii.The Defendant did further deny knowledge of any permission and/or consent issued to the Plaintiffs herein to occupy any portion of the suit property.viii.In the alternative, if such a consent and/or permission was issued to the Plaintiffs, then their occupation of the portion measuring 40 acres cannot be adverse the ownership rights of the Defendant to warrant a claim of adverse possession.ix.In conclusion, the Defendant did seek this Court to dismiss the present suit with costs. 6.The Interested Party also did file a Replying Affidavit dated 09.09.2021 in opposition to the present suit. 7.In the Replying Affidavit sworn on the 09.09.2021, the Interested Party did plead the following facts in opposition of the present suit; -i.The Interested Party did admit to be the current registered owner of the suit property.ii.The Interested Party did plead that the suit property was acquired through a public auction conducted on 20.12.2019 and took possession on 28.03.2020.iii.The Interested Party did state that the public auction was preceded by two notices on 04.12.2019 and 09.12.2019 in the Daily Nation Newspaper advertising the suit property for sale by public auction.iv.The Interested Party did participate in the public auction slated for 20.12.2019, where its bid of KShs.62,500,000/- was accepted as the highest bid and issued with the relevant Memorandum of Sale.v.Upon completion of the purchase price, the Interested Party was issued with a Certificate of Sale dated 31.12.2019 and the ownership documents were registered in its name on the 12.03.2020 resulting to a Certificate of Title being issued thereof.vi.The Interested Party did confirm that it took possession of the entire suit property on the 28.03.2020 by fencing the same and has been utilising the same to the exclusion of the Plaintiffs herein.vii.The Interested Party did specifically plead that the Plaintiffs herein were not in occupation and/or use of the suit property at the time it was registered as the owner and/or took possession of the same on the 28.03.2020.viii.In conclusion, the Interested Party did plead and state that the Plaintiffs herein did not have any proprietary interest whatsoever on the suit property as they were not in occupation and/or use of the same. 8.Upon filing and service of both the Defence by the Defendant and the Replying Affidavit by the Interested Party, the Plaintiffs did not file any response to either of them and pleadings did close thereafter. Plaintiffs Testimonies & Documentary Evidence 9.The first witness to be called by the Plaintiffs to the stand was the 3rd Plaintiff who was marked as PW 1. 10.PW 1 did introduce himself as a business man currently residing at Mosop Sub-location within Uasin Gishu County. 11.According to the testimony of PW 1, he was an employee of the original white settler who was the registered as the owner of the suit property. 12.PW 1 did disclose to the Court that during their employment with the original white settler, the Plaintiffs were allocated and gifted a portion of 40 acres on the suit property. 13.Thereafter, the suit property was disposed of to the Defendant and the Plaintiffs did continue occupying and using the said portion of 40 acres within the suit property. 14.PW 1 did inform the Court that during their occupation of the portion measuring 40 acres on the suit property owned by the Defendant, they had erected various structures, undertaken farming activities and even buried their relatives without the objection of the Defendant herein. 15.PW 1 did produce a Copy of a Burial Permit of one ELIZABETH KANGIRO who was his sister as PLAINTIFF’S EXHIBIT 1. 16.However, later on, the Plaintiff’s structures and/or developments were demolished and he was forcefully evicted from the portion of land they were in occupation. 17.PW1 did produce a copy of a Certificate of Official Search relating to the suit property which confirms the Defendant to be the lawful registered owner of the same as Plaintiff Exhibit 2. 18.PW 1 did further seek to rely on his written statement dated 02.06.2024, which statement was adopted as his evidence-in-chief. 19.PW 1 therefore sought for the Court to declare the Plaintiffs herein as the lawful owners of the portion measuring 40 acres within the suit property herein. 20.On cross-examination by the Defendant, PW 1 did admit being an employee of the Defendant and was paid a salary as such. 21.PW 1 did further state that even his parents had been employed by the Defendant but did deny that the houses they resided had been built by the Defendant. 22.PW 1 in fact did admit that all the 48 employees who are not Plaintiffs in the present suit were employees of the Defendant earning a salary as such. 23.PW1 explained that the 40 Hectares claimed were for all the Plaintiffs, although he could not tell if the said portion had been excised from the original parcel. 24.PW1 testified that the 40 Hectares is not identifiable as it was not fenced and conceded that there was someone currently staying on the portion they are claiming. 25.PW1 testified that he was not involved when the land was charged to the bank, but he was aware it had been advertised for sale. 26.PW1 admitted that burying someone on a piece of land does not entitle him to the land, but he asserted that he was only claiming the 40 Hectares where he grew up, and told the court that he was currently living in rented premises. 27.PW1 testified that he was not arrested on instigation of the Defendant and he did not know if he was involved in the destruction of his property. 28.PW1 also conceded that the land currently belongs to the Interested Party, which is connected to the Defendant. 29.PW1 told the Court that he was unaware of the proceedings known as ELC Case No. 132/2021, although he had known there was an auction relating to the suit property. 30.On cross-examination by the Interested Party, PW 1 did admit that he had been born on the suit property but could not state the exact date when his parents had begun residing on the suit property. 