https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4510

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC NO. E015 OF 2021 (O.S)** **PHILLIP IMO OPAMA ………………………..…………………… PLAINTIFF** **= VERSUS =** **BIBIANA TATA MURUNGA ………………..……….…… 1ST DEFENDANT** **ALFRED OTUBONGIA EPEMU ……..…...….….…….. 2ND DEFENDANT** **REUBEN OGAMA AMALLO ……………...…..…..……. 3RD DEFENDANT** **J U D G M E N T** 1. This judgment was due on 10th December 2025. However following my transfer to Iten, I had to prioritize my part heard cases. That explains the delay which is regretted. 2. **PHILLIP IMO OPAMA** (the Plaintiff) moved to this Court vide his Originating Summons dated 14th October 2021. He seeks against **BIBIANA MURUNGA, ALFRED OTUBONGIA EPEMU TATA** and **REUBEN OGAMA AMALLO** (1st to 3rd Defendants respectively) a determination of the following questions: 3. Whether the Defendants are the registered proprietors of the land parcels **NO SOUTH TESO/OSURETTE/4118, 4119** and **4120** measuring 5 acres. 4. Whether the Plaintiff has been in occupation and use of the aforesaid parcels of and for a period exceeding 12 years. 5. Whether the occupation and use has been open, notorious and un-interrupted. 6. Whether the Plaintiff has acquired ownership through adverse possession. 7. Whether the Defendants should pay costs of the suit. 8. In support of his claim, the Plaintiff filed a supporting affidavit on 15th October 2021 (it is un-dated) in which he has deposed, inter alia, that sometime in the year 2001, the 1st Defendant approached him to purchase 2 acres out of the land parcel **NO SOUTH TESO/OSURETTE/461**. He agreed and paid the entire purchase price in the presence of members of their respective families. He is still utilizing that portion measuring 2 acres. 9. Then on 12th August 2006, the 1st Defendant approached him again offering to sell him a further 2 acres of the adjoining land. The Plaintiff agreed and paid the full Kshs.50,000 and took possession of the same where he has planted trees and crops and where he also grazes his livestock. 10. On 15th January 2007, the 1st Defendant offered to sell to him another 1 acre at a consideration of Kshs.30,000 and they signed a sale agreement. 11. However, and unknown to the Plaintiff, the 1st Defendant, fully aware of the Plaintiff’s status as the beneficial owner of the original land parcel **NO SOUTH TESO/OSURETTE/461** sub-divided it to create the land parcels **NO SOUTH TESO/OSURETTE/4118, 4119** and **4120** (the suit land) which she then registered in the following names: 12. **SOUTH TESO/OSURETTE/4118 - BIBIANA TATA MURUNGA (1ST DEFENDANT)** 13. **SOUTH TESO/OSURETTE/4119 - ALFRED OTUBONGIA EPEMU (2ND DEFENDANT)** 14. **SOUTH TESO/OSURETTE/4120 - REUBEN OGAMA AMALLO (3RD DEFENDANT)** 15. The Plaintiff therefore seeks the following orders: 16. **A declaration that the Plaintiff has acquired the land parcels NO SOUTH TESO/OSURETTE/4118, 4119 and 4120 measuring 5 acres by way of adverse possession.** 17. **The County Land Registrar to effectuate (a) above.** 18. **Costs of the suit.** 19. Annexed to the Originating Summons are the following documents: 20. Certificate of Official search for the land parcel **NO SOUTH TESO/OSURETTE/461** in the name of **CHRISTOPHER MURUNGA.** 21. Land sale agreement between the Plaintiff and the 1st Defendant for the purchase of 2 acres out of the land parcel **NO SOUTH TESO/OSURETTE/460** at a consideration of Kshs.50,000. 22. Land sale agreement between the Plaintiff and the 1st Defendant dated 12th August 2006 at a consideration of Kshs.50,000. 23. Land sale agreement between the Plaintiff and the 1st Defendant for the purchase of 1 ace at a consideration of Kshs.30,000. 24. Certificate of Official Search for the land parcel **NO SOUTH TESO/OSURETTE/4119** in the name of **ALFRED OTUBONGIA EMPEMU** 2nd Defendant. 25. Certificate of official search for the land parcel **NO SOUTH TESO/OSURETTE/4120** in the name of **REUBEN OGAMA AMALLO.** 26. Copies of register for the land parcels **NO SOUTH TESO/OSURETTE/4118, 4119** and **4120** in the names of the 1st, 2nd and 3rd Defendants. 