https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4640

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC CASE NO. 757 OF 2017** **MWITA TARURU…………………………………………….....PLAINTIFF** **VERSUS** **JOSEPH MARWA MUNIKO…………………………..1ST RESPONDENT** **WILLIAM OLE MATA MUKUT………………………2ND RESPONDENT** **JUDGEMENT** 1. By way of an Originating Summons dated 7th May 2014, the Plaintiff sought orders, inter alia, that he was entitled by way of adverse possession to the suit property No. **Bukira/Buisaboka/2989** measuring **0.0205** Ha which was registered in the name of the 2nd Defendant. The Supporting Affidavit, at paragraph 2 indicated that the land was 0.025 Ha and was bought in 1983. 2. The Originating Summons was purportedly amended vide a Further Amended Originating Summons dated 29th March 2023 which was filed or received in Court on 25th April 2023. Suffice it to say, to that effect there were purported two amendments of the Originating Summons, the regularity of which shall be discussed hereafter in this judgment. 3. The general facts that emerge from the pleadings and which form the crux of the claim is that Mwita Taruru (deceased) bought a portion of land in 1983 from the 1st Defendant who was the registered proprietor. He thereafter built a permanent shop building wherein, he alleged, he had been hosting tenants since that year 1983. The Plaintiff urged that the 1st Defendant later sub divided the property into two portions giving rise to Bukira/Buisaboka 2989 and 2990. He then sold Bukira/Buisaboka/2990 to Joanes Marwa Rogoro and left Bukira/Buisaboka/2989 in the Plaintiff’s possession. 4. Further, that in 2014, the 1st Defendant sold the parcel No. Bukira/Buisaboka/2989 to the 2nd Defendant in disregard of the fact that the Plaintiff was in physical possession of the land since 1983. Urging that the 1st Defendant had no rights or interest at the time of the transfer, the Plaintiff posited that the 1st Defendant had no title to transfer. Therefore, the transfer and registration of the suit land in the name of the 2nd Defendant was void *ab initio*. 5. The 1st Defendant filed a Replying Affidavit sworn on 5th June 2023. He denied the contents of the Summons therein. He deponed that the Plaintiff approached them to sell the land to him but failed to pay the purchase price. He then sought another purchaser who paid for it Kshs. 550,000/=. Further, that he sold the portion of land to the 2nd Defendant with the full knowledge of the Plaintiff. He urged the court to dismiss the suit as the Plaintiff’s claim was untenable. 6. The 2nd Defendant filed a Replying Affidavit sworn on 5th June 2023 wherein he deponed that he was the registered owner of parcel No. Bukira/Buisaboka/2989. He annexed a copy of the green card thereto as WOMM-1. He stated that he purchased the land on 19th May 2014 vide a sale agreement of the same date at a consideration of Kshs. 550,000/=. He denied knowledge of the Plaintiff’s ownership. He averred further that the 1st Defendant had a valid title a fact which he established upon conducting an official search. As such he was a *bona fide* purchaser of the land for value. He deponed further that earlier the 1st Defendant agreed to let the Plaintiff’s father renovate the premises and collect rent as refund of the expenses incurred until full payment thereon. He annexed as WOMM-4 a copy of the said agreement dated 15th August 2001. 7. The matter then proceeded to full hearing with the Plaintiff calling three (3) witnesses whereas the Defendants called two (2). 8. **PW1** was **Mwita Sigiria Peter** who adopted his witness statement as evidence in chief. In it he stated that he was the administrator of the estate of the deceased Mwita Taruru who was the Plaintiff in the case before he died on 20th July 2018. He (PW1) had a Grant of Letters Ad Litem which authorized him to prosecute this case. 9. He added that he knew that in or about the year 1983 in the month of December one Mwita Taruru entered into an agreement with the 1st Defendant Joseph Marwa Muniko. The land his father bought measured 25 feet by 100 feet out of parcel number Bukira/Buisaboka/758. His father took possession of the plot and put up a permanent building shop on it. His family had been in occupation of the plot from then, and currently he (PW1) was the one receiving rent from Chacha Samaki and Swage Chacha. 10. Further, that he learned the 1st Defendant subdivided the parcel into two portions, namely, Nos. Bukira/2989 and 2990. Their shop remained on parcel number 2989. The Defendant had refused to take late father Mwita Taruru to the Land Control Board but nevertheless in Kehancha Civil Case No. 19 of 2008 the he (1st Defendant) was called as a witness and admitted to have sold to his father land measuring 25 feet by 100 feet. He confirmed the land had a permanent building on it. They (Plaintiffs) had been occupying the land since 1983. 