Omunyin v Ang’edu (Environment and Land Case E009 of 2023) [2026] KEELC 4459 (KLR) (16 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC LC NO. E009 OF 2023** **PETER KOINANGE OMUNYIN ………….….……...…….. PLAINTIFF** **= VERSUS =** **FLORENCE NANJALA ANG’EDU ………….…………… DEFENDANT** **J U D G M E N T** 1. This judgment was due on 5th March 2026. However, following my transfer from Busia to Iten and which was effective 15th January 2026, I had to prioritize my part heard cases and deliver judgments and rulings. That contributed towards the delay in delivering this judgment. The same is regretted. 2. **PETER KOINANGE OMUNYIN** (the Plaintiff) moved this Court vide his Originating Summons dated 4th September 2023 and filed on 7th November 2023. He sought a determination of the following issues against **FLORENCE NANJALA ANG’EDU** (the Defendant) with respect to the land parcel **NO SOUTH/TESO/ASINGE/946** (the suit land): 3. **That the Plaintiff be declared the absolute registered owner of 1.0 hectare (2.5 acres) or thereabout out of the land parcel NO SOUTH/TESO/ASINGE/946 as demarcated on the ground and in which he has been in actual possession and use adversely, notoriously, openly, and uninterrupted for a period exceeding 21 years.** 4. **That the Defendant be ordered to execute all documents of transfer in respect of the land parcel NO SOUTH/TESO/ASINGE/946 measuring 1.0 hectare (2.5 acres) or thereabout as occupied and demarcated on the ground in favor of the Plaintiff failing which the Deputy Registrar or any authorized officer of this Honourable Court be empowered to execute the same in place of the Defendant and the County Land Registrar Busia to dispense with the production of the original title deed if the Defendant fails to comply and/or produce the same.** 5. **That an injunction and inhibition do issue restraining the Defendant, her agents, servants, or family members from interfering with the possession and use of the suit land by the Plaintiff and his family members and agents disposing of or transferring the suit land and in particular the 2.5 acres claimed by the Plaintiff or any part thereof pending the hearing and final determination of this case.** The Plaintiff set out the following grounds on which his Originating Summons is hinged: 1. That the Plaintiff bought 2.5 acres out of the suit land from the Defendant’s late husband, **ANG’EDU EJAKAIT IGNATIUS,** on 11th September 2002 and paid full consideration. 2. That the vendor demarcated the 2.5 acres for the Plaintiff on the ground using euphorbia and trees and though the Defendant uprooted some of the euphorbia, the trees marking the boundary are intact to date. 3. That from 2002 to date, the Plaintiff has been in actual and consisted (sic) use of the suit land which he has been using for growing food crops to date. 4. That from 2002 to date, neither the Defendant nor her late husband has been in occupation and use of the Plaintiff’s 2.5 acres. 5. That the Plaintiff has thus acquired title to the 2.5 acres by adverse possession and or constructive trust. In support of his claim, the Plaintiff filed an affidavit of even date in which he confirmed that the Defendant is the registered proprietor of the suit land which measures 3.2 hectares (8 acres). That on 11th September 2002, he purchased from **ANG’EDU EJAKAIT IGNATIUS,** the Defendant’s late husband, a portion of the suit land measuring 2.5 acres and paid the full consideration. The boundary of the said 2.5 acres was marked on the ground and euphorbia plants as well as grevillea trees were planted, although some of them have been uprooted by the Defendant. 1. The Plaintiff added that since 2002 to date, he has been in total, actual, consistent and notorious occupation of the 2.5 acres tilling and growing various food crops as well as grazing thereon. That neither the Defendant nor her late husband or any other person has ever used that portion on which the Defendant’s late husband left him in occupation when he passed away. 2. He has been advised and readily believes that the Defendant’s title to the 2.5 acres of the suit land has been extinguished by operation of the law through adverse possession or a constructive trust. He therefore seeks an order that he be registered as the proprietor of the said 2.5 acres. 3. Annexed to the supporting affidavits are the following documents: 4. A copy of the register for the suit land, Annexure **PKO-1.** 5. A copy of the sale agreement, Annexure **PKO-2.** The Plaintiff also filed a further list of documents dated 7th February 2024 to which he annexed photographs showing a crop of maize, trees and a cow. 1. The Plaintiff also filed statements of his witness **DISMAS IPOKO (PW2), BONFACE OKABANI (PW3)** and **GRACE AGUTI EKISA (PW4).** 2. The Plaintiff further filed a list of documents dated 10th February 2025. 