27. The Plaintiff also filed the statements of his following witnesses **JOHN A.A. IKOKUNYI (PW2), HANNINGTON KARANI (PW3)** and **STEVEN ISAMURIAT (PW4)** all dated 28th May 2022. 28. In his statement, **JOHN A. A. IKOKUNYI (PW2)** states that he is a retired senior Chief of Aramati sub-location where he worked between 1993 and 2002. That in 2002, he was a witness when in 2006 and 2007 he assisted the Plaintiff and the 1st Defendant enter into a land sale agreement whereby the Plaintiff who had initially purchased 2 acres added another 1 acre. The entire purchase price of Kshs.30,000 was added and the 1st Defendant allowed the Plaintiff to occupy the land which he still does without any interference. 29. **STEVEN ISAMURIAT (PW4)** also states in his statement that he purchased land from the 1st Defendant and the Plaintiff was his neighbour. That they both occupy their portions of land and the Plaintiff has expanded his portion over-time. 30. Although the Plaintiff also filed the statement of **MOSES ORIDI IDUIKITA,** he was not called as a witness. 31. The 1st Defendant filed a replying affidavit dated 18th November 2021 in response to the Originating Summons. She states that the Plaintiff has annexed to the Originating Summons three land sale agreements dated 8th July 2001, 12th August 2006 and 15th August 2007 seeking orders that he has acquired 5 acres of land by way of adverse possession. She however disputes the agreement dated 1st May 2007 which she says is a fraud and she denies having signed it. That the Plaintiff’s claim to 5 acres of land by way of adverse possession is bad in law and should be struck out. 32. That the Plaintiff’s occupation by way of adverse possession continued upto 6th January 2021 when she was summoned by the area chief but she did not respond to the summons as she was unwell. What she knows is that the Plaintiff together with one **JOHN ABOI OPAMA** moved to the suit land sometime in 2001 and started farming thereon. Later on, the Plaintiff and the 2nd Defendant reached an agreement over the portions of the suit land which they are sharing. 33. The 1st Defendant was also later summoned by the Assistant County Commissioner Amukura sub-County on 22nd February 2021 and 16th March 2021 regarding a dispute between the Plaintiff, **JOHN ABOI OPAMA** and their neighbour over a boundary. It was then that she learnt that the Plaintiff and **JOHN ABOI OPAMA** were brothers and had a dispute on how to share the 4 acres of the suit land which they were sharing with each utilizing a portion thereof. 34. It was resolved that a surveyor fix the boundary separating the portions of the Plaintiff and **JOHN ABOI OPAMA** after which the 1st Defendant commenced the process of obtaining the title deeds for each of them. **JOHN ABOI OPAMA** then told her to process the title deed for his share in the name of 2nd Defendant to whom he had already sold his share. So the 1st Defendant processed the title deed for **JOHN ABOI OPAMA’S** share in the name of the 2nd Defendant measuring 2 acres but she still holds the title deed for the Plaintiff as he has refused to give him his particulars to enable him do the transfer. 35. In 2021, she was informed that the Plaintiff had gone to the suit land and destroyed the boundary mark for which he was arrested but later released on Police bond. She was then served with documents in respect of this case 36. It is her case therefore, that there is a dispute between the Plaintiff and the 2nd Defendant over the 2 acres registered in the name of the 2nd Defendant and another 2 acres registered in her name. That the Plaintiff’s case has not met the threshold for adverse possession. 37. The 1st Defendant annexed to her replying affidavit the following documents. 38. An agreement dated 11th February 2021 between the Plaintiff and his brother **JOHN ABOI** showing that they contributed money to purchase 1¼ acres and further that the land purchased from the 1st Defendant would be shared as follows: 39. Plaintiff - 2 acres, 40. John Aboi - 2 acres. 41. Minutes of a land boundary dispute 42. Letter dated 7th June 2021 from the Assistant County Commissioner addressed to the Chief Aremit location regarding a dispute between the Plaintiff and his brother over a boundary. 