https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3151

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA** **ELC LAND CASE NO. E024 OF 2025 (OS)** **JULIANA MUYOKA NYONGESA ...…….....………..1ST APPLICANT** **MARY KHASOA KILONGI .……………………….. 2ND APPLICANT** **JANE NEKESA MUTALI..…………………………… 3RD APPLICANT** **VERSUS** **DAVID WANGILA ………………………………... 1ST RESPONDENT** **JOTHAM WANYONYI MUTAMBO …………...2ND RESPONDENT** **NICHOLAS JUMA WANYONYI ……………..… 3RD RESPONDENT** **JUDGMENT** 1. The Applicants filed the Originating Summons dated 6/10/2025 seeking to be declared the owners of the parcel of land measuring approximately 2.25 acres to be carved out of the land known as Ndivisi/Muchi/875 (the suit land) which they claim to have occupied adversely for over 12 years. They sought to be registered as the owners of that portion of land by operation of law through Sections 7, 17 and 38 of the Limitation of Actions Act in the place of the Respondent and the interested party and for the names of the Respondent and the interested party to be removed and cancelled from the register. In the alternative, they sought a declaration that as a personal representative of his late father, the Respondent holds the title for the 2.25 acres in trust and for the benefit of the Applicants. 2. The application was made on the grounds that the Respondent and interested party had through succession proceedings in Bungoma Succession Cause No. MCE 334/2021 distributed the suit land known among themselves yet the Respondent’s father sold a portion of the suit land measuring 2.25 acres to the Applicants’ relative, the late Frida Nabwire (Frida) in 1974. 3. The Applicants who are widows and who were married to the brothers of the purchaser, claimed that they have been in peaceful, open, quiet continuous, uninterrupted and notorious possession of the suit land for 12 years. The Applicants claimed that they had extensively developed the suit land by constructing residential houses for themselves and their children. They stated that the purchaser and their husbands were buried on the suit land without any objection from the vendor and his family. 4. The 1st Applicants swore the supporting affidavit in which she averred that she was the widow of the late Rasto Wambeye Kinisu (Rasto) who died on 18/10/2014 and was buried on the portion of suit land measuring 2.25 acres. She got married to Rasto in 1992 and they were blessed with four children. They constructed 4 houses on the suit land where she lived with her husband and children. She produced copies of the certificate of death for Rasto, agreement dated 1/10/1974 entered into by Jotham Wanyonyi Mutambo (Jotham) and Frida, agreement dated 21/91997, search for the suit land and photographs taken of their homes on the suit land. 5. She deponed that the Respondent and interested party had distributed and shared the suit land known including the portion which the Applicants occupy. She exhibited the proceedings in the succession cause in which the court found that she had not proved the grounds for the revocation of the grant issued to the Respondent. 6. Mary Khasoa Kilongi swore another supporting affidavit where she stated that she was the widow of the late Joseph Nyongesa Kinisu (Joseph) who died on 10/1/2018. She got married to Joseph in 1988 and they were blessed with 3 children. They constructed 3 houses on a portion of the suit land and had lived there with their children. She reiterated the averments made by the 1st Applicants and added that she had stayed on the suit land for 37 years without any interruption. She exhibited the burial permit for her late husband and photographs of her home on the suit land. 7. Jane Nekesa Mutali, 3rd Applicants also swore a supporting affidavit in which she deponed that she was the widow of the late Alfred Mutali Kinisu (Alfred). She exhibited a copy of his death certificate. She averred that she had been on the land for 22 years without any interruption. She also exhibited photographs of her home on the suit land. 8. The Respondent filed a response to the Originating Summons and denied the allegations made in it. He contended that the claim for adverse possession was not sustainable because the possession was with the knowledge or consent of the rightful owner, was not exclusive or was interrupted by the owner or lawful beneficiaries and authorities and lastly, that the Applicants had failed to establish the necessary elements of adverse possession as required by law. The Respondent sought the dismissal of the Applicants’ claim with costs. 9. When this matter came up on 29/4/2026 for the hearing of the applications dated 10/2/2026 and 29/4/2026, the 1st Applicants requested the court to give her an early hearing date while seeking to bury her child on the suit land. The Respondent’s advocate informed the court that there was a burial dispute before the Webuye Law Courts which had been stayed pending the determination of this dispute. The court directed parties to comply with Order 11 of the Civil Procedure Rules within 7 days and fixed the case for hearing on 8/5/2026. 