31.PW1 clarified that all the 48 Plaintiffs worked for the Defendant, and before that their parents had worked for the white settlers on the suit property. 32.PW1 testified that they were arrested on 24.06.2021 and were released on 28.06.2021, however his family was at home on 25.06.2021. 33.He confirmed that some of the Plaintiffs still work for the Defendant. 34.On re-examination, PW1 testified that he was aware the land was subdivided in 1998, and that the parcel that was subdivided was outside the 40 Acres they occupied. 35.After this re-examination, PW1 was discharged from the witness box. 36.The Plaintiffs’ second witness was one Newei Kangiro who was marked as PW 2. 37.PW 2 did introduce herself as resident of Ainabkoi but had been residing on the suit property before. 38.PW 2 did inform the Court that she had prepared a witness statement dated 24.06.2022, which she did adopt as her evidence-in-chief. 39.PW2 explained that she married her husband John Kangiro in 1975, who at that time was already living on suit property, and did produce a number of photographs as Plaintiffs Exhibit 3 (A) –(D). 40.PW 2 did testify that her occupation on the suit property from the year 1975 was disputed on in the year 2021 when they were evicted and they lost their house and all their animals. 41.PW 2 did disclose that her husband had been employed as a watchman by the Defendant. 42.On cross-examination by the Defendant, PW2 testified that she used to do small businesses and was currently un-employed. 43.PW2 reiterated that her husband used to work for the Defendants as a watchman. 44.PW2 added that after they were evicted from the suit property, it was occupied by agents of the Interested Party. 45.PW 2 did reiterate that when she re-entered the suit property, she was in occupation of the same with her five children and one had actually passed on and was buried on the suit property. 46.On further cross-examination, PW2 did reiterate that her husband had been in occupation within the suit property since 1967. 47.According to PW 2, her husband had been working for the registered owner of the suit property for a long period of time and therefore were allocated 40 acres during the alienation of the suit property to the new owner. 48.PW 2 nevertheless did state that their structures, including their homes, were demolished after the new owner took possession, although she did not have any photographs of the structures demolished during the eviction process. 49.PW 2 did conclude her cross-examination by disclosing that although she did make a report with the Police, there was no assistance accorded to her. 50.At the end of this cross-examination, there was no re-examination and PW 2 was discharged from the witness box. 51.The Plaintiffs’ third witness was John Kangiro Halabani who was marked as PW3. 52.PW3 did introduce himself as a resident of Uasin Gishu and was currently unemployed. 53.PW 3 did inform the Court that he had been a resident of the suit property where he was employed as a herdsman. 54.According to PW 3, the original owner had roughly 40 employees who were working on the suit property and had allocated 40 acres for their settlement and benefit. 55.PW 3 did aver that he had built a temporary structure of the suit property which was his home during his employment, the same was subsequently demolished after the ownership did change. 56.PW 3 did admit that he no longer resides on the suit property but did produce a letter dated 04.10.2012 containing the list of the legitimate occupants of the suit property which was marked as Plaintiffs Exhibit 4 and 5 respectively. 57.PW 3 did explain that at the time of his employment and occupation of the suit property, the common name was Eldora Farm which changed to Konyit Farm upon acquisition by the new owner. 58.PW 3 did produce a National Social Security Fund Payment Statement dated 24.02.1984 confirming his employment with the previous owner as Plaintiff Exhibit 6. 59.At the end of his examination in chief, PW 3 did seek the Honourable Court to issue an order to be reinstated back to the suit property which is where he considers home. 60.On cross-examination, PW 3 did reiterate that the legitimate people who were allocated land on the suit property were 40 employees. 61.PW3 did disclose that a number of employees who include Marko Lokitet, Hillow Hussein And James OchialI had been buried in their rural homes and not on the suit property. 62.PW 3 did aver that the suit property was sold off to the Defendant in the year 1982 and is currently occupied by the Interested Party. 63.On further cross-examination, PW 3 did reiterate that he had been employed on the suit property by the original owner although the ownership had since changed and the same is now with the Interested Party. 64.PW3 did inform the Court that while some of the original employees of the original owner have died, their beneficiaries thereof had been included in the List of Beneficiaries produced as Plaintiff’s Exhibits 4 and 5. 65.PW 3 did clarify that as at 25.06.2021 when he was evicted from the suit property, some of the original employees of the original owner had since vacated and he was the only one remaining on the suit property. 66.At the end of this cross-examination, there was no re-examination on PW3 and he was subsequently discharged from the witness box. 67.The Plaintiffs fourth witness was Benatine Jepchirchir Rutoo who was marked as PW4. 68.PW4 did inform the Court that she had prepared a Witness Statement dated 24.06.2022, which she did adopt as her testimony-in-chief. 69.PW4 did disclose to the Court that the 1st Plaintiff was her father-in-law. 70.PW4 further did confirm that the 1st Plaintiff was indeed an employee of the first owner of the suit property and subsequently the Defendant herein. 71.According to PW 4, the 1st Plaintiff had been in occupation of the suit property for over twenty (20) years but the same was interfered with by the eviction that took place on the 24.06.2021. 