11. On 19th May 2014 the 1st Defendant purported to sell the land to the 2nd Defendant. When he sold it, the Plaintiffs were in occupation of it for over 21 years hence they had acquired the parcel by adverse possession and there was no title was capable of being transferred because it had been extinguished by effluxion of time. 12. He testified orally that the suit related to land parcel No. 758 which was later subdivided into parcel Nos. 2990 and 2989. The suit parcel was purchased by his father and developed with a permanent structure. Further, that they have been in occupation for over forty (40) years. Also, that the 1st Defendant was the person who sold the land to his father. That he (1st Defendant) never sued or evicted them (supposedly the Plaintiff and father). 13. He produced the copies of the documents contained in the List of Documents dated 02/03/2022 filed on 3rd March 2022. It had the following documents listed thereon: 14. *Agreement dated 20th December 1983.* 15. *Green card for Bukira/Buisaboka/2989.* 16. *Mutation for parcel No. Bukira/Buisaboka/758.* 17. *Grant of Letters of Administration Ad Litem for Estate of Mwita Taruru.* 18. *Agreement dated 19th May 2014 between Joseph Maroa Muniko and William Ola Mata.* 19. *Search Certificate for parcel No. Bukira/Buisaboka/2989 in the mane of the 2nd Defendant.* 20. *Court proceedings of Kehancha case No. 19 of 2008.* 21. While the record is silent on whether the documents were produced in evidence, this Court considers, in the interest of justice, that since the Plaintiff sought to adopt them when he testified orally, they were produced as **PExhibits 1** – **7** respectively. This is because after that prayer to adopt (*sic*) the documents the learned judge trying the matter at the time proceeded, without noting it, to have the matter proceed for cross-examination. 22. During Cross-Examination, he stated that the 1st Defendant was the person who sold land parcel No. Bukira/Buisaboka/758 that which was later subdivided into parcel numbers Bukira/Buisaboka/2989 and Bukira/Buisaboka/2990. The land was purchased by his father in 1983. He (PW1) was born in 1973. He did not witness the sale agreement. That the sale done was done and an agreement signed, which he was shown by his father. He stated that he did not know the names on the Defendant’s agreement dated 15/8/2001. It was not the agreement that was signed by his father. 23. **PW2** was **Simion Chacha Nyawara** who stated that he was a tenant of a building owned by the Plaintiff and his father. He adopted as my testimony his written witness statement dated 2/3/2022. The statement was that he knew the deceased Mwita Taruru and his son Peter Sigiria Mwita. He also knew the plot number Bukira/ Buisaboka/2989 which had a permanent shop thereon, in Kehancha town. It belonged to Mwita Taruru since he became a tenant for the last 15 years. After the death of Mwita Taruru his son Peter Sigiria had been collecting rent from him. He denied knowing William Ole Mata or even Joseph Muniko. The the shop had been on the land for over 20 years. 24. He testified further that he had been their tenant for over 15 years. That the land parcel is Bukira/Buisaboka/2989. That the building was an old structure when he rented the premises. He knew the land belonged to the Plaintiff. 25. During cross-examination he stated that he rented the shop from Peter Sigiria whose father passed on in 2018. Further that he did not have a tenancy agreement or receipts to show that he paid rent. 26. **PW3** was **Moses Sangwe Chacha Mwita**. He adopted his written Witness Statement as his evidence in chief. In it he stated that he was a tenant of the Plaintiff. He added orally that he was a tenant on the suit land and had been paying rents to the Plaintiff’s son. 27. During Cross-Examination he stated that he had been a tenant since 2007. However, he had no receipt or tenancy agreement to produce in court. 28. That marked the close of the Plaintiff’s case. 29. **DW1** was **Joseph Marwa Miruka** who adopted his affidavit sworn on 28/11/2023, as evidence in chief. He deposed in it that he originally own parcel number Bukira/Buisaboka/758 under Registry Sheet Map No. 11. He subdivided it in the year 2005 into two parcels, namely, Nos. 2989 and 2990. He sold the two pieces of land to two persons. Parcel No. 2989, he sold it to William Ole Mata Makut and parcel number 2990 to Jones Marwa Rogoro. 30. He testified further, he never sold the land any land to Mwita Taruru during his lifetime. He only rented the house on the land to Mwita Taruru, and the time expired in 2012. He never sold any piece of land to Mwita Sigiria Peter but he was doing business therein. He added that Mwita Sigiria Peter should be evicted from the land of William Ole Mata Makut as he was the absolute owner of the parcel of land number 2989. The tenancy of Mwita Taruru ended in 2012 but he (Peter) has been using force to continue to using the premises illegally and without the consent of the owner. 31. He produced the documents in the List of Documents dated 18/3/2015 which he sought to rely upon. He produced a copy of Green Card for Bukira/Buisaboka/2989 and 758. He also produced a certificate of Official Search for Bukira/Buisaboka/2989 and a set of receipts from the land’s office. Further, he produced a letter dated 1/12/2012, a mutation form and the proceedings of Kehancha No. 19/2008. He produced the implementation of court order of case No. 19/2009. He produced the documents as D-EXhibit 1-7. 