10. The hearing proceeded on 8/5/2026. The Applicants gave evidence and adopted their witness statements which bear averments similar to what it is contained in their supporting affidavits. The 1st Applicants stated that the Respondent lodged the certificate of confirmation of grant at the lands office and subdivided Ndivisi/Muchi/875 into parcel numbers 12363, 12364, 12365 but that they had continued occupation and use of the 2.25 acres. 11. On cross-examination, she stated that her mother in law Fridah, purchased the suit land which belonged to Jotham. She conceded that the late Jotham did not sign the sale agreement which she produced in evidence. She stated that she got married on the suit land in 1992 and that she found her husband living there. When he died she buried him on the suit land. She knew the Chief called Stephen Ngano. She was not aware of any dispute over the suit land that went to the Chief. She claimed that there was no dispute during the burial of her husband on the suit land. By the time she got married, her mother in law had died. She was emphatic that she had cultivated the suit land and planted maize and beans, which were almost ready. She stated that she had buried her two grandchildren on the same land without any dispute. 12. Mary Khasoa Kilongi told the court that when she got married to Joseph the son of Frida, she found him living on the suit land and understood that the land was theirs. She had lived on the land since she got married in 1988. She did not know of any dispute over the land until recently when her husband went to the Chief’s office. Her husband died in 2018 and she buried him outside her house. 13. Jane Nekesa Mutali testified and told the court that the late Frida, her mother in law bought the land and when she got married, they lived on the suit land with her family. She had lived on the land for 22 years and had never heard of a case before the Chief over the suit land between Jotham’s family and the Applicants. She told the court that when her husband Alfred Kinisu died on 7/2/2011, he was buried peacefully on the suit land. 14. David Wangila Wanyonyi, the Respondent gave evidence and told the court that Ndivisi/Muchi/875 was registered in the name of the Late Wanyonyi Mutambo, his father. He was the duly appointed as the legal administrator of his estate. He explained that the estate of the late Mutambo Wanyonyi had gone through the necessary legal processes including succession proceedings which established the rightful beneficiaries of his estate. Further, that the succession court confirmed the lawful ownership of the suit land in the name of the late Mutambo Wanyonyi. 15. He stated that the Applicants had attempted to assert an adverse possession claim over the suit land based on a purported purchase agreement which was fictitious and was declared invalid by the succession court. That they also sought to annul the grant in the succession proceedings but that application was also dismissed. He was of the view that the Applicants were driven by mischief and had a clear intention of defrauding the rightful beneficiaries of the estate of the late Mutambo Wanyonyi. Additionally, he urged that their claim were inconsistent, unsubstantiated and had been legally challenged and dismissed. He affirmed that the claim of adverse possession by the Applicants was baseless and contrary to the law. Further, that the rightful ownership of the land remained with the estate of the late Mutambo Wanyonyi and any attempt to assert ownership through fictitious agreements or fraudulent claims should be disregarded. 16. On cross-examination, he told the court that Frida was his father’s wife and that she had placed a caution against the land which belonged to Jotham Wanyonyi Mutambo. He denied that Frida purchased the suit land from his father. His father died in 2004. The Respondent conceded that when his father died, the 1st Applicants was on the land. He conceded that Rasto was buried on the suit land during his absence because he had gone to work. He stated that the 1st Applicants left the suit land and then went back. He also conceded that the house that the 1st Applicants’s husband left her in was on the suit land. He denied that the 1st Applicants had planted maize and had had been weeding it visibly. Regarding her children, he stated that she came with them and denied that she had buried them on the suit land. He conceded that the 1st Applicants’s children had homes on the suit land and lived there. 