Singoei v Busienei & 5 others [2026] KEELC 5466 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT ELDORET ELC NO. 763 OF 2012 (OS) (FORMERLY ELD HCCC NO. 170 OF 2011 (OS)) JOHN ARUSEI SINGOEI…….…….………….…….……..……PLAINTIFF

VERSUS ELISHA KIPKORIR BUSIENEI…….…….……………...1ST DEFENDANT SIMON KIPKERING MUTAI…………………………… 2ND DEFENDANT

JOSEPH

KIPTABUT CHEMJOR……………………….. 3RD

DEFENDANT MICHAEL K. KIBENDO………………………………… 4TH DEFENDANT

MARY RUTO……………………………………………… 5TH

DEFENDANT RUTH NYAMBURA……………………………………… 6TH DEFENDANT

JUDGMENT Introduction 1. By an amended originating summons dated 31st August, 2020, the Plaintiff sought the following reliefs from the Defendants: 1) John Arusei Singoei be registered as the proprietor of land parcel number Eldoret Municipality Block 14/68 having acquired ownership and/or title thereto through adverse possession and that the registration of the 1st, 2nd and 6th Defendants as the proprietors of the suit land was illegal and fraudulent and the titles of the Defendants be declared as having been extinguished by operation of law.

2) A declaration that the 6th Defendant trespassed into the suit land and the Plaintiff is entitled to general damages for trespass.

3) The 6th Defendant do execute all the necessary documents to facilitate the registration of Eldoret Municipality Block 14/68 in the name of the Plaintiff within 30 days from the date of judgment free from any encumbrances. ELC NO. 763 OF 2012 1 | P a g e 4) In default of 3 above, the Deputy Registrar of this honourable court be at liberty to execute all the necessary documents on behalf of the 6th Defendant.

5) A permanent injunction be issued restraining the Defendants jointly and severally and either by themselves, their agents, servants and/or employees from trespassing, wasting, selling, alienating, subdividing, transferring and/or in any way deal with that parcel of land known as Eldoret Municipality Block 14/68.

6) The amended summons herein be served upon Elisha Kipkorir Busienei, Simon Kipkering Mutai, Joseph Kiptabut Chemjor, Michael Kibeindo, Mary Ruto and Paul Gicheru.

7) Costs of this originating summons be provided for. Background 2. The subject matter of this suit is a property known as Eldoret Municipality Block 14/68 measuring 0.2768 Ha (Suit Property). The suit property was registered in the names of Joseph Kiptabut Chemjor, Esiaha Kibendo and Mary Ruto (as administratrix of the estate of Salil Arap Ruto) as tenants in common in equal shares. The three were registered as tenants in common in equal share on 27th November, 1979. They were issued with certificate of lease on 26th November, 1984. Plaintiff’s Case 3. The Plaintiff’s case is that he purchased the suit property in 1987 from one of the partners at a consideration of Kshs.60,000/=. He applied for approvals of building plans from Municipal Council of Eldoret which approvals were granted. He moved into the suit property and constructed a servant quarter where he moved into one of the rooms and rented out the other rooms. In the year 2010 he approached the registered owners of the suit property who signed a transfer for him. When he took the transfer for registration, he ELC NO. 763 OF 2012 2 | P a g e discovered that the 1st and 2nd Defendants had been registered s owners of the suit property on 23rd February, 2011.

4. The Plaintiff filed a suit against the 1st and 5th Defendants. As the suit progressed in court, he discovered that the ownership of the suit property had changed from the 1st and 2nd Defendants to the 6th Defendant. The Plaintiff’s contention is that the registration of the suit property in the names of the 1st and 2nd Defendants and the subsequent transfer to the 6th Defendant was fraudulent.

5. He stated that Paul Nyang’ute Obiero who sold the suit property to the 1st and 2nd Defendants had purportedly purchased the same from one of the partners and that the signature appearing on the sale agreement was not that of the partner who is purported to have sold the land to the said Paul Nyang’ute Obiero. The said Obiero had never occupied the suit property.