72.PW4 did further disclose that during the 1st Plaintiff’s occupation on the suit property, one of the sister’s in law did pass on and had been buried on the suit property as demonstrated in Plaintiffs Exhibit 1. 73.PW4 did seek to rely on the photographs produced as Plaintiffs Exhibit 3 (a-d) as evidence of their houses demolished by the employees of the Interested Party. 74.On cross-examination, PW 4 did disclose that she was married to the 1st Plaintiff’s son Simeon Tanui in the year 2006 and blessed with 5 children. 75.PW 4 did claim that they were in occupation of 40 acres although she did not have any evidence of such an occupation. 76.On being referred to the Plaintiffs Exhibit 1, PW 4 could not specify the location where the sister-in-law was buried. 77.On further cross-examination, PW4 did inform the Court that the eviction was undertaken by civilians and her husband was one of the persons arrested. 78.On being referred to Plaintiffs Exhibits 3 (a-d), PW 4 did confirm that the photographs were taken during the eviction process. 79.However, PW 4 did not have an inventory of the assets and/or items which were either lost and/or destroyed during the eviction process undertaken by the Interested Party. 80.In concluding the cross-examination, PW 4 did confirm that their occupation on the suit property was by virtue of the 1st Plaintiff who was the father-in-law and had been employed by the original owner and the Defendant. 81.On re-examination, PW4 reiterated that they did not salvage anything from their houses including receipts. 82.At the end of this re-examination, PW 4 was discharged from the suit property. 83.The Plaintiffs fifth witness was one Julia Cheptoo who was marked as PW 5. 84.PW 5 did introduce herself as a resident of Uasin Gishu and did adopt her witness statement dated 24.06.2022 as her evidence in chief. 85.In support of her evidence in chief, PW 5 did also rely on the exhibits produced earlier by PW 1. 86.PW 5 did disclose that her deceased father was one of the employees by the original owner of the suit property and thereafter the Defendant. 87.PW 5 did confirm that indeed Plaintiff Exhibit 6 confirms that her father was an employee on the suit property. 88.On referring to the Plaintiffs Exhibit 3 (a-d), PW5 insisted that the pictures contained herein demonstrate and confirm the existence of graveyards and demolition of their homesteads. 89.PW5 states that they had lived on the land for over 60 years, but the Interested Party wanted to evict them claiming ownership of the land. 90.On cross-examination, PW 5 did disclose that she was born and raised in Plateau where her parents were employees of the original owner and subsequently thereafter the Defendant herein. 91.PW 5 did confirm that the suit property is registered in the name of the Defendant but was not familiar with any charge granted to any other entity. 92.Similarly, PW 5 did testify that she was not aware that the suit property had been transferred to a third party who was the Interested Party. 93.PW 5 did clarify that although the photographs in Plaintiffs Exhibit 3 (a-d) were not dated, the same were taken on the 24.06.2021. 94.PW 5 was of the view that the portion being claimed by the Plaintiffs was 40 acres which should be hived off from the suit property and be issued with a distinct ownership document. 95.PW 5 did inform the Court that she was not aware of any pending or decided case relating to the suit property. 96.As regards the Kiplombe Cementery, PW 5 admit that it was a Government facility which people were rested and no one can claim ownership over the same. 97.On re-examination, PW 5 did reiterate that the Plaintiffs herein were in occupation of 40 acres within the suit property as demonstrated by the Plaintiffs Exhibit 3 (a-d). 98.PW 5 did confirm her occupation on the suit property began upon her marriage to the 1st Plaintiff’s son who had been in occupation for over 60 years. 99.In conclusion, PW 5 did assert that she had been in peaceful occupation and use of a portion of the suit property. 100.At the end of this re-examination, PW 5 was discharged from the witness stand. 101.Upon discharge if PW 5, the Plaintiffs case was duly closed. Interested Party’s Testimonies & Documentary Evidence 102.The first witness by the Interested Party was one JOSEPH KIPKORIR CHERUIYOT who was marked as IPW 1. 103.IPW 1 did introduce himself as the manager of the Interested Party. 104.IPW 1 did inform the Court that he had prepared a Witness Statement dated 14.02.2025 of which he adopted as his evidence in chief. 105.IPW 1 further did seek to rely on the Witness Statement of one Valeria Jeptoo Limo sworn on 09.09.2021. 106.IPW 1 did produce the following documents in support of his evidence-in-chief; -IPW 1- A Copy of a Newspaper for 04.12.2019 relating to a public auction of the suit property.IPW 2- Copy of a Newspaper advertisement dated 09.12.2019 relating to the suit property.IPW 3(a-e)- A bundle of copies of cheques Nos. 001486 dated 17.12.2019, 001487 dated 17.12.2019, 001484 dated 17.12.2019, 001483 dated 17.12.2019 and a final one also dated 17.12.2019 all totaling to KShs.5,000,000/-IPW 4- A Copy of a Memo of Sale dated 20.12.2019 between the Interested Party and Leakey Auctioneers over the suit property.IPW 5 - A Copy of a Certificate of Sale of the suit property issued in favour of the Interested Party.IPW 6-A Copy of a Certificate of Title of the suit property issued in the name of Richard Kipruto Arap Busienei issued on 01.11.1960.IPW 7-A copy of the Encumbrance Section relating to the Register of the suit property and in particular the 1st Charge registered on 30.04.2013 by CFC Stanbic, 2nd Charge registered on 03.03.2015 by CFC Stanbic and the registration of the transfer the Interested Party dated 12.03.2020.IPW 8 - Copies of photographs of the suit property and the developments done by the Interested Party 107.According to IPW 1, the Interested Party’s property is LR.No.6459/4 and not LR.No. 6459/3 which is the suit property in this suit. 108.IPW 1 therefore did clarify that it has no interest on the suit property known as LR.No.6459/3 claimed by the Plaintiffs herein. 