17. On being cross-examined by the 2nd Applicants, the Respondent stated that the 2nd Applicants went to the suit land in 2023. He did not know whether she had buried her husband on the suit land. He had never seen the grave and was not there when she buried her husband. When the 3rd Applicants cross-examined him, the Respondent stated that Frida was his father’s wife and lived with his father. He denied having seen the 3rd Applicants plant maize and bananas on the suit land. He did not know if she buried her husband on the suit land but knew that she stayed on the land. He saw her on the land in 2018 when he had come from work. He was working in Eldoret. He had not seen the 3rd Applicants’s children’s houses on the suit land and stated that it was only the 3rd Applicants’s house on the land. He maintained that she did not plant the trees on the suit land and that it was he who planted them. 18. On re-examination, he told the court that he went to work after burying his mother in 1986. When he came back he found the Applicants on the land. He stated that Frida married his father in 1974 when they were young which made their mother leave the home. He stated that the 1st Applicants’s children had built their homes on the land then changed this to say the houses on the land were built by his father. He knew Rasto but did not know where he was buried and had not seen the graves. 19. Steven Lukorito Ngano, who served as the Chief of Muchi Location from 1997 to 2019 gave evidence. The parties in this case were well known to him, being residents of Muchi location. From his personal knowledge, he knew that the suit land belonged to Jotham Wanyonyi, who died in 2004 leaving behind his sons who are the Respondent and interested party in this case. He stated that Jotham had married Fridah who died in 1986. He stated that Fridah was an aunt to the Applicants and that the Applicants went to Frida’s funeral and never went back to their home. 20. Mr. Ngano told the court that Jotham took a complaint to his office wanting to evict the Respondents (sic) and that the case was alive in his office from 1993 and by the time he died, it had not been resolved. Upon getting letters of administration, the Respondent took over the case at his office. He retired before the case was finalized. He was aware that his successor advised the Respondent to file a suit for the eviction of the Applicants. He did not witness any sale of the suit land by the late Jotham to the Applicants. 21. On being cross examined by the 1st Applicants, the retired Chief stated that Jotham and Frida never went to his office. He confirmed that the Respondent and interested party who were Jotham’s children started harassing the Applicants to leave the suit land after Jotham’s death. He knew that the 1st Applicants had been living on the suit land and that she had buried her husband on the land. He only handled the dispute for Alfred Mutali during his burial. He did not know whether the 2nd Applicants buried her husband on the suit land and did not know if she had children. He knew that the 2nd Applicants had built on the suit land and lived there. He only saw the 3rd Applicants when she had a dispute for her husband’s burial. He did not know what was on the land and whether the 3rd Applicants had planted trees and maize on the land or if her children had built on the land. He confirmed that the 3rd Applicants buried her husband on the suit land. 22. During re-examination, he told the court that when Alfred Mutali the 3rd Applicants’s husband died, there was a dispute regarding his burial site because Jotham’s family did not want him to be buried there since there was a land ownership dispute. When the land documents were presented to him, he noted that the land was owned by a dead person and could not proceed with the matter. He did not follow up the matter and that is how the 3rd Applicants’s husband was buried on the suit land in 2011. He maintained that there had been a dispute over the land despite the fact that the Applicants settled on the suit land. He knew Jotham and Frida were staying on that farm. He told the court he lived one kilometre away from the suit land. 23. Upon conclusion of the hearing, the court directed parties to file written submissions within 3 days each. The Applicants relied on their pleadings and argued that they had lived peacefully on the suit land measuring 2.25 acres since 1992, 1988 and 1996 respectively before and after the death of Jotham. They pointed out that the Respondent and his witness did not deny but confirmed that the Applicants had houses on a portion of the suit land and that they had buried their husbands on the land. Further, that the Respondents admitted during cross-examination that the purchaser, Frida Nabwire died and was buried on the disputed portion of the suit land although he knew that she was his father’s second wife. They added that the Respondent admitted that there were no disputes in court that involved his father before his death. They submitted that the retired Chief who gave evidence on behalf of the Respondent confirmed to the court that the Applicants stayed on the land and have been there for a long time. The Applicants concluded that despite knowing the existence of this suit, the Respondent proceeded to subdivide the suit land into new titles. They sought to have the land revert to the original number so that the decree can be implemented. 