6. He further stated that the 6th Defendant was acting for the 1st and 2nd Defendants and that he was aware that there were active investigations into the acquisition of the suit property by the Directorate of Criminal Investigations, yet he went ahead to purchase the suit property from the 1st and 2nd Defendants who had no good title to pass to him.

7. The Plaintiff stated that he made payment of the purchase price to the firm of A. G. N. Kamau advocate who was the lawyer of the registered proprietors. He stated that he was in possession of the suit property until his tenant was evicted in August, 2011.

8. The Plaintiff stated that he has been continuously in occupation of the suit property and that the title to the original owners had been extinguished and that the fraudulent title obtained by the 1st and 2nd Defendants which was transferred to the 6th Defendant cannot stand and should be transferred to him on account of adverse possession. ELC NO. 763 OF 2012 3 | P a g e The 1 st and 2 nd Defendants’ Case 9. The Defendants stated that as at the time the Plaintiff filed this suit, they were the registered owners of the suit property. Their names were entered in the register on 23rd February, 2011 and a certificate of lease issued to them on the same day. They stated that they purchased the suit property from Paul Nyang’ute Obiero on 30th October, 2009 at a consideration of Kshs.1,200,000/=. The said Obiero had purchased the land from Masai Kibendo Chemurgoi alias Esiaha Kibendo who was one of the registered owners of the suit property. 10.The Defendants further stated that upon Obiero selling the suit property to them, he requested the owners to make a direct transfer to them which they did. Paul Nyang’ute Obiero surrendered the original certificate of lease to them. They went to the Lands Office where they lodged the transfer and the suit property was transferred to them. They stated that they carried out a search which showed that the suit property was registered in the

name of three partners who are the ones who executed a transfer in their favour. 11.They further stated that the Plaintiff had made a complaint against them to the police. They were summoned and charged but upon further investigations they were found innocent and the office of the Director of Public Prosecutions recommended the withdrawal of the charges against them under Section 87 A of the Criminal Procedure Code. 12.The Defendants asked to be shown the documents upon which the Plaintiff made a complaint against them. One of the documents was a letter written by one Chepkochoi A. Murrey who purported to sell the suit property to the Plaintiff. They stated that the said Chepkochoi A. Murrey was not one of the owners of the suit property. They stated that the 4th Defendant who is the administrator of the estate of Esiaha Kibendo confirmed in an affidavit that his father had sold the suit property to them. ELC NO. 763 OF 2012 4 | P a g e 13.The Defendants entered into a sale agreement with the 6th Defendant on 3rd August, 2011 whereby they sold the land to him at a consideration of Kshs.2,800,000/=. They state that as at the time this suit was filed, they had already sold it to the 6th Defendant and that they have no claim against the 6th Defendant. 14.The Defendants further state that the Plaintiff has not met the threshold for grant of an order based on adverse possession.

They stated that the documents relied on by the Plaintiff relate to a different property and that some of his documents appear to have been altered by hand and that the Plaintiff is not in possession of the suit property as he stays at Burnt Forest in Uasin Gishu County. The 3 rd , 4 th and 5 th Defendants’ Case 15.Though the three Defendants filed affidavits in this case, they did not call any evidence or record any witness statements. It is only the 5th Defendant through his advocate who indicated that the 5th Defendant was going to rely on the affidavit filed in this case. The 6 th Defendant’s Case 16.As at the time of hearing of this case, the 6th Defendant had passed away and the administratrix of his estate who is his wife adopted the statement which he had recorded and filed. She stated that her husband purchased the suit property from the 1st and 2nd Defendants before this suit was filed. The deceased conducted a search before he purchased the suit property. He was unaware of any other claims over the suit property by any other individual. He denied any particulars of fraud attributed to him arguing that the originating summons did not disclose any cause of action against him. Parties Submissions 17.The parties were directed to file written submissions. The Plaintiff filed his submissions dated 2nd December, 2025. The 1st and 2nd Defendants filed their ELC NO. 763 OF