109.IPW 1 did outline the process of acquisition of the property known as LR.No.6459/4. 110.According to IPW 1, the property known as LR.No.6457/4 was advertisement for auction on the 04.12.2019 and auctioned on 24.12.2019. 111.Thereafter, the Interested Party did take possession of the property known as LR.No.6459/4 and has been in occupation and use of the same. 112.IPW 1 did aver that the Plaintiffs were strangers to the Interested Party and only met them in this proceeding hence had no legal interested on the property known as LR.no.6459/4. 113.As such, IPW1 did ask the Court to dismiss the present suit with cost. 114.On cross-examination, IPW 1 did inform the Court that the property known as LR.No.6459/4 was advertised for sale through a public auction in the newspapers. 115.According to IPW 1, the registered owner of the property known as LR.No.6459/4 was the Defendant who had charged it to a financial facility. 116.However, the Defendant was unable to service the financial facility and the property known as LR.No.6459/4 was to be disposed of either through a public or private auction. 117.Upon acquisition of the property known as LR.No.6459/4 by the Interested Party, the Defendant did hand over possession of the same to the Interested Party. 118.IPW 1 did confirm that at the time of taking possession of the property known as LR.No.6459/4, there were no squatters on the same. 119.On cross-examination, IPW 1 testified that they took possession of the land on 28.03.2020. 120.IPW 1 did confirm that upon inspection of the property known as LR.No.6459/4, there were developments on the property but there was no person in occupation of the same hence no need for an eviction exercise. 121.On re-examination, IPW 1 did acknowledge being aware of a property known as LR.No.6459/3 but did clarify it has no interest on the same. 122.In concluding his evidence, IPW 1 did reiterate that there are no developments or persons occupying the property known as LR.No.6459/4. 123.At the end this re-examination, IPW 1 was discharged and the Interested Party’s case was subsequently closed. The Defendant’s Testimonies & Documentary Evidence 124.The Defendant’s first witness was Richard Kipruto Arap Busienei who was marked as DW 1. 125.DW1 did inform the Court that he had prepared a witness statement dated 24.02.2022, which he did adopt as his evidence-in-chief. 126.According to the testimony of DW 1, he was the registered owner of the suit property, which measured approximately 363.7 Hectares. 127.At the point of purchasing the suit property, DW 1 was not informed of any alienation of the portion measuring 40 acres to the Plaintiff herein by the original owner through any lawful documentation. 128.DW 1 did confirm that the suit property known as LR.No.6459/3 no longer exists legally for the reason that the same was sub-divided into 8 portions namely LR.No.6459/4-11. 129.Thereafter, the property known as LR.No.6459/4 was offered as security to a financial institution for a loan procured by the Defendant. 130.Unfortunately, the DW1 was unable to redeem the property known as LR.No.6459/4 and was subsequently auctioned to the Interested Party by the financial institution. 131.DW 1 did explain that the 1st Plaintiff was in occupation of the suit property with the permission of the Defendant and therefore was not a squatter. 132.In concluding his testimony, DW 1 did produce the following ownership documents of the properties, which were sub-divisions of the original LR.No.6459/3, which are still in the name of the Defendant; -DW1 Exhibit 1 – A Copy of a title No. 6459/11 issued on 24.09.1998 in the name of the Defendant.DW1 Exhibit 2 – A Copy of a title No. 6459/10 issued on 24.09.1998 in the name of the Defendant. 133.On cross-examination, DW 1 did reiterate that the property known as LR.No.6459/4 was charged to a financial institution which the Defendant was unable to redeem and was sold by public auction. 134.Consequently thereafter, DW 1 did confirm that the property known as LR.No.6459/4 was sold to the Interested Party by the financial institution. 135.In essence, DW1 did affirm that the property known as LR.No.6459/4 was occupied and is in use by the Interested Party. 136.DW 1 did state that the original property known as LR.No.6459/3 was purchased from one Walter Kilele by the Defendant and thereafter sub-divided into eight (8) portions. 137.DW 1 denied the allegation that the sub-division of the property known as LR.No.6459/3 was to defeat the ownership rights of the Plaintiffs herein. 138.As regards the relationship with the 1st Plaintiff, DW 1 did confirm that he was an employee of the Defendant until his retirement and his occupation of any portion of L.R No.6459/3 was with the permission the owner. 139.Consequently, the Defendant did not need to seek the Plaintiffs permission as they were only employees who had no proprietary interest on the property known LR.No.6459/3 which was being sub-divided. 140.DW 1 asserted that he has never given any person authority to live on the land except his employees. 141.On re-examination, DW 1 did admit being familiar with the 1st and 3rd Plaintiffs herein who were father and son and had been his employees. 142.Nevertheless, the other Plaintiffs were strangers to the Defendant. 143.In conclusion, DW 1 did clarify that the property known as LR.No.6459/3 did not have any squatters but a number of employees that were in occupation with the consent of the Defendant. 144.At the end of this re-examination, DW 1 was discharged from the witness box and the Defendant did close their case. 145.On close of the Defendant’s case, the Court directed that each party should file their final written submissions. 