32. He denied selling land to the Plaintiff. He stated that the Plaintiff was his tenant. He was to renovate the house and repay himself from the rent due. The agreement was for the rent for six (6) years at a payment rate of Kshs. 2,500/=. That the agreement started in 2007 and ended in 2012. In 2012, he told him that he wanted to sell the plot. He gave the Plaintiff’s father thirty (30) days to buy it. But he did not buy it. Thus, he sold it to William Ole Mata, the 2nd Defendant. He stated that there is no adverse possession in this matter. 33. During Cross-Examination, he stated that he had an agreement of the tenancy to wit, D-Exhibit 8. He was shown proceedings of Kehancha case No. 19/2008 of which he stated that he testified therein as a witness. Further, that in the cross examination in that case, he stated that he sold a plot measuring 25 feet by 100 feet to the Plaintiff. He denied selling a plot of 50ft x 100ft. He added that there was an error (in the proceedings) as he did not sell a plot of 25 by 100. He built a structure on the Plot 2989. There was an error in the proceedings. 34. He stated that there is a permanent home on the land. The house was built by him in 2005. He then handed it over to Mwita Taruru. Further, that he sold the plot to William in 2014. He stated that from 1983 to 2014 was more than 12 years. He testified that in the case in Kehancha case the court ordered that a surveyor goes to the ground to survey the land of Marwa and the Plaintiff. The surveyor came to survey his land. He still denied that in the Kehancha case he stated that he sold the land to the disputants. 35. He stated in further cross-examination that he has never sued Mwita Taruru in any court over the fact that he had failed to pay rent. Further, that when he was selling the land to William Ole Mata there was a house was on the plot. Regarding the house he sold, he wrote only one agreement with Mata. He denied selling Mwita Taruru land. 36. He added that in 2012 a dispute arose between himself and the Plaintiff which was the time when the tenancy ended. He was the one collecting rent from 2007 to 2012. He prayed that the suit be allowed. 37. In response to questions by the court, he stated that he had not sued for an injunction and that the Plaintiff started residing on his land in 2001. He started building his own house in 2005 and completed in 2007. 38. **DW2** was **William Ole Mata**. He adopted his Replying Affidavit sworn on 05/06/2023 and the written statement dated the same date as evidence in chief. 39. The deposition in the Affidavit were that he was the legal registered owner of parcel number Bukira/Buisaboka/2989, having purchased it from the 1st Defendant on 19th of May 2014 at a consideration of Kenya Shillings 550,000/=. He took immediate possession of the parcel upon payment of the purchase price. At the time of the purchase price he was not aware of any agreement between the Plaintiff’s father and the 1st Defendant. The 1st Defendant had a valid title which he confirmed upon conducting an official search. He was not privy to any agreement whatsoever. 40. He obtained a consent to transfer, which he marked as annexture WOMM 3(a) and (b) which constituted both the application for the consent and the consent itself. After that the land was transferred to him. He conducted due diligence before purchasing the property. He did not have any prior knowledge of any other dealings on the land. He added that in any event the agreement of 15th August 2001 showed that the 1st Defendant agreed with the Plaintiff’s father for the latter to renovate the premises and collect rent for repayment of the expenses incurred, until payment in full. He attached a copy of the agreement WOMM 4. Further, that after collecting the repayment money in full then the Plaintiff’s father would cease collecting rent hence the Plaintiff could not claim ownership of the suit property while there was an agreement in place disputing that fact. 41. The Written Statement was that he was the registered owner of the parcel number Bukira/Buisaboka/2989. He bought it from the 1st Defendant sometime in the year 2014. At the time of purchase, he was not aware of fact that there was any agreement or sale between the Plaintiff and the 1st Defendant. The 1st Defendant had a valid title which, upon conducting an official search over it, it showed the parcel was duly registered in his name. He was not privy to any agreement whatsoever previously entered into between the Plaintiff and the 1st Defendant at the time of purchasing the property. Further, he obtained a land (control board) consent. The land was transferred to him by the 1st Defendant after he obtained the land board consent. 