2012 5 | P a g e submissions dated 9th December, 2025. The 3rd and 4th Defendants did not file any submissions. The 5th Defendant filed her submissions dated 8th December, 2025. The 6th Defendant filed submissions dated 6th November, 2025. Plaintiff’s Submissions 18.The Plaintiff identified four issues for determination as follows: 1. Whether the Plaintiff has proved his claim of adverse possession over the suit land.

2. Whether the acquisition of registration of the suit land by the 1st and 2nd Defendants and subsequently to the 6th Defendant was legal and enforceable.

3. Whether the 6th Defendant was a bona fide purchaser for value without notice.

4. Whether the 6th Defendant trespassed on the suit land and caused destruction to property, lawfully belonging to the Plaintiff, thereby entitling the Plaintiff to general damages. 19.It was submitted that Chepkochoi Murrey who sold the suit property to the Plaintiff joined the partnership after the suit property had already been registered in the names of the three partners appearing on the initial title. 20.It was further submitted that upon payment of the entire purchase price, he obtained building approvals and constructed a servant quarter which he occupied briefly before moving out and letting it to Thomas Mahanga Osunga. After Thomas moved out he introduced his sister in law Selifah Khatioli (PW2) who stayed in the house until she was evicted in August, 2011. 21.The existence of the house put up by the Plaintiff was exhibited in the photographs taken by PW5 Fredric Simiyu Sirengo who produced the photographs. It was submitted that the Plaintiff had demonstrated occupancy ELC NO. 763 OF 2012 6 | P a g e of the suit property up until August 2011 when his tenant was unlawfully evicted from the house on the land. 22.Reliance was placed on Section 38(1) of the Limitation of Actions Act which states as follows: “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. 23.The Plaintiff also relied on Section 7 of the Limitation of Actions Act which states as follows: “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person”. 24.The Plaintiff further relied on the case of Mtana Lewa –vs- Kahindi Ngala Mwagandi (2015) eKLR where it was held as follows: “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, twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites are that the possession of the adverse possessor is neither by force, stealth, nor under the licence of the owner. It must be adequate in continuity, publicity, and extent to show that possession is adverse to the title owner”. ELC NO. 763 OF 2012 7 | P a g e 25.Further reliance was placed on the case of Wilson Kazungu Katana & 101 Others

–vs- Salim Abdalla Bakshwein & Another 2015 eKLR where it was held as follows: “First, the parcel of land must be registered in the name of person other than the Applicant; the Applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner: lastly, he must have been in that occupation for a period in excess of twelve years, having dispossessed the owner or there having been discontinuance of possession by the owner”. 26.On when time for purposes of adverse possession begun to run, it was submitted that time began to run on 4th June, 1987 and by 4th June, 1999, the twelve year period had lapsed. Reliance was placed on the case of James Kikechi –vs- Septstiano Wafula & Davind Mwecher Chogwony (2020) KEELC 2418 (KLR) where it was held as follows: “As I have already found above, the Plaintiff’s entry into the suit land was by way of a purchase in 1968 which is not really in dispute. There are contrasting views as to when time for purposes of adverse possession begins to run in favour of a purchaser. In Wambugu –v- Njuguna 1983 KLR 172, the Court took the view that wehre the Claimant is a purchaser under a contract of sale, the possession only becomes adverse when the contract is repudiated. In Samuel Miki Waweru –vs- Jane Njeri Richu C. A. Civil Appeal No. 122 of 2001, the court held that where a transaction for sale of land