146.The Plaintiffs did file their submissions dated 24.02.2026, the Defendant did file his submissions dated 06.02.2026 while the Interested Party did file its submissions dated 23.04.2026. 147.The Court has gone through the present pleadings filed by the Parties herein, the witness testimonies and evidence adduced, as well as the submissions herein and identifies the following issues for determination.Issue No. 1- What Is The Legal Status Of Lr.no.6459/3 Which Is The Suit Property Herein?Issue No.2- Are The Plaintiffs Herein Entitled To A Portion Measuring 40 Acres Within The Suit Property Through Adverse Possession Against The Defendant?Issue No.4- Is The Present Os By The Plaintiff Merited Or Not?Issue No.5- Who Bears The Costs Of The Present Os? 148.The Court having duly identified the above-mentioned issues for determination, the same will now be discussed below. Issue No. 1- What Is The Legal Status Of Lr.no.6459/3 Which Is The Suit Property Herein? 149.The first issue for determination is what is the legal status of the suit property described as 6459/3 (formerly known as LR.No.6459/2/2) by the Plaintiffs. 150.The Plaintiffs did testify and produce an Official Search of the suit property confirming that the Defendant is the lawful registered owner of the same. 151.The Defendant through DW 1 did admit to have been the registered owner of the suit property which had measured approximately 363.7 Hectares from 29.09.1982. 152.According to the Defendant, the suit property was however sub-divided in the year 1998 into eight different portions by creating the properties known as LR.no.6459/4 to LR.No.6459/11. 153.In essence, the Defendant was of the position that the suit property does not exist and the Court cannot grant any orders in favour of the Plaintiffs in terms of adverse possession over the same. 154.The Interested Party on the other hand did testify and present documentary evidence that it is the registered owner of one of the sub-divisions namely of LR.No.6459/4 and not the suit property claimed by the Plaintiffs. 155.Consequently, the Interested Party was of the view that it does not have any interest in the suit property claimed by the Plaintiffs as the suit property is different from their property known as LR.no.6459/3. 156.Based on the testimonies of the Plaintiffs and the admission by the Defendant through Interested Party’s Exhibit 6, it is clear that the suit property herein was acquired by the Defendant way back in the year 1982. 157.However, in the year 1998, the Defendant did sub-divide the suit property into eight (8) portions identified as LR.No.6459/4 to LR.No.6459/11. 158.Clearly therefore, the Register of the suit property measuring 363.7 Hectares was closed in the year 1998 and new Registers opened for the eight (8) portions known as LR.No.6459/4 to LR.No.6459/11. 159.One of the new Registers that was opened is the one known as LR.No.6459/4 which recorded various entries including a charge by the Defendant to a financial institution and thereafter confirms the transfer of the same to the Interested Party. 160.In conclusion therefore, this Court is of the finding and holding that the property known as LR.No.6459/3 did get sub-divided in the year 1998 and therefore stopped to legally exist thereafter. 161.In essence, at the time of filing the present OS, the suit property upon which the Plaintiffs make a claim of adverse possession no longer existed in the manner it has been described but in new portions namely LR.No.6459/4 to LR.NO.6459/11. Issue No.2- Are The Plaintiffs Herein Entitled to a Portion Measuring 40 Acres within the Suit Property Through Adverse Possession? 162.The second issue is whether or not the Plaintiffs are entitled to a claim of adverse possession over a portion of 40 acres within the suit property. 163.According to the testimonies and evidence of the Plaintiffs, it was clear that their entry into the suit property was by virtue of being employees of an entity known as Eldora Farm. 164.The Plaintiffs did inform the Court that some Plaintiffs had enjoyed possession and occupation of the suit property since the year 1960 when they were first employed therein. 165.Thereafter, the suit property was duly disposed of to a new owner who was the Defendant who changed the name from Eldora Farm To Konyit Farm. 166.During this alienation, the Plaintiffs did testify that a portion of 40 acres was set-aside by the original owner for transfer to them. 167.In other words, the Plaintiffs’ legitimate expectation was that the portion measuring 40 acres was to be hived from the suit property by the Defendant and allocated to the persons on the Legitimate Beneficiaries List contained in Plaintiff Exhibit 4 & 5. 168.On the other hand, the Defendant did dispute the testimony of the Plaintiffs herein. 169.Based on the above testimonies by all the parties, it is clear that the Defendant herein did acquire the suit property from the first registered owner who was operating the same as Eldora Farm. 170.The Plaintiff did admit in their testimonies that either their parents and/or themselves in person were employees of the Defendant after he had acquired the same in the year 1982. 171.Further to the foregoing, the Plaintiffs strongly did testify and submit that they were entitled to a claim of adverse possession based on the commitment of the first registered owner to alienate 40 acres within the suit property for their settlement and registration based on the List of Genuine Occupiers produced by the Plaintiffs. 172.The Court having duly appreciated these facts alleged by all the parties, the next question would be to evaluate the evidence produced and make a determination as to whether the Plaintiffs are entitled to a claim of adverse possession over the suit property or not. 173.It is settled law that a claim of adverse possession can be instituted after the lapse of 12 years from when a party makes a forceful and/or an unauthorised entry into another person or entity’s property and openly occupies the same with the knowledge of the owner who fails to take any action to dislodge the person that is unlawfully and/or illegally in occupation of the same. 174.The Court of Appeal in the case of Mtana Lewa -versus- Kahibdi Ngala Mwagandi (2015) eKLR did state as follows as regards a claim of adverse possession; -“6.… Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years.The process springs into action essentially by default or inaction of the owner.The essential prerequisites being that the possession of the adverse 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.This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act…” 175.For avoidance of doubt, Section 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya provides as follows; -7.Actions to recover landAn 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. 176.A perusal of both the authority cited hereinabove and the statutory provisions of Section 7 of the Limitation of Actions Act, Cap 22, there are four cardinal ingredients that have been identified and require to be evaluated in a claim of adverse possession. 177.The ingredients that must be evaluated are namely, (a) what is the nature of the entry by the Applicant, (b) was the occupation open and notorious to the registered owner, (c) was there any interruption of the occupation by the Applicant by the registered owner prior to filing the claim of adverse possession and lastly (d) did the Plaintiffs enjoy 12 years of peaceful occupation prior to filing the claim for adverse possession. 178.For an Applicant of adverse possession to succeed, all the four cardinal ingredients outlined hereinabove must be proved through both oral evidence and documentary evidence. 179.This Court therefore in resolving the issue before it will now apply the evidence adduced by the parties herein against the four cardinal ingredients and makes a determination whether or not the Plaintiffs herein have satisfactorily proved their claim of adverse possession against the Defendant herein. Ingredient No.1- What was the Nature Of Entry by the Applicant? 180.The first ingredient that an Applicant of adverse possession must prove is the nature of his entry into the property upon which the claim is geared to. 181.In the present suit, the Applicants did claim that their claim of adverse possession was against the property known as LR.No.6459/3 (formerly LR.No.6459/2/2) measuring approximately 363.7 Hectares. 182.The Applicants did testify and produce documentary evidence that their entry into the suit property had begun way back in the year 1960 when some of their parents were hired by the original owner as employees of an entity known as Eldora Farm. 183.The Plaintiffs did produce various documents in the form of pictures and/or images demonstrating the construction of various structures built by them as well as burial sites of their relatives that had been buried on the suit property. 184.In essence, the Plaintiffs did testify that their occupation on the suit property had begun way back in 1960 through the construction of their homesteads. 185.The Defendant on the other hand did admit that indeed the Plaintiffs herein and/or their parents had been in occupation of some portions of the suit property. 186.The Defendant did state that in the year 1982 when he acquired the suit property, the same was an ongoing entity which he did take over all the employees from the previous registered owner. 187.The Defendant did emphasis that the occupation of the Plaintiffs herein on the suit property was based on the consent of the first registered owner and thereafter his own consent as the registered owner after its acquisition. 188.The Interested Party herein did testify that at the time it acquired the portion known as LR.No.6459/4, none of the Plaintiffs herein was on the ground and/or had any structures on the same. 189.In this ingredient, the Court is only required to confirm whether or not there was an entry into the property upon which the claim of adverse possession is geared to. 190.Based on the testimonies of the both the Plaintiffs and the Defendant, it is clear that some of the Plaintiffs and/or their parents did enter the suit property as way back as 1960 and had a number of structures on the same for their personal use. 191.As such, this Court is satisfied and makes a finding that indeed there was an entry into the suit property by the Plaintiffs and/or their parents on the suit property from the year 1960 through the construction of various structures for their personal use. Ingedient No.2- Was the Occupation Open & Notorious to the Registered Owner? 192.The second ingredient is whether the entry and occupation by the Plaintiffs was open and notorious against the registered owner’s rights over the suit property. 193.In this ingredient, there are two fundamental aspects that a person claiming adverse possession must demonstrate. 194.The first aspect is that the occupation was one that was open to the general public and in particular the registered owner and the second aspect is that that occupation was notorious and contrary to the ownership rights of the registered owner. 195.Starting with the first aspect, the Plaintiffs did testify that their parents and/or themselves had constructed various structures on the suit property since 1960. 196.The Defendant in his testimony did not dispute the existence of various structures that could have been developed by the Plaintiffs on the suit property either prior to his acquisition or during his ownership. 197.Clearly therefore, this Court is of the considered view and finding that the Plaintiffs occupation of the suit property was one which was open to the general public and in particular the Defendant who was the registered owner at that time. 198.On the second aspect regarding the issue of whether or not the occupation was notorious and in fact contrary to the ownership rights of the Defendant, the Plaintiffs in their testimonies did admit that they had been granted permission by the original registered owner and subsequently the Defendant herein to construct whatever structures that were on the suit property. 