42. He added that the validity of the ownership of the land parcel cannot be challenged before this or any other court since he followed due process. He also conducted due diligence before purchasing the property. He added that the Plaintiff did not come to the Court with clean hands. If at all he had any claim it would be against the 1st Defendant. On his part, he stated, he was a *bona fide* purchaser without notice. He added that the application had been had been brought in bad faith. 43. He stated orally that he bought a house in Kehancha, on Plot No. 2989, that is, Bukira/Buisaboka/2989. He produced documents in his List of Documents dated 5/6/2023 in the Amended List of which were five (5) documents as 2 D-Exhibit 1-5. He also produced an agreement dated 15/8/2001. He stated that he bought land from the 1st Defendant and did due diligence during the purchase. 44. During Cross-Examination he stated that he went and found there was a house on the land with two people carrying out business in it. He did not talk to them. He paid Joseph the money for the house. That since 2014, he had gone to those people to ask for rent from them but they said the house was not of the 1st Defendant. Further, that he had sued those people to vacate vide was case No. 759 of 2017. 45. That closed the Defendants’ cases. **Plaintiff’s submissions** 1. Learned counsel for the Plaintiff filed submissions which this Court summarizes as hereunder. He urged that the Plaintiff had shown and proved that he had been in occupation of a portion of the suit land measuring 0.0205 Ha which was registered in the name of the 2nd Defendant. Further, that it had not been disputed that the Plaintiff had been in such occupation for a period exceeding 12 years. He urged that it is not disputed that his occupation of the said portion has been open and known by the Defendants. Additionally, that there is no evidence to suggest or illustrate that the Defendants have ever interrupted the said occupation in any manner until today. He urged the court to note that most if not all the witnesses confirmed the occupation of the Plaintiffs on the suit land. 2. Counsel maintained that the Plaintiff had proved on a balance of probabilities the ingredients of adverse possession to warrant him being awarded the land as required in terms of Order 37 Rule 7 of the Civil Procedure Rules. **Defendants’ submissions** 1. Counsel for the Defendants submitted that the 1st Defendant was the registered owner of the original title of land parcel No. Bukira/Buisaboka/758 as indicated in the Registry Sheet Map No. 11. Later on, in the year 2005 he sub-divided the said parcel of land into two which is Bukira/Buisaboka/2989 and Bukira/Buisaboka/2990. He sold to the 2nd Defendant Bukira/Buisaboka/2989 vide a sale agreement dated 19th May, 2014 at Kshs. 550,000/ = and successfully transferred it to his name. Before purchasing the said property, the 2nd Defendant conducted a search at land registry to ascertain ownership as part of due diligence and found the property was registered in the name of the 1st Defendant. They went ahead and did the transfer legally and the said parcel of land known as Bukira/Buisaboka/2989 was successfully transferred to the 2nd Defendant herein. 2. Counsel urged that the purported sale between the Plaintiff and the 1st Defendant did not exist as he was a Tenant with whom they had an agreement for him to do renovation on the already built structures and recover his money from rent that was being paid by tenants for a period of six (6) years which was to lapse in the year 2012. Later on, the Plaintiff in blatant violation of Defendant’s rights of ownership, use, quiet enjoyment and possession of the suit property and without any colour of right, forcefully and illegally refused to hand over the property to the 1st Defendant. 3. He urged that upon cross-examination PW-1 confirmed that he never witnessed the purported sale and there was not any sale agreement adduced in court to authenticate the said averments. Further, PW-1 indicated that the said Plot was purchased at Kshs. 12000/=, but he did not have anything to show that the said amount was paid towards the purchase of the disputed parcel of land. 4. He urged that PW2 and PW3 testified as tenants but had nothing to proof that they are tenants who had stayed in the said house for 15 years. Therefore, their testimonies were questionable and should be ignored. 5. On whether the Plaintiff was entitled to the suit property by way of adverse possession, Counsel restated the definition of adverse position as expressed by A. Makhandia JA in **Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR**. He urged that the other elements of adverse possession are summarized in the case of **Kasuve vs Mwaani Investments Ltd 8b 4 Others [2004] 1KLR 184**. He submitted that the threshold for a claim of adverse possession was laid out in the case of **Kimani Ruchine vs Swift Rutherford 8b Co Ltd [1980] KLR** that: ***“The Plaintiffs have to prove that they have used this land which they claim, as of right: nec vi, nec clam, nec precario ... The possession must be continuous. It must not be broken for any temporary purpose or by any endeavours to interrupt it or by any recurrent consideration.”