43. Copy of the title deed for the land parcel **NO SOUTH TESO/OSURETTE/4119** in the name of the 2nd Defendant. 44. Copy of mutation form signed by the 1st Defendant for subdivision of the land parcel **NO SOUTH TESO/OSURETTE/3816** to create land parcels **NO SOUTH TESO/OSURETTE/4114, 4115, 4116, 4117, 4118, 4119, 4120, 4121, 4122, 4123, 4124.** 45. The 2nd Defendant did not file any response to the Originating Summons and neither did he testify during the plenary hearing. 46. The 3rd Defendant **(DW3)** filed his replying affidavit dated 22nd June 2022 in which he averred inter alia that on 15th April 2021 the 1st Defendant sold him a portion of land measuring 1¾ acres out of the land parcel **NO SOUTH TESO/OSURETTE/3816** at a consideration of Kshs.612,500 which he paid in full. The said portion was registered in his name being parcel **NO SOUTH TESO/OSURETTE/4120** and was vacant. That the Plaintiff invaded that portion on 7th June 2021 by destroying the boundary marks which incident was reported to Adungosi Police Station. 47. The 3rd Defendant also filed a sale agreement dated 15th April 2021 by which he purchased a portion of land measuring 1¾ acres from the 1st Defendant. 48. **JOHN ABOI OPAMA (DW2)** is a brother to the Plaintiff. He filed an affidavit dated 18th November 2021 and averred inter alia that he and the Plaintiff had jointly purchased 4 acres of land from the 1st Defendant out of the land parcel **NO SOUTH TESO/OSURETTE/3816.** He then transferred his share measuring 2 acres to the 2nd Defendant. 49. In 2019, a dispute arose between him and the Plaintiff over the boundary to their respective portions as he wanted to sell his portion after processing the title. The Plaintiff did not want that and even threatened to kill him. So the witness sold his portion to the 2nd Defendant who was willing to purchase it. 50. The dispute was reported to the chief who summoned both of them and an agreement was arrived at whereby he and the Plaintiff shared the land in half vide an agreement dated on 11th February 2021. The Plaintiff later went to complain to the County Commissioner who convened another meeting and it was resolved that a surveyor be invited to survey and demarcate the land. That was done and the boundary between the Plaintiff and the witness was done. The witness then showed the 2nd Defendant the boundary between his portion and the Plaintiff’s portion. This was done publicly, but the Plaintiff proceeded later to destroy the boundary and so the matter was reported to Adugosi Police Station vide **OB NO 35/7/6/2021.** 51. The witness annexed to his affidavit the following documents: 1: Agreement between the Plaintiff and himself dated 11th February 2021 by which they agreed to share 2 acres each out of the suit land. 1. The plenary hearing commenced on 5th October 2023 and ended on 15th July 2025. The parties testified and called their witnesses. They all adopted as their evidence the contents of their respective affidavits and statements and also produced their documentary evidence as filed herein. The 2nd Defendant did not testify. 2. Thereafter, submissions were filed both by **MR. JUMBA** instructed by the firm of **ERICK JUMBA & COMPANY ADVOCATES** for the Plaintiff, by **MR. J. P. MAKOKHA** instructed by the firm of **J. P. MAKOKHA & COMPANY ADVOCATES** for the 1st and 2nd Defendants and by **MR. OTANGA** instructed by the firm of **BOGONKO OTANGA & COMPANY ADVOCATES** for the 3rd Defendant. 3. I have considered the evidence by parties both oral and documentary as well as the submissions by the counsel. 4. The Plaintiff’s claim is that he is entitled to 5 acres out of the suit land by way of adverse possession. **Section 38 (1)** of the **Limitation of Actions Act** provides that: **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 & 4 OTHERS 2004 KLR** at page **186**, the Court of Appeal stated thus: **“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** – **Wanje -V- Saikwa *(*NO 2) 1984 KLR 284. A title by adverse possession can be acquired under Limitation of Actions Act for a part of the land and the mere change of ownership of the land which is occupied by another under adverse possession does not interrupt such person’s adverse possession – (see Githu -v- Neete 1984 KLR 776.”