3. Annexed thereto is a letter dated 9th October 2024 by one **JOSEPH KORIR KIPYATOR** who is the Assistant County Commissioner, Mt Elgon Sub-County and who previously served in Amukura Division Teso South. He indicates therein how he tried to resolve this dispute unsuccessfully, so he advised them to come to Court. 4. In his statement dated 12th April 2024, **DISMAS IPOKO, (PW2)** states that the Plaintiff is his clansman while the Defendant was married to his nephew **IGNATIUS ANG’EDU EJAKAIT** now deceased. 5. That the deceased needed money to pay fees at **KILIMAMBOGO TEACHERS COLLEGE** or otherwise forfeit his chance. By some good luck, the Plaintiff who was working at **KETRI MUGUGA** returned home and the deceased approached him to buy land 2.5 acres out of the suit land at Kshs.22,000 per acre making a total of Kshs.55,000. The deceased approached the witness to be present during the transaction and draw the sale agreement since he was the clan chairman. 6. The witness agreed and the sale agreement was drawn, signed by both parties and their witnesses including this witness. One of the witnesses was the late **ELIUD ODULA** who was a member and Secretary of the Land Disputes Tribunal at Chakol. On the day when the sale agreement was signed, the Plaintiff paid Kshs.45,000 in cash to the deceased who immediately left to go and secure his place at the college lest it be given to someone else. 7. The Plaintiff entered the suit land in 2002 and the boundary of the 2.5 acres was marked by elders and the Plaintiff planted trees thereon. By the time the Defendant’s late husband died, there were mature trees on the land. 8. In 2021, the Defendant wanted to evict the Plaintiff from the suit land and the matter was reported to the Assistant County Commissioner Amukura, **MR. JOSEPH KIPYETOR** who visited the suit land and recommended that he was satisfied that the Plaintiff had purchased the land and was in occupation of the same. 9. **BONIFACE OKABINI (PW3)** recorded his statement dated 7th February 2024. He is a cousin and neighbor to the Plaintiff but their parcels of land are separated by a road. The Defendant is married to his nephew. 10. He added that in 2002, the Defendant’s late husband sold land to the Plaintiff which he has been tilling and grazing his cows since then. Since the land is on the road, everybody knows that it belongs to the Plaintiff. Its boundary is clearly marked with trees and the Plaintiff has been planting food crops thereon to-date and there are also mature trees. Meanwhile, the Defendant’s late husband completed his college and was employed as a teacher until his demise. 11. **GRACE AGUTI EKISA (PW4)** recorded her statement dated 18th November 2024. She is a daughter-in-law to the Plaintiff. She stated that the Defendant’s late husband was admitted to join a Teacher’s Training College but could not raise the fees. So in 2002, he decided to sell his land to the Plaintiff. A sale agreement was drawn by **DISMAS IPOKO, (PW2)** while she and others signed as witnesses. The Plaintiff paid Kshs.45,000 on the day the sale agreement was executed and the balance was to be paid later. The portion partitioned was 2½ acres and the elders marked the boundary. The Plaintiff started using the said land planting crops and trees. The Defendant’s late husband completed college and became a teacher until his demise leaving the Plaintiff peacefully occupying the suit land. Neither the Defendant nor her family members have ever used the portion which the Plaintiff purchased and continues to use. 12. In opposition to the Originating Summons, the Defendant filed a replying affidavit dated 13th November 2023. She has averred therein that she is the registered proprietor of the suit land having acquired it through transmission as the Administrator to the Estate of **KISITO IWALA,** who was the father of her deceased husband **IGNATIUS EJAKAIT ANG’EDU**. That the Plaintiff is her neighbor across the road and they remained good neighbors and have never had issues. That the Plaintiff and her deceased husband were good friends and there was no formal sale agreement between them although the deceased allowed the Plaintiff to till the suit land. She had never been informed by her late husband, relatives, chief or village elder that the Plaintiff had purchased any land from him. And during the burial of her late husband the Plaintiff was present and in his speech he never made any claim to land, animals, money or any property from the deceased. Therefore, the Plaintiff should not claim anything and has no color of right to claim land from the Defendant. 