*** 1. Counsel urged that the onus of adducing evidence in support of any claim advanced in a suit falls on the party making the claim, citing the case of **Hellen Wangari Wangechi Vs Carumera Muthini Gathua [2005] eKLR** in this regard. He cited Section 107 (1) and (2) of the Evidence Act and Sections 109 and 112 of the Evidence Act, urging that from the foregoing, the documents produced by the 1st Defendant as exhibits clearly demonstrated that the evidence on the suit parcel of land did not meet the threshold for which the Plaintiff would qualify for adverse possession. For instance, the green card that was adduced as an exhibit clearly shows that the parcel of land registered on 30th August, 2005 and title issued on 3rd May, 2007 to Joseph Marwa Muniko who is the 1st Defendant, and the period which the matter was brought before this Court was in the year 2014. Therefore, it did not meet the 12 years period in accordance with the provisions of Section 38 of the Limitations of Actions Act. 2. Consequently the 2nd Defendant was also registered on 27th February, 2014 and title was issued on 27th February, 2014. On the basis of the foregoing it was apparent that the rights of the Plaintiff had not crystallized for him to qualify for adverse possession. 3. he argued, further, that the Originating Summons were incurably defective for failure to annex an extract to title as a mandatorily required by **Order 37 Rule 7 (2)** of the Civil Procedure Rules. He cited the case of **Joseph Dennis Odondo v Meshack Juma Omollo & another [2019] eKLR** in this regard. 4. Counsel submitted that the Plaintiff had failed to produce very crucial exhibits to support his claim of adverse possession, so that the court could find and hold that he held the suit land for a period of not less than twelve (12) years prior to the filing of the instant suit. Without evidence, the Plaintiff’s pleadings and evidence were mere allegations, which allegations were not sufficient to prove this case to the required standard of balance of probabilities. 5. Counsel submitted that at all material times, the Defendants had been and were the legitimate proprietors and/or owners of the suit land. Pursuant to their registration, the Defendants became the legitimate proprietors and/or owners thereof. Consequently, they were bestowed with the lawful rights and interests thereon, to the exclusion of all and sundry, the Plaintiff not except. In view of the foregoing, the 2nd Defendant’s ownership rights could not be limited and/or circumscribed at the instance of the Plaintiff. He submitted that the 2nd Defendant was at liberty to appropriate and/or enjoy the suit land to the exclusion of all and sundry including the Plaintiff. 6. He urged the court to dismiss the Summons with costs. **Analysis and Determination** 1. This court has considered the Originating Summons, the responses thereto, the evidence adduced, the submissions of the parties and the law in respect of each aspect. It is of the view that the issues that arise for determination are; 2. **Whether the suit against the Defendants abated** 3. **Whether there is a valid amendment to the Originating Summons.** 4. **Whether 2nd Defendant was bona fide purchaser for value.** 5. **Whether the Plaintiff had acquired title to LR No. Bukira/Buisaboka 758 now Bukira/Buisaboka/2989 by way of adverse possession** 6. **Who to bear the costs of the suit** 7. This court will now determine the issues in sequence. 8. **Whether the suit against the Defendants abated** 9. The first issue for determination which is both procedural and substantive and goes to the root of the instant matter regards the validity of this Originating Summons. It is not in dispute that Mwita Taruru, who was the initial Plaintiff/Plaintiff, passed away in the course or during the pendency of the suit. From the annexture to the Notice of Motion dated 18th November 2019 filed in that behalf, it is shown that he died on 20th July 2018. Apparently, his advocate knew of the demise before the lapse of twelve months but not the exact date. This is because in the course of the proceedings, counsel indicated to the court that he had information that the Plaintiff had passed on. He did not inform the court when that happened or when the information reached him. But the record shows that learned counsel passed that information to the Court on 04th July 2019 when he prayed for time to file an Application for substitution. 10. Upon being informed, the Court set a mention date for the possibility substitution. It directed the matter to be mentioned before the Deputy Registrar on 30th October 2019. On the said date, counsel sought for time to file the application for substitution. Then vide a Notice of Motion dated 18th November 2019 and filed on 20th November 2019 he sought substitution of the Plaintiff with a “survivor” (*sic*). The Notice of Motion was not determined forthwith. 