is frustrated for lack of consent by the Land Control Board, time starts to run on the day the Claimant is put in possession of the land. A similar view was taken in Peter Mbiri Michuki –vs- Samuel Mugo Michuki C. A. Civil Appeal No. 22 of 2013 (2014) eKLR where the judges held as follows: “On our part, we are of the view that there are four alternative timelines that could be used to compute when time begins to run for ELC NO. 763 OF 2012 8 | P a g e purposes of the Plaintiff’s claim for adverse possession. These are 1964, 1970, 1971 or 1978. The year 1964 is the year of the sale agreement between the parties an in this year, the Plaintiff took possession of the suit property”. I would follow this latter view bearing in mind that in Mwangi & Another –vs- Mwangi 1986 KLR 328, the Court stated that the rights of a person in possession or occupation of land are equitable rights which are binding on the land. In the circumstances of this case, there is nothing to suggest that the agreement between the Plaintiff and the deceased dated 13th October, 1968 was ever repudiated. It is also now common ground that the Plaintiff took possession of the 14.8 acres on the date of that agreement and therefore, for the purposes of adverse possession, time started to run in 1968. There is also evidence that the deceased was not buried on the suit land but had moved to Saboti where he was buried.

This was confirmed by his wife Antonina Namalwa Kutukhulu (DW4) during cross – examination by Mr. Nyamu. This is confirmation therefore that the deceased, having sold the suit land to the Plaintiff, was dispossessed of the same and moved elsewhere”. 27.On the second issue it was submitted that the 1st and 2nd Defendants’ title was obtained fraudulently and its transfer to the 6th Defendant cannot be enforced. It was submitted that purchase by Paul Obiero from Masai Kipendo took place in 1999, the same year when Masai Kipendo died. There was no attempt to take possession until August, 2011. It was submitted that Masai Kipendo died on 4th October, 1999. 28.It was submitted that Paul Obiero had no title to pass to the 1st and 2nd Defendants. The transfer were only signed by two of the partners. Transfer registration and issuance took place on the same date that is 23rd February, 2011. ELC NO. 763 OF 2012 9 | P a g e 29.It was further submitted that Joseph Chemjor and Mary Ruto in their affidavits stated that the 1st and 2nd Defendants duped them into signing transfer in their favour. 30.On the third issue, it was submitted that the 6th Defendant was not an innocent purchaser for value and that he was part of the scheme to acquire the suit property. It was further submitted that the 1st and 2nd Defendants did not disclose in their responses to the originating summons that ownership

of the suit property had changed to 6th Defendant who was acting for them in this suit. It was further submitted that the Plaintiff had reported the interference of the suit property as at April, 2011. The 6th Defendant was acting for the 1st and 2nd Defendants during investigations. 31.It was submitted that the wife of the deceased 6th Defendant appeared not to know about the suit property. It was submitted that this implies that the suit property is vacant. 32.The Plaintiff relied on the case of Sehmi & Another –vs- Tarabana Company Limited (2025) KESC 21 (KLR), Torino Enterprises Limited –vs- Attorney General and Katende –vs- Haridas & Co. Limited (2008) EA 174 all which stipulated the conditions which qualify one to be an innocent purchaser for value. 33.On the fourth issue, it was submitted that the 6th Defendant had trespassed on to the suit property. Reliance was placed on Section 3(1) of the Trespass Act Cap 294 which states as follows: 34.The Plaintiff relied on the cases of Matu –vs- Karuri (2025) KEELC 6854 (KLR), Muncipal Council of Eldoret –vs- Titus Gatitut Njau (2020) and Thomas Ngaracu Ngugi & 5 Others –vs- John Wilfred Wanyoike & 6 Others (2020) eKLR. The 1 st and 2 nd Defendants’ Submissions 35.The Defendants submitted that the Plaintiff’s claim has not legs to stand on. It was submitted that the Applicant chose to fight his claim on two fronts; by ELC NO. 763