24. The Respondent and interested party submitted that the Applicants’ claim was legally unsustainable, procedurally incompetent and constitutionally offensive to the sanctity of title protected by the Constitution. They urged that the Applicants’ case was riddled with contradictions, in that on one hand they claimed occupation through the alleged purchase by Fridah Nabwire from the Respondent’s father in 1974 and on the other hand, they seek to rely on adverse possession, a doctrine founded on a hostile occupation against the title they acknowledge. 25. They stated that the law governing adverse possession was to be found in Sections 7, 13, 17 and 38 of the Limitation of Actions Act and that the Applicants had failed to prove open, exclusive, continuous and hostile occupation for a period exceeding 12 years. They cited **Kasukwe v Mwaani Investments Limited & 4 Others [2004] 1 KLR 184** where the court stated that the possession must be without force, without secrecy and without permission. They submitted that the Applicants failed to satisfy this threshold and that the possession was permissive because the Applicants’ testimony confirmed that their occupation originated from the alleged purchase by Frida Nabwire from the Respondent’s late father. 26. Further, that by their pleadings and evidence, the Applicants confirmed that their entry on the suit land was permissive and contractual in nature. They submitted that the Court of Appeal held in Wambugu v Njuguna (1983) KLR 172 held that where possession was founded on permission, it could not become adverse unless the claimant demonstrated a clear repudiation of the owner’s title. They added that the court held in **Samwel Miki Waweru v Jane Njeri Richu (2007) eKLR** that a purchaser in possession occupies land as a licensee and such possession cannot become adverse until the permission is expressly terminated. They argued that the Applicants failed to demonstrate when their alleged permissive occupation transformed into hostile possession. 27. The Respondent submitted that he called the retired Chief whose evidence was clear, consistent and unshaken during cross-examination. That the retired Chief stated that during the burial arrangement for the 3rd Applicants’s husband in 2011, a serious ownership dispute erupted between the Applicants’ family and the Respondent’s family regarding the suit land and that that the dispute was never resolved and remained alive. The Respondent cited **Kweyu v Omuto [1990-1994] EA 234** where the court held that adverse possession did not arise where possession was interrupted, contested or disputed by the true owner. 28. The Respondent and interested party urged the court to interpret the doctrine of adverse possession within the framework of the Constitution in line with Article 40, which guarantees the right to property and protect citizens from arbitrary deprivation of land. They argued that the doctrine of adverse possession was a colonial common law relic whose effect was to defeat registered title through lapse of time and that in the current constitutional dispensation; such a doctrine must be interpreted restrictively and cautiously. They pointed out that in **Dina Management Limited v County Government of Mombasa & 5 Others [2021] 1 KESC 8 (KLR)** the Supreme Court emphasized the sanctity and constitutional protection of title of a land. 29. The Respondent and interested party submitted that the Applicants could not rely on a sale agreement and at the same claim hostile possession against the vendor’s title. They pointed out that the alleged agreement was not signed by the Respondent’s father and that it did not comply with Section 3 (3) of the Law of Contract Act. Further, that the suit land being agricultural land, it was necessary to obtain land control board consent under Section 6 (1) of the Land Control Act and that none was produced in court. 30. The other point taken up by the Respondent and interested party was that the Applicants did not produce any grant of letters of administration authorizing them to sue on behalf of the estate of Fridah Nabwire as required by Section 82(a) of the Law of Succession Act. Lastly, they urged that Ndivisi/Muchi/875 had already been subdivided and transmitted following the confirmation of grant in June 2024 in Bungoma CM Succession Cause No. E334 of 2021. That the Applicants filed this suit in October, 2025 against the title which had already been extinguished in law and that this court lacked jurisdiction and must down its tools. 