** The same Court had the following to say in the case of **RICHARD WEFWAFWA SONGOI -V- BEN MUNYIFWA SONGOI KECA 942 KLR:** **“For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted user of the land. Physical fact of exclusive possession and the *animus possidendi* to hold as owner in exclusion to the actual owner are important factors in a claim for adverse possession.”** Such possession must not be by force, secrecy, or evasion **(*nec vi, nec clam, nec precario*)** - **KIMANI RUCHINE -V- SWIFT RUTHERFORD & COMPANY LTD 1980 KLR 10**. It must also be continuous, uninterrupted for 12 years or more with the knowledge of the owner but without his permission and the claimant must assert a hostile title to the true owner - **TITUS KIGORO MUNYI -V- PETER MBURU KIMANI 2015 eKLR.** 1. It is common ground that the original land parcel **NO SOUTH TESO/OSURETTE/3816** was registered in the name of the Plaintiff before it was sub-divided to create the suit land among other parcels of land. It is also not in dispute that the 1st Defendant is the registered proprietor of the land parcel **NO SOUTH TESO/OSURETTE/4118,** the 2nd Defendant is the registered owner of the land parcel **NO SOUTH TESO/OSURETTE/4119**, while the land parcel **NO SOUTH TESO/OSURETTE/4120** is still registered in the names of the 1st and 3rd Defendants. The Plaintiff’s case is that he purchased 5 acres of land from the 1st Defendant comprised in the suit land. Those five acres of land are the suit land and the purchase was done between 2001 and 2007. The 1st Defendant has pleaded that in fact the Plaintiff only purchased 4 acres, which he was to share with his brother **JOHN ABOI OPAMA**. 2. In support of his case, the Plaintiff produced 3 sale agreements between him and the Plaintiff. They are as follows: 3. Undated agreement for 2 acres. 4. Agreement dated 12th August 2006 for 2 acres 5. Agreement dated **[01/15/07]** for 1 acre. 6. In his list of documents dated 14th October 2021 however, the Plaintiff lists the following as his documents: 7. **“Certificate of search for L.R SOUTH TESO/OSURETTE/461.** 8. **Agreement dated 8/7/2001.** 9. **Agreement dated 12/8/2006.** 10. **Agreement dated 15/1/2007.** 11. **Search for L.R SOUTH TESO/OSURETTE/4119.** 12. **Search for L.R SOUTH TESO/OSURETTE/4120.”** I did not, however, see any sale agreement dated 8th July 2001 or 15th January 2007. However, I am prepared to make a finding, which I hereby do, that the date written 01/15/07 most likely refers to 15th January 2007. The 1st Defendant has disputed her purported signature on the agreement dated 01/05/2007. In paragraphs 4, 5 and 6 of her replying affidavit, the 1st Defendant has averred as follows: **4: “That I understand the applicant to be seeking to be given 5 acres of land for the reasons that he acquired the same by virtue of possession for a period spanning over 12 years.”** **5: “That in support of the claim, the applicant has annexed three agreements dated 8th July 2001, 12th August 2006 and 15th August 2007.”** **6: “That I have had a look at the agreements and I dispute the agreement dated 01/05/2007. The signature mark therein is not mine nor do I sign so and put the applicant to strict proof. It is a fraud and will seek that it be struck out with costs.”** In his oral testimony on 5th October 2023, the Plaintiff said as follows when cross-examined by **MR J. P. MAKOKHA** counsel for the 1st and 2nd Defendants: **“I am claiming 5 acres out of the land. I have no title deed but I have a sale agreement and other documents.”** On her part, when she was cross-examined by **MR BOGONKO** counsel for the 3rd Defendant, the 1st Defendant said: **“The Plaintiff is not entitled to any land. He is only entitled to 2 acres. I sold the Plaintiff 4 acres. Later, I heard that out of the 4 acres, two (2) acres were for his brother JOHN. A boundary was set. I only know that the Plaintiff is entitled to 4 acres. I did not sign an agreement with him. I also sold 1¾ to the 3rd Defendant. I gave him the land and he even has the title deed. The land was just fallow. The Plaintiff was using the land. He was using 4 acres.”