13. That the sale agreement is not valid as she did not give her consent as a spouse. It is forged and she was only made aware of it when she was called to the chief’s office to discuss the land issue. The Plaintiff was questioned about the credibility of the sale agreement but he failed to convince the chief and others. The Plaintiff was not able to explain how he purchased the suit land without involving the Defendant’s family members. The Plaintiff is only taking advantage of the fact that the Defendant is a widow and he is using his money to fight her. His claim is frivolous, bad in law, vexatious, and a waste of judicial time. It should be dismissed with costs. 14. The Defendant filed the following documents annexed to her replying affidavit. 15. Copy of grant of letters of administration issued to her on 30th August 2023 in **BUSIA CMC SUCCESSION CAUSE NO E423** of **2022** in respect to the Estate of **KISITO IWALA, OMUSE IWALA** and **ERNEO IWALA.** 16. Copy of certificate of Confirmation of grant issued to her in **BUSIA CMC SUCCESSION CAUSE NO E423** of **2022**. 17. The Defendant also filed statements of her witnesses, **CATHERINE ALUNGAT EJAKAIT (DW2)** and **JOHN PAPAI OLALA (DW3).** Both are undated. 18. In her statement which is undated **CATHERINE ALUNGAT EJAKAIT (DW2)** states that she is a sister-in-law to the Defendant and a sister to the deceased. That to her knowledge the deceased did not sell land to anyone. Rather, that the Plaintiff was only tilling the suit land following an agreement arising out of friendship between him and the deceased. The sale agreement produced herein is forged and cannot be proof of any sale. That the Defendant legally acquired the suit land and it cannot be claimed by any party. The suit should be dismissed with costs. 19. In his statement **JOHN PAPAI OJALA (DW3)** states that he is an elder brother of the deceased **IGNATIUS ANG’EDU EJAKAIT**. That the Defendant acquired the suit land by way of transmission and the Plaintiff who was aware of the succession process did not file any objection. That at no time did the deceased disclose to his family that he had sold any land to any person. 20. That this dispute was referred to the District Officer who tried to settle it but the Plaintiff was adamant. This Court should determine this dispute amicably and without bias to defraud the Defendant who is a widow and protect her matrimonial property. 21. The hearing commenced on 9th April 2024 with the Defendant acting in person. The Plaintiff was represented by **MR. ONSONGO**. 22. The parties adopted their affidavits and statements of their witnesses as their evidence. I have already summarized the contents thereof above. They also produced as their documentary evidence the documents filed herein. Submissions were thereafter filed both by **MR. ONSONGO** instructed by the firm of **WYCLIFFE OBWOGE ONSONGO** **&** **COMPANY ADVOCATES** for the Plaintiff and by the Defendant in person. 23. I have considered the evidence by the parties and the submissions filed. 24. The Plaintiff’s case is that he is entitled to a portion of the suit land measuring 2.5 acres by way of adverse possession having been in occupation and possession of the same since 11th September 2002 when he purchased it from the Defendant’s deceased husband. He also hinges his claim on a constructive trust. 25. The Defendant disputes that claim and pleads that her deceased husband did not sell any portion of the suit land to the Plaintiff. Further, that the sale agreement which the Plaintiff has produced is in fact a forgery. 26. **Section 38(1)** of the **Limitation of Actions Act** allows the Plaintiff to approach this Court for an order that he is entitled to a portion measuring 2.5 acres out of the suit land by way of adverse possession. It reads: **38 (1): “Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.”** In the case of **KASUVE -V- MWAANI INVESTMENTS LTD &** **OTHERS** **2004 KECA 161 KLR 2004 KLR 184 C.A. CIVIL APPEAL NO. 35** of **2002 NBI],** it was held that: **“And in order to be entitled to the land by adverse possession the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of 12 years either after dispossessing the owner or by the discontinuation of possession by the owner on his own volition.”** The Supreme Court of India in the case of **KARNATAKA BOARD OF WAKF -V- GOVERNMENT OF INDIA & OTHERS 2004 10 SCC 779** and which decision has been followed by Courts in this country held thus: **“Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is peaceful, open and continuous.”** In the case of **MTANA LEWA -V- KAHINDI NGALA MWAGANDI C.A. CIVIL APPEAL NO. 65** of **2014 [2014 eKLR]** the Court held that: **“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, the period 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 is also now well settled that a purchaser of land having paid the full purchase price is a person in whose favour time for purposes of adverse possession can begin to run from the date when the last installment is paid - **PUBLIC TRUSTEE, TRUSTEE -V- WANDURU 1984 KLR 319.