OF 2012 10 | P a g e way of purchase and by way of adverse possession. It was also submitted that the Plaintiff purchased the suit property from Chepkochoi A. Murrey who had no proprietary interest in the land. It was submitted that the Plaintiff’s entry was therefore with permission of the said Chepkochoi A. Murrey. It was submitted that whether the said entry into the suit property was lawful or authorized is immaterial. 36.It was further submitted that the concept of purchase and adverse possession cannot co-exist. One has to opt to pursue one of the two but not pursue the two at the same time. It was finally submitted that a person seeking to be registered as owner of land which has a known owner by way of adverse possession, he must first acknowledge the title before he can proceed to meet the requirements for one to be registered as owner by way of adverse possession. 37.The Defendants relied on the case of Kuria Kiarie & 2 Others –vs- Sammy Magera (2018) KECA 467 (KLR), Richard Wefwafwa Songoi –vs- Ben Munyifwa Songoi (20220) KECA 942 (KLR), Independent Electoral and Boundaries Commission & Another –vs- Mule & 3 Others (2014) KECA 890 (KLR) and Nyaga –vs- Kavindu & Another (2024) KECA 1346 (KLR). The 5 th Defendant’s Submissions 38.It was submitted on behalf of the 5th Defendant that the Plaintiff has no cause of action against her. It was further submitted that she does

not have any claim against the Plaintiff and that that is why she signed transfer in favour of the Plaintiff. On the part of the 1st and 2nd Defendants, it was submitted that she was duped into signing a transfer in favour of them and that the mere fact that they obtained title, which they subsequently transferred to the 6th Defendant, the root of that title is questionable. Reliance was placed on the case of Kenya Anti-Corruption Commission –vs- Online Enterprises ELC NO. 763 OF 2012 11 | P a g e Limited & 4 others (2019) KEEL 4680 (KLR) where it was held as follows: “In order to determine the question whether the lease held by the 1st Defendant is valid, it must be demonstrated that it was properly acquired. It is not enough that one waves a lease or a certificate of lease and assert that he has good title by the mere possession of th lease or certificate of lease. Where there is contention that a lease or certificate of lease held by an individual was improperly acquired, then the holder thereof, must demonstrate, through evidence, that the lease or certificate of lease that he holds, was properly acquired. The acquisition of title cannot be construed only in the end result, the process of acquisition is material and important especially when there are doubts to the regarding the process”. The 6 th Defendant’s Submissions 39.The 6th Defendant identified three issues for

determination namely: i. Whether the 6th Defendant is a bona fide purchaser for value without notice; ii. Whether the 6th Defendant has trespassed on the suit property; and iii. Who is to bear the cost of this suit. 40.The 6th Defendant relied on the definition of “bonafide purchaser” as defined in Black’s Law Dictionary 8th Edition where it was defined as follows: “One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims acquires a good and indefeasible title”. ELC NO. 763 OF 2012 12 | P a g e 41.Reliance was also placed on the case of Njenga 7 3 Other –vs- Ndua & Another (2021) KECA 253 (KLR) which quoted the decision in Weston Gitonga & 10 Others –vs- Peter Rugu Gikanga & Another (2007) eKLR where it was held as follows: “….it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that – (a) He holds a certificate of title (b) He purchased the property in good faith (c) He had no knowledge of the fraud (d) He purchased for valuable

consideration (e) The vendors had apparent valid title (f) He purchased without notice of any fraud (g) He was not party to any fraud”. 42.The 6th Defendant also relied on the case of Dina Management Limited – vs- County Government of Mombasa (2023) KESC 30 (KLR) where it was held as follows: “for a court to establish the whether a party is a bona fide purchaser for value, the court must first establish the root of the title right from the first allotment. The court upheld the dicta in Samuel Kamere –vs- Lands Registrar, Kajiado, (Supra) and stated that:”… in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal titles, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquire a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property….”. 43.On the second issue, the 6th Defendant submitted that the evidence adduced showed that the late 6th Defendant lawfully purchased the suit property from the 1st and 2nd Defendants and took possession of the same. Reliance was ELC NO. 763 OF 2012 13 | P a g e placed on the case of Musau –vs- Mutata & Another KEELC 109 (KLR) where it was held as follows: “To succeed in an action for trespass, first, the onus is on the Plaintiff to prove on a balance of probabilities that (s)he is either the