31. The issue for determination is whether the Applicants have proved their claims on a balance of probabilities. From the evidence adduced, there is no doubt that the Applicants and their families have lived on the suit land since they got married in since 1992, 1988 and 1996 when the Applicants got married. They stated in their evidence that they buried their husbands on the suit land. The 1st Applicants’s husband Rasto, who the Respondent knew, died on 18/10/2014 was buried on the suit land as was the 2nd Applicants’s husband who died in 2018 and she buried him outside her house. It is only when the 3rd Applicants’ husband died in 2011 and was to be buried on the suit land that there was a confrontation as the retired Chief stated in court. Eventually, he was buried on the suit land. The 1st Applicants told the court that she had buried two grandchildren on the suit land. The Respondent explained that after burying his mother in 1986 he left for work and did not about the graves of the Applicants’ relatives on the suit land. 32. The Retired Chief told the court that the families of the Applicants went to the suit land to bury their aunt Frida and never left. Frida died in 1986 and was buried on the suit land. The Respondent’s father died in 2004. Neither his father nor the Respondent filed suit to remove the Applicants from the portion of the suit land which they occupy. The Applicants were married between 1988 and 1996 and found their husbands living on the suit land. By the time they filed this suit in 2025, they had been in actual, open, notorious and continuous occupation of a portion of the suit land for more than 12 years. The Respondent’s title over the suit land had been extinguished through the adverse possession of a portion of the land by the Applicants. 33. The Applicants filed this suit in their personal capacity claiming that they were entitled to be registered as the owners of a portion of the suit land due to their long occupation and use of the land. It was not necessary for them to obtain letters of administration for the estate of the late Frida before lodging their claim. 34. The Respondent and the interested party invited this court to interpret the doctrine of adverse possession within the framework of the Constitution in line with Article 40, which guarantees the right to property and protect citizens from arbitrary deprivation of land. They argued that the doctrine of adverse possession was a colonial common law relic whose effect was to defeat registered title through lapse of time and that in the current constitutional dispensation; such a doctrine must be interpreted restrictively and cautiously. While it is true that Article 40 of the Constitution guarantees every person the right to acquire and own property of any description in any part of Kenya, the constitutional provision does not the manner in which the property protected may be acquired. 35. This is to be found in Section 7 of the Land Act which provides that title to land may be acquired through allocation, land adjudication process, compulsory acquisition, prescription, settlement programmes, transmissions, transfers and any other manner prescribed in an Act of Parliament. The Applicants claim the suit land through adverse possession, which is provided for under the Limitation of Actions Act. 36. The Respondent argued that Ndivisi/Muchi/875 had ceased to exist after it was subdivided and transmitted following the confirmation of grant in June 2024 in Bungoma CM Succession Cause No. E334 of 2021. He urged that this court lacked jurisdiction to determine this claim. The succession case did not determine the issue of ownership of the suit land, which falls within the jurisdiction of this court. 37. The Applicants claimed to be entitled to a portion of the suit land measuring approximately 2.25 acres to be carved out of the suit land. However, they did not tender any evidence to prove that this was the exact portion of the suit land which they are in possession of. They only proved that they occupy a portion of the suit land where they have built homes, farm crops and have buried their dead without establishing the size of the land that they occupy. 38. The Applicants have proved on a balance of probabilities that they are entitled to be registered as the owners of a portion of the suit land which they occupy comprised in Ndivisi/Muchi/875. The Applicants will meet the survey costs of excising the portion of land which they occupy out of Ndivisi/Muchi/875 currently registered as Ndivisi/Muchi/12363 to Ndivisi/Muchi/12365. The subdivision of the land will take into account the portions occupied by the Respondent and Interested Party as well as the claim by Ayub Lukorito. Each party will bear its costs. Delivered virtually at Bungoma this 19th day of May 2026. **K. BOR** **JUDGE** **In the presence of: -** Ms. JulianaMuyoka, Mary Khasoa and Jane Mutali- the Applicants Mr. Reuben Wegesa for the Respondent and Interested Party Court Assistants- Bett & Metrine