** On his part, the Plaintiff’s brother **JOHN ABOI OPAMA (DW2)** said as follows when cross-examined by **MR BOGONKO** counsel for the 3rd Defendant: **“The Plaintiff is my elder brother. We bought the land jointly. It was 4 acres. 2 acres were mine and 2 acres for the Plaintiff. I can see the affidavit dated 11th February 2021. We showed the District Officer. Both the Plaintiff and myself were using the 4 acres. It is not true that we bought 5 acres. We bought only 4 acres from the 1st Defendant.”** 1. In paragraph 2 of his affidavit dated 18th November 2021 and which he adopted as his evidence during the trial, the same witness affirms thus: **2: “That when I entered into transaction with the 2nd Respondent for sale of land, I had been farming the portion thereof measuring approximately 2 acres and my brother the applicant herein was also farming the other 2 acres of the entire parcel of land measuring 4 acres which me and the applicant had contributed money to purchase.”** Considering all the above and taking into account that the 1st Defendant has disowned the signature on the sale agreement dated **“01/15/07”** between her and the Plaintiff for the additional one (1) acre and which appears on the Plaintiff’s list of documents as **“15.1.2007”** (document **NO 4**), I am persuaded that the Plaintiff only purchased 4 acres of land from the 1st Defendant and not 5 acres as he claims. 1. The Plaintiff can therefore only lay claim to 4 acres out of the suit land by way of adverse possession. It is settled law that a purchaser of land after having paid the full purchase price is a party in whose favour time for purposes of adverse possession can run – **PUBLIC TRUSTEE -V- WANDURU 1984 KLR 314.** Counsel for the 1st and 2nd Defendants, citing the case of **SISTO WAMBUGU -V- KAMAU NJUGUNA 1983 KECA 69 KLR,** has submitted that the law of adverse possession does not seek to enforce contractual obligations. But as is clear from the pleadings, the Plaintiff has moved to this Court by way of Originating Summons seeking orders in adverse possession. He is not seeking to enforce any contract between him and the Defendants over the suit land. 2. Having said so, has the Plaintiff satisfied the threshold for a claim of orders that he has acquired 4 acres out of the suit land by way of adverse possession? 3. The copy of title deed and certificates of official search show that suit land is registered in the names of the Defendants as follows including acreage: **1: 1st Defendant - SOUTH TESO/OSURETTE/4118** **0.8 Ha (2.076 Acres)** **2: 2nd Defendant - SOUTH TESO/OSURETTE/4119** **0.8 Ha (2.076 Acres)** **3: 3rd Defendant - SOUTH TESO/OSURETTE/4120** **0.6 Ha (1.483 Acres)** I must add that although the Register for the land parcel **NO SOUTH TESO/OSURETTE/4119** shows that it was registered in the names of the 1st Defendant on 15th July 2021 and in the name of the 2nd Defendant on 22nd July 2021, there is nothing to show how it was transferred to the 2nd Defendant and a title deed issued to him on 22nd July 2021. However, since the 1st Defendant confirms in her evidence that she sold a portion to **JOHN ABOI OPAMA** who sold it to the 2nd Defendant, there is no reason to doubt the 2nd Defendant’s acquisition and ownership of the land parcel **NO SOUTH TESO/OSURETTE/4119** and indicated in the copy of title deed. 1. The 2nd Defendant neither filed a replying affidavit nor any pleading in opposition to the Plaintiff’s Originating Summons. He did not testify during the plenary hearing and there would have been no basis for him to do so in the absence of any pleading. What this means, therefore, is that the Plaintiff’s claim against the 2nd Defendant is not opposed. Even in the absence of the sale agreement dated 15th January 2007 which the 1st Defendant denied having signed, the Plaintiff’s evidence is that latest by August 2006, he had taken occupation of the suit land where he started planting crops, trees and grazing his livestock. And in the absence of any contradictory evidence, this Court can only conclude that the 2nd Defendant had made no attempt to interrupt that occupation and possession by the time this suit was filed on 15th October 2021 which