199.The Defendant in his testimony did confirm that the Plaintiffs herein had been employees of either the first registered owner and thereafter taken over by him upon acquiring the suit property in the year 1982. 200.In essence therefore, the Plaintiffs occupation on the suit property including the developments erected therein were with the consent of the first registered owner and/or the Defendant upon acquiring the suit property herein in 1982. 201.In the case of GABRIEL MBUI-VERSUS- MUKINDIA MARANJA (SUPRA), the Court did draw the following conclusion; -“The occupation of the land by the intruder who pleads adverse possession must be non-permissive use, i.e. without permission from the true owner of the land occupied. It has been held many times that acts done under licence or permitted by, or with love (sic) of, the owner do not amount to adverse possession and do not give the licensee or permitted entrant any title under the limitation statute.If one is in possession as a result of permission given to him by the owner, or if he is in possession of the land as a licensee from the owner, he is not in adverse possession.Permissive occupation is inconsistent with adverse possession.The stranger must show how and when his possession ceased to be permissive and became adverse.The rule on permissive possession is that possession does not become adverse before the end of the period during which one is permitted to occupy the land.Accordingly, where a permissive possession or occupation accorded on the ground of charity or relationship was intended, limitation operates from the time when possession first became adverse; a licensee (whose possession is only permissive) cannot claim title only by possession was adverse to that of the licensor to his knowledge and with his acquiescence;where possession was consensual or contractual in its inception, it cannot be called ‘adverse’… The ingredient of unpermitted occupation is usually expressed as “hostile” possession, to emphasize that ‘hostility’ is the very marrow of adverse possession.And to say that possession is hostile means nothing more than that it is without permission of the one legally empowered to give possession.Any kind of permissive use, as by a tenant, licensee, contract purchaser in possession, or easement holder, is rightful and not hostile. Any time an adverse possessor and owner have discussed the adverse possession, permissive agreement may have occurred, and that destroys adverse possession…” 202.The Interested Party once again did testify that it did not have any knowledge of the Plaintiffs occupation on the suit property at the time it acquired the proportion known as LR.No.6459/4. 203.To be able to correctly discuss this aspect, it is crucial to understand that the suit property identified by the Plaintiffs herein is LR.No.6459/3 (originally known as LR.No.6459/2/2) measuring approximately 363.7 Hectares. 204.According to the Plaintiffs, their occupation was within the suit property measuring 363.7 Hectares registered in the name of the Defendant. 205.However, by the time of filing the present suit, the suit property known as LR.No.6459/3 (Originally 6459/2/2) had ceased to exist through a sub-division made on the 29.09.1982. 206.The sub-division of the suit property known as LR.No.6459/3 (Originally LR.no.6459/2/2) did produce the sub-divisions namely LR.no.6459/4 to LR.No.6459/11. 207.Based on this documentary evidence, it is this Court’s finding that the suit property known as LR.No.6459/3 (Originally LR.No.6459/2/2) no longer exists in law and therefore the Plaintiffs cannot claim adverse possession on the same in its original state or nature. 208.Be as it may, the Plaintiffs did identify the portion on which their structures had been erected and/or constructed to be LR.No.6459/4 which was originally registered in the name of the Defendant in the year 1982 and thereafter acquired by the Interested Party on the 12.03.2020. 209.The property known as LR.No.6459/4 measures approximately 45.11 Hectares. 210.The question that now requires to be answered is whether the Plaintiffs occupation and/or structures were indeed on the property known as LR.No.6459/4 which was carved out of the property known as LR.No.6459/3 (Originally LR.No.6459/2/2) or not? 211.According to the testimonies and/or documentary evidence produced by the Plaintiffs, there was no clear evidence that the Plaintiffs had been in occupation and/or developed on the portion of the LR.No.6459/3 (Originally 6459/2/2) which is now registered as LR.No.6459/4. 212.The Plaintiffs did indeed file a Satellite Imagery of the developments that had been erected by the Plaintiffs on the property known as LR.No.6459/3 (Originally LR.No.6459/2/2) but the said Satellite Imagery did not curve out the portion now registered as LR.No.6459/4 to confirm if any structures and/or occupation as claimed by the Plaintiffs ever existed. 213.In a nutshell, this Court is of the considered view and/or finding that the Plaintiffs’ occupation, if any, was not within the portion now known as LR.No.6459/4 registered in the name of the Interested Party. 214.As such, the Plaintiffs do fail to prove that that their occupation of the property known as LR.No.6459/3 (Originally LR.No.6459/2/2) was within the portion now registered as LR.No.6459/4 and hence their occupation cannot be notorious and/or contrary to the interest of the registered owners thereof. 215.In addition to the above, this Court has in previous paragraphs hereinabove made a finding that the Plaintiffs occupation on the property known as LR.No.6459/3 (Originally LR.No.6459/2/2) was premised on their employment by the original registered owner and subsequently thereafter by the Defendant. 216.As such, the Plaintiffs herein cannot make a claim of adverse possession wherein their entry and occupation within the property known as LR.No.6459/3 (Originally LR.No.6459/2/2) was permitted. 