** 1. It is common ground that the suit land was first registered in the names of **KISITO IWALA, OMUSELE IWALA** and **ERINEO IWALA** on 3rd July 1972. It was then registered in the name of the Defendant on 19th June 2023. The Plaintiff’s case is that he purchased a portion of the suit land measuring 2.5 acres vide a sale agreement dated 11th September 2002 from **IGNATIUS ANG’EDU EJAKAIT** the Defendant’s late husband. He has been in actual possession and occupation of the said portion ploughing and growing trees thereon to the exclusion of any other persons including the Defendant. 2. The Defendant says she is not aware of any sale agreement involving the Plaintiff and her late husband. That the Plaintiff is her neighbor on the other side of the road and was a good friend of her late husband with whom they used to work and do their things together. 3. A home-made sale agreement executed between the Plaintiff and the Defendant’s deceased husband is part of the documents produced herein. And although the Defendant says she knows nothing about it, the Plaintiff’s witnesses **GRACE AGUTI EKISA (PW4)** and **DISMAS IPOKO (PW2)** and who are in fact the Defendant’s relatives confirmed that they signed the sale agreement as witnesses thereto. Neither the Defendant nor her witnesses, **CATHERINE ALUNGAT EJAKAIT (DW2)** and **JOHN PAPAI OJALA (DW3)** were signatories to the sale agreement which speaks for itself. They are therefore strangers to the said agreement and this Court would prefer the evidence of the Plaintiff and his witnesses and make a finding that indeed the Plaintiff took possession of the said 2.5 acres out of the suit land after paying the purchase price. It also became clear during the trial that the Defendant’s deceased husband indeed needed money for his college fees. This is what the Defendant said when cross-examined by **MR. ONSONGO** on 13th October 2025. **“It is true that my husband was called IGNATIUS ANG’EDU. He was admitted to a Teacher’s Training College and needed money. It is true that he was a friend to PETER OMUNYIN the Plaintiff in this case. He only allowed the Plaintiff to plough the land. It is true that by the time my husband died, the Plaintiff was ploughing the land. I was not involved in the sale agreement between the Plaintiff and my late husband.”** The Defendant is therefore suggesting that the Plaintiff was only allowed by her late husband to plough the land. However, the totality of the evidence herein is that indeed the Plaintiff purchased the suit land and took possession of the portion measuring 2.5 acres as a purchaser. That explains why he was still on the land without any intrusion by the Defendant’s deceased husband who obviously recognized his interest in the said portion and never made any attempt to evict him. 1. The Defendant claims she was not involved in the sale agreement. She also feels that the Plaintiff is taking advantage of the fact that she is a widow. The Plaintiff did not strike me as such a person and the Defendant herself described him as a good neighbor. In paragraphs 5 and 6 of her replying affidavit, she has disposed thus: **5: “The applicant is my immediate neighbour on the other side of the road where we have been good neighbours. We have never had any issues.”** **6: “That they were good friends with my husband as they used to work together and do their things together but there was nothing formal between them due to their friendship. My husband allowed him to till our land but until his death, nothing has ever, ever happened like formal agreement of sale of land.”** As stated earlier, the sale agreement was what is commonly known as a **“homemade”** agreement. It was a sale agreement nonetheless and it was on that basis that the Plaintiff took possession of the 2.5 acres of the suit land which he has utilized as his own property. The suggestion that the Defendant’s deceased husband only gifted the Plaintiff the 2.5 acres for use and thereafter return it to him cannot be true. The Defendant’s deceased husband parted with the said portion of land following the sale agreement. And while the sale agreement was not elegantly drawn, it was nonetheless a sale agreement though that is not what the Plaintiff seeks to execute by his suit. His claim is that having entered the suit land following that sale agreement, he has acquired the portion measuring 2.5 acres by way of adverse possession. 