was some 15 years later. Counsel for the 1st and 2nd Defendants made the following submissions at page 2, paragraph 3: **“But should the Court find that in the circumstances, a claim for adverse possession can still be sustained, then it is our submission that the conditionalities for an award of an order for acquisition of the land by adverse possession have not been fulfilled. First is that on the Applicant’s own admission, his possession of the land was challenged and there were disputes handled including by the provisional Administrators where an agreement was reached to share the land between the applicant and the 2nd Respondent?”** Counsel also adds that no surveyor was called to produce a report authenticating the size of the land which the Plaintiff occupied and further, the period of occupation may not be the 12 years required in law. 1. The record shows that the dispute was over a boundary and it involved the Plaintiff and the 1st Defendant. It did not involve the 2nd Defendant. When he was cross-examined by **MR J. P. MAKOKHA** on 5th October 2023, this is what the Plaintiff said: **“I have no relationship with the 2nd Defendant, I have used the land for 22 years. I have no relationship with the 2nd Defendant. It is true that I had a dispute over their land and which was determined by the 1st Defendant. Then we went to the District Officer. The dispute was not between me and JOHN ABOI. It was between me and the 1st Defendant.”** On her part, the 1st Defendant suggested that the dispute was infact between the Plaintiff and his brother **JOHN ABOI OPAMA (DW2)** over their respective shares of the 4 acres which they had purchased jointly. This is what the 1st Defendant has averred in paragraphs 12 and 13 of her replying affidavit dated 18th November 2021: **12: “That it is during the hearing that I learnt from the parents and family members of PHILIP OPOMA IMO and JOHN ABOI OPAMA that these two were biological brothers and further, that the two agreements I have entered into by PHILIP OPOMA IMO and the money paid for the purchase of land had been contributed by the two and the reason the two were both farming the land.”** **13: “That I also learnt that the two brothers had differed over the actual sharing of the four acres because each one of them was farming on the portion that were not equal even though in their agreement and understanding, each was entitled to two acres. The two brothers had in 2019 fought and PHILIP IMO OPAMA had threatened to kill JOHN ABOI OPAMA who had reported the matter to Adungosi Police Station.”** It is well settled that interruption of the adverse possessor’s occupation and possession of the land in dispute only occurs when the registered proprietor takes action to regain entry or sue the adverse possessor to assert his rights over the suit land. In the case of **MWANGI GITHU -V- LIVINSTONE NDEETE C.A. CIVIL APPEAL NO 24 of 1979 [1980 KECA 35 KLR],** the Court held that: **“Time ceases to run under the Limitation of Actions Act either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land; see Cheshire’s Modern Law of Reel Property, 11th edition p.894.”** 1. The 2nd Defendant obtained the title to the land parcel **NO SOUTH TESO/OSURETTE/4119** on 22nd July 2021. By that time, the Plaintiff had been in occupation and possession thereof for some 15 years. However, the 2nd Defendant did not assert his right in any way. Indeed even if the 2nd Defendant had tried to assert his right in 2021, it was already too late because by that time, that right had already been extinguished by effluxion of time. Since there was no dispute between the Plaintiff and the 2nd Defendant who is the registered proprietor of the land parcel **NO SOUTH TESO/OSURETTE/4119** andwhich is among the portions making up the suit land, I am persuaded that the Plaintiff has made a case for orders that he has acquired by way of adverse possession the 2.076 Acres (0.8 Ha) comprised in the said land. 2. On the submission that no surveyor was called **“to authenticate the size of land the applicant alleges to be in occupation,”** that was not necessary. The 2nd Defendant is the registered proprietor of the land parcel **NO SOUTH TESO/OSURETTE/4119.