bona fide owner or proprietor of the suit property or that (s)he is in or entitled to immediate possession of the suit property or both; and second, that the sued possession has intruded and/or occupied in the suit property without any justifiable cause”. Analysis and Determination 44.I have carefully considered the Plaintiff’s evidence as well as the evidence of the Defendants. I have also considered the submissions by the parties. The Plaintiff is seeking to be registered as owner of the suit property on the ground that he has acquired it by adverse possession. The only issue for determination is whether the Plaintiff has met the threshold for registration of the suit property on the basis of adverse possession. 45.There are a number of hurdles which one has to surmount before he can be registered as having acquired land of a known owner on account of adverse possession. These hurdles have been amplified in a number of decisions from the superior courts. 46.The doctrine of adverse possession is predicated on Section 7 of the Limitation of Actions Act. 47.Section 13(1) of the Act provides as follows: 1. A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not ELC NO. 763 OF 2012 14 | P a g e accrue unless and until some person takes adverse possession of the land.

2. Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.

3. For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with Section 12(3) of this Act, the land in reversion is taken to be adverse possession of the land. 48.In Peter Kamau Njau –vs- Emmanuel Charo Tinga (2016) eKLR, it was held as follows: “ A registered owner of land, may not, by the provisions of section 7 of the Limitation of Actions Act bring an action to recover land after the end of twelve years from the date on which the right of action accrued to him. At the expiration of that period the owner’s title will be extinguished by operation of the law. Section 38 of the Act permits the person in peaceful possession, without the land owner’s permission, for a continuous and uninterrupted period of 12 years, but who has also done acts on the land which are inconsistent with the registered owner’s enjoyment of the soil for the purpose for which he intended to use it, to apply to be registered as its owner.” 49.In Ndolo –vs- Kitutu & 8 Others (2022) KECA 1289 (KLR), the court held as follows: “ For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted use of the land. The physical fact of exclusive possession and the animus possidendi to hold as owner to the exclusion to the actual owner are important ELC NO. 763 OF 2012 15 | P a g e factors in a claim for

adverse possession. The principles stated in the above holding are also encapsulated in the local legislation referred to elsewhere in this judgment. The direct import of these two provisions is, firstly, that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued, which is the date of dispossession. Secondly, after the expiration of the said twelve years the title of the registered owner shall be extinguished. Thirdly, the person in adverse possession is entitled to a title by possession.” 50.In the case of Jandu –vs- Kirpal & Another (1975) EA 225 which quoted the case of Bejoy Chundra –vs- Kally Possono (1878) 4 Cal 327 at Pr 329, it was held as follows: “ By adverse possession I understand to be meant possession by a person holding the land on his own behalf, [or on behalf] of some person other than the true owner, the true owner having immediate possession. If by this adverse possession the statute is set running, and it continues to run for twelve years, then the title of the owner is extinguished and the person in possession becomes the owner.” 51.In Samuel Kihamba –vs- Mary Mbaisi (2015) EKLR it was held as follows: “ Strictly, for one to succeed in a claim for adverse possession, one must prove and demonstrate that he has occupied the land openly, that is, without

force, without secrecy, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land.” ELC NO. 763 OF 2012 16 | P a g e 52.In Wambugu –vs- Njuguna (1983) KLR 171, the following guiding principles were laid down: 1) The general principle is that until the contrary is proved possession in law follows the right to possess.

2) In order to acquire by the statute of limitation title to land which has a known owner, that 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 proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.

3) The limitation of Actions Act, in adverse possession contemplates two concepts, disposition and discontinuance of possession. The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or 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.