217.The only way that the Plaintiffs occupation and/or use of the property known as LR.No.6459/3 (Originally LR.No.6459/2/2) would have become notorious and/or adverse against the Defendant would be from the date of their termination as employees on the suit property. 218.Unfortunately, none of the Plaintiffs did produce any evidence of when they were terminated by the Defendant and asked to vacate the suit property. 219.In conclusion, this Court hereby makes a finding that the Plaintiffs have failed to demonstrate that their occupation although open was notorious and adverse to the proprietary interests of the Defendant herein or the Interested Party. Ingredient No. 3- Was there any Interruption of the Plaintiffs’ Occupation by the Registered Owner Prior to Filing of the Claim? 220.The third ingredient is whether the Plaintiffs occupation on the suit property has been peaceful and uninterrupted by the registered owner prior to filing of the claim for adverse possession. 221.The Plaintiffs at the time of filing the present claim did also file a Notice of Motion Application dated 24.06.2021. 222.In the Supporting Affidavit sworn on 24.06.2021 in support of the Notice of Motion Application therein, the Plaintiffs did plead that their structures and/or occupation on the suit property had been interrupted through the demolitions undertaken by the local Government agencies. 223.During the hearing of this matter, the Plaintiffs did confirm that all their structures on the suit property had been demolished and in fact they were no longer in occupation of any portion of the same. 224.The Defendant on the other hand did testify that the Plaintiffs were not in occupation and/or use of any portion within the property known as LR. No. 6459/3 (Originally LR.No.6459/2/2) and therefore their occupation on the same had been interrupted even before the filing of the present suit in the year 2021. 225.The Interested Party who did acquire the portion registered as LR.No.6459/4 on the 12.03.2020 also did testify that at the time of the purchase, the Plaintiffs herein were not in occupation of any portion of the same. 226.The documentary evidence produced by the Plaintiffs and in particular the pictures of the structures being demolished in the year 2020 as alleged, it is clear that at the time of filing the present suit, the Plaintiffs were not in occupation and use of the suit property herein. 227.In essence therefore, the Plaintiffs occupation on the suit property had been interrupted by either the registered owner and/or his agents. 228.By the time the Plaintiffs were filing the present suit, it had been about one year since their occupation on the suit property had been interrupted and therefore this Court cannot make a finding that the Plaintiffs were peacefully occupying same as their occupation had successfully been interrupted by the Defendant and/or the Government agencies. 229.In conclusion, this Court hereby makes a finding that the Plaintiffs have failed to prove this aspect. Ingredient No.4- Did the Occupation by Plaitiffs Enjoy 12 Years of Peaceful Occupation Prior to Filing the Claim for Adverse Possession? 230.The last ingredient is whether the Plaintiffs did enjoy peaceful occupation of the suit property for a period of 12 years prior to filing the claim for adverse possession. 231.As earlier stated, the provision of Section 7 of the Limitation of Actions Act, Cap 22 makes it mandatory that an Applicant of adverse possession must have been in occupation of the suit property by the time of filing the claim. 232.Based on the determination in Ingredient No. 3, this Court made a finding that the Plaintiffs herein were evicted from the property known as LR.No.6459/3 (Originally LR.No.6459/2/2) or any portion thereof in the year 2020. 233.In other words, by the time the Plaintiffs were filing the present suit in June 2021, there were not in occupation and/or use of the suit property and/or any portion of the property known as LR.No.6459/4. 234.As such, this Court is of the finding that time began running again against the Defendant as regards the suit property from the year 2020 and a mandatory period of 12 years had not lapsed at the time of filing the present suit in June 2021. 235.In other words, this Court hereby makes a finding that the Plaintiffs failed to prove that their occupation on the suit property had been for 12 years by the time of filing the present suit as required by Section 7 of the Limitation of Actions Act, Cap 22. 236.Based on the findings made in the four ingredients discussed hereinabove, it is clear that the Plaintiffs’ claim for adverse possession is not merited as the evidence adduced has not met the threshold required therein. Issue No.3- Is The Present Os by the Plaintiff Merited or Not? 237.In this issue, the Court is to make a determination as to whether the present suit is merited or not. 238.Unfortunately, it is the Court’s finding that the Plaintiffs herein did not satisfy the ingredients of proving adverse possession and therefore the present suit is not merited. 239.All the prayers sought by the Plaintiffs in the present suit are hereby denied. Issue No.5- Who Bears the Costs of the Present Os? 240.It is a settled rule that costs follow the event. 241.In the present suit, the Plaintiffs herein are not successful in prosecuting the same and are condemned to pay costs. Conclusion 242.In conclusion, this Court hereby makes the following Orders in determination of the present suit; -A.The originating summons dated 24.06.2021 be and is hereby disallowed and/or dismissed.B.The plaintiffs herein are condemned to pay costs of this originating summons to the defendant herein as well as the interested party. DATED, SIGNED & DELIVERED VIRTUALLY AT ELDORET ELC THIS 9TH DAY OF JULY 2026.EMMANUEL.M. WASHEJUDGEIn the presence of:Court Assistant: Mr. BrianCounsel for the Plaintiffs: Ms. Otuma holding brief for Mr. AnguCounsel for the Defendant: Ms. AkinyiCounsel for the Interested Party: Mr. Kiprono