** The Plaintiff is claiming the whole land by way of adverse possession. The title deed to the said land confirms that it measures 2.076 Acres (0.8 Hectares). The evidence of the surveyor would only have been useful if the Plaintiff was claiming a portion of that land or if there was evidence that the said land does not infact measure 2.076 Hectares (0.8 Hectares) which is not the case. 3. Having considered the Plaintiff’s un-controverted evidence herein, I hereby determine the issues raised in the Originating Summons with regard to the land parcel **NO SOUTH TESO/OSURETTE/4119** in his favour as against the 2nd Defendant. 4. With regard to the land parcel **NO SOUTH TESO/OSURETTE/4118,** the Register shows that it also measures 0.8 Hectares (2.076 Acres). It is registered in the name of the 1st Defendant also being a resultant sub-division form the land parcel **NO SOUTH TESO/OSURETTE/3816.** 5. During the plenary hearing, the 1st Defendant said the following when cross-examined by **MR JUMBA** counsel for the Plaintiff on 14th November 2024: **“I had an agreement with the Plaintiff in 2001. He bought 2 acres. That is correct as per the agreement produced. Then we had another agreement with Plaintiff in 2006 and he bought 2 acres. The agreement of 2007 I do not know about it. It is true that the Plaintiff was using 4 acres from the time he bought it.”** That is a clear admission by the 1st Defendant that the Plaintiff is also entitled to the orders which he seeks in the Originating Summons with regard to **SOUTH TESO/OSURETTE/4118** as against her. The 1st Defendant having also conceded that she has relinquished her interest to the 0.8 Hectares (2.076 Acres) comprised in the land parcel **NO SOUTH TESO/OSURETTE/4118,** this Court must accordingly find in favour of the Plaintiff. 1. With regard to the Plaintiff’s claim against the 3rd Defendant, the same must be dismissed for the simple reason that the Court has already found that the Plaintiff only purchased 4 acres of land. If he is also occupying the 0.6 Hectares (1.483 Acres) comprised in the land parcel **NO SOUTH TESO/OSURETTE/4120,** then he is doing so through stealth. And as was held in **MTANA LEWA –V- KAHINDI NGALA C.A. CIVIL APPEAL NO 56** of **2014 [2015 eKLR]** one of the prerequisites to prove adverse possession is that the: **“… possession of the adverse possessor is neither by force or stealth nor under the license of the owner.”** Emphasis mine. See the cases of **ROBERT CHUME & OTHERS –V- SAMSON KAZUNGU KALAMA 2015 eKLR** and also the case of **GRACE WAIRIMU SORORA -V- CHAKA LED 2027 eKLR** where it was also emphasized that such possession must not be by force nor secrecy nor stealth. Doing something by stealth includes doing it secretly and without the owner’s consent. Given the fact that the 1st Defendant denied having sold an additional 1 acre out of the land parcel to the Plaintiff, it can only mean that his occupation of the said 1 acre which is in the name of the 3rd Defendant can only be through stealth and does not therefore meet the threshold to sustain a claim in adverse possession. 1. The Plaintiff’s claim against the 3rd Defendant is also for dismissal. 2. Ultimately therefore and having considered all the evidence herein, this Court makes the following disposal orders: 3. **The Plaintiff has acquired the land parcels NO SOUTH TESO/OSURETTE/4118 and 4119 by way of adverse possession.** 4. **The rights of the 1st Defendant and 2nd Defendant in the said parcels of land have been extinguished.** 5. **The 1st and 2nd Defendants shall within 30 days of delivery of this judgment surrender to the Land Registrar Busia the original title deeds for the land parcels NO SOUTH TESO/OSURETTE/4118 and 4119 for cancellation.** 6. **In default of (3) above, the Land Registrar Busia shall cancel the register of the land parcels NO SOUTH TESO/OSURETTE/4118 and 4119 in the names of the 1st and 2nd Defendants and register the same in the name of the Plaintiff.** 7. **The 1st and 2nd Defendants shall meet the Plaintiff’s costs of this suit.** 8. **The Plaintiff’s suit against the 3rd Defendant is dismissed with 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**