4) Where the claimant is in exclusive possession of the land with leave and licence of the appellant in pursuance to a valid sale or agreement, the possession becomes adverse and time begin to run at the time the licence is determined. Prior to the determination of the licence, the occupation is not adverse but with permission. The occupation can only be either with permission or adverse; the two concepts cannot co-exist.

5) The rule on permissive possession is that possession does not become adverse before the end of the period during which the possessor is permitted to occupy the land.

6) Adverse possession means that a person is in possession in whose favour time can run. ELC NO. 763 OF 2012 17 | P a g e 7) Where the claimant is a purchaser under a contract of sale of land, it would be unfair to allow time to rum in favour of the purchaser pending completion when it is clear that he was only allowed to continue to stay because of the pending purchase because had it not been for the pending purchase the vendors would have evicted him. The possession can only become adverse once the contract is repudiated.

8) Where a claimant pleads the right to land under an agreement and in the alternative seeks an order based on subsequent adverse possession, the rule is the claimant’s possession as deemed to have become adverse to that of the owner after the payment of the last installment of the purchase price. The claimant will succeed under adverse possession upon occupation of at least 12 years after such payment. 53.The Plaintiff testified that he purchased the suit property from Chepkochoi A. Murrey in January, 1987. Before he purchased the suit property, he carried out a search and found that the registered owners were Joseph Kiptabut Chemojor, Esiaha Kibendo and Mary Ruto. He further found out that the said Chepkochoi A. Murrey was a partner to the registered owners of the suit property. This fact was acknowledged by Joseph Kiptabut Chemojor and Mary Ruto in their affidavits which were sworn and are on record. 54.The Plaintiff who is also known as John Kimaiyo Kipsingo applied to Eldoret Municipal Council on 7th December, 1987 for building approvals. The building approvals were made on 7th June, 1988. The Plaintiff built a servant quarter on the suit property in 1988. He engaged the services of a mason who also testified as PW3 Solomon Tuwei Kogo. This witness confirmed that he is the one who constructed the servant quarter. 55.The Plaintiff occupied one room and rented out the other

rooms. He later moved out of the house and left a tenant. The Plaintiff called PW2 Selifa Khatioli who testified that she was a tenant of the Plaintiff. She took over ELC NO. 763 OF 2012 18 | P a g e from her in law Thomas Mahanga who had stayed in the house for 10 years. This witness stayed for two years until she was evicted from the house in August, 2011. 56.The Plaintiff reported the eviction the matter to the police. The Plaintiff called PW5 No. 236139 Inspector Fredrick Simiyu Sirengo a scenes of crime officer who went to the suit property on 24th August, 2011 and took photographs of a damaged house. The door had been removed. This corroborated the evidence of PW2 who was in the house when unknown people evicted her in early August, 2011. 57.In the case of Benjamin Kamau Mrima & Others –vs- Gladys Njeri CA No. 213 of 1996, it was held as follows: “The combined effect of the relevant provisions of Sections 7, 13, and 17 of the Laws of Kenya Actions Act, Chapter 22 of the Laws of Kenya is to extinguish the title of the proprietor of land in favour of an adverse possessor of the same at the expiry of 12 years of adverse possession of the land”. 58.In the same case the court held as follows: “....to prove that they have use this land which they claim as of right Nec vi, nec clam, nec precario (No force, no secrecy, no evasion). So the Applicant must show that the Respondent