11. The matter proceeded with the determination of other interlocutory applications such as the application dated 07th May 2021 being heard. Counsel for the Plaintiff brought it to the attention of the court on 16th December 2021, that the Application was yet to be determined. The court then held that since the Application dated 18/11/2019 was unopposed, it was compromised and allowed. It directed that the Amended Plaint be served on both parties. 12. This is the first hurdle in determining this suit because by the time the application dated 18th November 2019 was filed, the suit had abated due to the death of Stephen Mwita Taruru. This Court holds that view because from 20th July 2018 when the then Plaintiff died to 20th July 2019 the suit there was no substitution of the deceased hence the suit automatically abated as by law provided. This is because, under **Order 24 Rule 7** of the **Civil Procedure Rules** it is provided as follows; **(1) Where one of two or more Plaintiffs dies and the cause of action does not survive or continue to the surviving Plaintiff or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased Plaintiff to be made a party and shall proceed with the suit.** **(2) Where within one year no application is made under sub rule (1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application of the Defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased Plaintiff:** **Provided the court may, for good reason on application, extend the time.** 1. Of the death of a Plaintiff, in **Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others [2015] eKLR**, the Court of Appeal set out the procedure to be followed after the death of a Plaintiff in three stages as follows: **“There are three stages according to these provisions. As a general rule the death of a Plaintiff does not cause the suit to abate if the cause of action survives. But within one year of the death of the Plaintiff or within such time as the court may in its discretion for “good reason” determine, an application must be made for the legal representative of the deceased Plaintiff to be made a party. The “good reason” therefore relates to application for extension of time to join the Plaintiff’s legal representative to the suit.** **Secondly, if no such application is made within one year or within the time extended by leave of the court, the suit shall abate. Where a suit abates no fresh suit can be brought on the same cause of action.** **Thirdly, the legal representative of the deceased Plaintiff may apply for the abated suit to be revived after satisfying the court he was prevented by “sufficient cause” from continuing with the suit. The effect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time, a legal consequence which flows from the omission to take the necessary steps within one year to implead the legal representative of the deceased Plaintiff.”** 1. It is clear, from the holding in the **SAID SWEILEM** case (supra) that abatement of a suit after the passage of one year upon the demise of a party in matters where the course of action survives him is an automatic occurrence that need not be noted down in the proceedings. One legal position that should be clear is that abatement of a suit is a fact predicated upon the passage of the time stipulated. It is not the noting of the same on the record that actualizes. It is the occurrence of an event: the lapse of one year after the death. The noting of the same on the record is only a matter of procedure whose step serves two purposes basically: to award the other party costs if need be and close the file. 2. In the instant suit, this Court finds, through actual computation of time, by the time the Application for substitution was filed, the Plaintiff had been deceased for one year and four months. Substitution was prayed for and no more. There was no application for the extension of time as the proviso to **Order 24 Rule 7(2)** provides. The fact that the record shows that other proceedings, including record of consents and hearing took place, does not cure the effect of abatement in this suit if no extension was made. 3. Further, it is possible that the Plaintiff made an assumption, though wrongly and which does not still cure the effect, that substitution of the deceased with the son or “survivor” or legal representative as he was, sufficed or was enough. It did not, because the proviso to **Order 24 Rule 3** of the Civil Procedure Rules is clear that where no substitution is made within a year, the Court has to extend time for it. Further, that under **Order 24 Rule 7(2)** of the **Rules** then where a suit has abated, the legal representative may apply for revival of the suit by giving and explaining a sufficient cause that prevented him from continuing the suit. A critical point then is that the life of a suit has to be extended upon abatement, for the suit to exist. 4. In this case, this did not happen after the abatement, that is to say, neither the application for extension of time nor one for revival of the suit were made. Therefore, the alleged compromise made on **18th July 2022** and recorded in court the same date, based on the application not being opposed was made in an already abated suit. It without more, that is to say, without revival of the suit, irregular and unprocedural. At that point in time, the claim had already abated hence further steps absent of extension and revival of the suit would be irregular and nullity basically. 