1. It is also common ground that the Plaintiff’s occupation and possession of the said 2.5 acres out of the suit land has been open, peaceful, continuous with the knowledge of both the Defendant’s husband and after him, the Defendant and her family and without any interruption. The Plaintiff has dispossessed the Defendant of the 2.5 acres out of the suit land. When he was cross-examined by the Defendant during the hearing on 9th April 2024, this is what the Plaintiff said: **“I bought 2½ acres. The sale agreement says so. I still have trees on the land which measures 2½ acres. The photographs show the crop of maize which is yours and the maize is on my portion measuring 2½ acres.”** Adverse possession is about dispossession of the owner by the claimant. In the case of **WAMBUGU -V- NJUGUNA 1983 KLR 172,** it was held that: **“In order to acquire by the statute of Limitation a title to land which has a known owner, the owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the property that defeats the title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.”** The Court then went on to add that: **“The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed and has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite number of years.”** From the Defendant’s own testimony, there is no doubt that the Plaintiff has dispossessed the Defendant of a portion of the suit land measuring 2.5 acres and has satisfied the threshold for an order that he has acquired the said land by way of adverse possession. 1. The Plaintiff has also pleaded that he is entitled to the said portion by way of constructive trust. Such a trust was defined in the case of **TWALIB HATAYAN TWALIB HATAYAN & ANOTHER -V- SAID SAGGAR AHMED AL HEIDY & OTHERS 2015 eKLR** as: **“… an equitable remedy imposed by the Court against one who has acquired property by wrong doing … It arises where the intention of the parties cannot be ascertained, if the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit … As earlier stated, with constructive trust, proof of parties intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment.”** In the case of **YAXLEY -V- GOTTS 2000 Ch 162,** which case has been followed in this country, it was held that a purchaser of property can rely on the doctrine of constructive trust to claim an interest in the property. Trust is all about equity. When the Plaintiff was cross-examined by the Defendant on 9th April 2024, he said: **“It is true that your husband died in 2013. The agreement was made on the land. Your late husband kept telling me that he would get me the title deed but he died before doing so. It is true that I was present during the burial of your husband. When you stopped me from using the land in 2022, I reported to the chief.”** The moment the Defendant’s deceased husband was paid for the 2.5 acres out of the suit land, he became a trustee holding the said portion of land in trust for the Plaintiff. And the Defendant continued being a trustee and holds the land under a constructive trust for the benefit of the Plaintiff. 1. The Plaintiff’s claim hinged on trust is also well founded. 2. Having considered all the evidence herein, I am satisfied that the Plaintiff has established his case for entitlement to a portion of the suit land measuring 2.5 acres. There shall be judgment for the Plaintiff against the Defendant as prayed. 3. With regard to costs, the prime movers in the events leading to this suit were the Plaintiff and the Defendant’s deceased husband. The Defendant was an innocent by stander. It will be harsh to penalize her with costs particularly taking into account the fact that she is now a widow. The order which commends itself to make with regard to costs is for the parties to meet their own costs. 4. I therefore make the following dispositive orders in determining this suit: 5. **The Plaintiff has acquired a portion of land measuring 2.5 acres out of the land parcel NO SOUTH/TESO/ASINGE/946 by way of adverse possession.** 6. **The Defendant’s right to the portion of land measuring 2.5 acres out of the land parcel NO SOUTH/TESO/ASINGE/946 has been extinguished by law.** 7. **The Defendant shall within 30 days from the date of this judgment surrender to the Land Registrar Busia the original title deed of the land parcel NO SOUTH/TESO/ASINGE/946 for cancellation and issuance of a title for a portion measuring 2.5 acres in the name of the Plaintiff.** 8. **The Defendant shall execute all the relevant documents to facilitate the registration of a portion of land measuring 2.5 acres out of the land parcel NO SOUTH/TESO/ASINGE/946 in the name of the Plaintiff, who shall meet the costs of demarcation and registration.** 9. **In default of (4) above, the Deputy Registrar of this Court shall execute all the relevant documents on behalf of the Defendant.** 10. **The parties shall meet their own costs.** **BOAZ N. OLAO** **JUDGE** **16TH JULY 2026** **Judgment dated, signed and delivered by way of electronic mail on this 16th day of July 2026 with notice to the parties.** **Right of Appeal** **BOAZ N. OLAO** **JUDGE** **16TH JULY 2026**