had knowledge (or the means of knowing, actual or constructive) of the possession or occupation. The possession must be continuous. It must not be broken for any temporary purpose or by any endeavors to interrupt it or by any recurrent consideration”. 59.In the case of Samuel Miki Waweru –vs- Jane Njeri Richu (2007) eKLR, it was held as follows: “It is trite law that a claim for adverse possession cannot succeed if the person asserting the claim is in possession with permission of the owner or in pursuance of an agreement for sale or lease or otherwise.....” ELC NO. 763 OF 2012 19 | P a g e 60.In the instant case the Plaintiff entered the land based basis of on the sale by Chepkochoi A. Murrey. The seller was not the owner of the suit land. Therefore even if the registered owners swore affidavits confirming that he was their partner, the law does not recognize this. The law only recognizes the registered owners. The sale did not confer any interest in the land as it was null and void. A person who is not the owner of a property cannot grant the buyer permission to be on land which he did not have. 61.In the case of Waweru –vs- Nguthi (2025) KECA 1372 (KLR) it was held as follows: “We find with respect, that it was a misdirection for the learned judge to have considered that the step brother of the Respondent could have permitted the Appellant to occupy the land. It cannot be

a license or permission to use or occupy land if that license has been given by a person other than the owner of the land”. 62.It therefore follows that the entry of the Plaintiff into the suit land was not with permission or sale by the registered owners. The Plaintiff has given evidence to show that he was in occupation of the land as his own from January, 1987 when he entered into the illegal sale. He remained in occupation uninterrupted until his tenant was evicted in early August, 2011. The sale of the suit property by one of the partners on 10th March, 1999 did not interrupt the Plaintiff’s occupation as the said purchaser Paul Nyang’ute Obiero did not take possession. The said Obiero sold the suit property to the 1st and 2nd Defendants vide agreement of 30th October, 2009. These two did not enter into possession of the suit property. The 1st and 2nd Defendants processed and obtained title on 23rd February, 2011. This change of title did not affect the adverse possession of the Plaintiff. The same is true of the change of title to the 6th Defendant on 16th September, 2011 which did not affect the adverse possession by the Plaintiff. 63.It was submitted by the 1st and 2nd Defendants that the Plaintiff’s claim cannot succeed as he is attacking the title which the 1st and 2nd Defendants ELC NO. 763 OF 2012 20 | P a g e had which was transferred to the 6th Defendant. The

Plaintiff was not seeking adverse possession as against either the title which was held by the 1st and 2nd Defendants or the title held by the 6th Defendant. 64.The Plaintiff has sued the registered owners of the suit property as 3rd , 4th and 5th Defendants. He had acknowledged the title of the 3rd , 4th and 5th Defendants when he conducted a search way back in 1987. The registered owners in fact had renounced their ownership of the suit property and that is why all the three registered owners signed a transfer in favour of the Plaintiff but which transfer could not be registered as the title had already changed to the 1st and 2nd Defendants who in turn transferred the same to the 6th Defendant. Disposition 65.From the above analysis, I find that the Plaintiff has proved his case on a balance of probabilities. I allow the Plaintiff’s claim in the following terms: 1. John Arusei Sing’oei be registered as the proprietor of Land Parcel Number Eldoret Municipality Block 14/68 having acquired title thereto through adverse possession.

2. The legal representatives of 6th Defendant do execute all the necessary documents to facilitate the registration of Eldoret Municipality Block 14/68 in the name of John Arusei Sing’oei within 30 days from the date of judgment free from any encumbrances.

3. In default of 2 above, the Deputy Registrar of this honourable court be at liberty to execute all the necessary documents on behalf of the 6th Defendant’s legal representative.

4. A permanent injunction be issued restraining the Defendants jointly and severally either by themselves, their agents, servants and or employees from trespassing, wasting, selling alienating, ELC NO. 763 OF 2012 21 | P a g e subdividing, transferring and/or in any way deal with that parcel of land known as Eldoret Municipality Block 14/68.

5. The costs of the suit to be paid jointly and severally by the 1st, 2nd and6th Defendants. ...................................................... HON. E. O. OBAGA, FCIArb

JUDGE JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 17TH DAY OF SEPTEMBER, 2026. IN THE PRESENCE OF: Mr. Ogongo for 1st and 2nd Defendants. Ms. Kigen for 5th Defendant Mr. Sambu for Plaintiff Court assistants – Kilonzo and Musyoki ELC NO. 763 OF 2012 22 | P a g e