5. Additionally, after the compromise the court directed that the Plaintiff serve the Amended originating summons on the Defendants. On several instances, the Defendants indicated to the court that they were yet to be served with the it. This state of affairs continued from 16th December 2021 to 6th December 2023 when the matter proceeded for hearing. That being said, even if the Amended Originating Summons had been filed and served, it would still be irregular as the suit had abated due to the death of the Plaintiff. This brings me to the second issue. 6. **Whether there is a valid amendment to the Originating Summons** 7. I have carefully perused the Court record. It shows that in the course of time, there were two purported amendments to the Originating Summons. The first one was by the filing of an amended Originating Summons, dated 23rd January 2020, supported by the Affidavit of Mwita Sigiria Peter sworn on even date. It was received in court on 13th February 2020. 8. The question that follows is whether the amendment was backed by the leave of Court. The reason why that is critical is that pleadings in this suit had closed way back in or about mid-June 2014 because the Defendants appointed M/S Sagwe & Co. Advocates who filed their Notice of Appointment dated 28th May 2014 and a Replying Affidavit sworn by Joseph Marwa Muniko on the same date. That was when by the parties’ filing of pleadings closure of pleadings ended because soon afterwards, they embarked on taking pretrial directions. For instance, on 17th May 2016 the Defendants filed Agreed Issues and a Pretrial Questionnaire both dated 08th October 2015. 9. What followed, which would have led to an amendment being made was the filing of an application dated 18th November 2019. It sought amendment of the Plaint to substitute a “deceased Plaintiff with a survivor” (*sic*). It was filed on 20th November 2019. Thereafter, the matter was mentioned before the Deputy Registrar on 21/11/2019 when it was given another mention before him on 26/11/2019 and then dates taken in the registry on 10/12/2019 and 04/11/2020 before being placed before the Judge on 29/09/2021 for the hearing of an application dated 07th May 2021. 10. Clearly, the date the amendment of the Originating Summons was purported to be made lay between the period the court record covers and no leave was sought and granted any time in between the same to amend the pleadings. 11. Of amendments, **Order 8 Rule 3** of the **Civil Procedure Rules** provides for amendment of pleadingly with leave of the court. In particular, **Order 8 Rule 3(1)** provides that “***Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.***” 12. Therefore, regarding cases where, under Order 24 Rules 3, 4, 5 and 6 a party has died and no substitution is made within a year or the determination of a legal representative made, or bankruptcy of the Plaintiff respectively, the provision cited above on amendment of pleadings renders it that before an amendment is made with the leave of court those requirements imposed by the four Rules singled out must be observed or satisfied first or as a condition precedent. 13. In the instant suit, regarding the purported first amendment, and even the second one discussed below, two steps fell short of the legal requirements. First, no extension of time to have the suit still to be deemed to have not abated, and to substitute the deceased or revive his suit was made. Second, no leave of court was sought and granted before the amendment could be effected, and even served. It means that the amendment was unprocedural, now allowed and therefore nullity. 14. About the second purported amendment, the record shows that it was made on 25th April 2023. The amendment introduced a wide range of facts pleaded in the Amended Originating Summons. This was in addition to the substitution of the deceased’s name. Curiously, it does not indicate the provisions or the court order pursuant to which it was made. This leads the court to examine the record once more and find out if the same is supported by an order of the Court. 15. Following the filing of the application dated 07th May 2021, it was heard and finally determined vide a ruling delivered on 22/02/2022. It was dismissed. Then the matter was mentioned in between that time and 18th July 2022 when the application 18th November 2019 was compromised before the learned judge as follows: *“The notice of motion dated 18/11/2019 is compromised and the same is allowed on account of the 1st Defendant has opposed the same. I directed that the amended plaint be served on the Defendants and since both parties have complied. I direct that the matter proceeds for hearing on 5/10/2022.”* 1. The question outstanding then is, what amendment was permitted by the Court. It was the substitution of the deceased with the “survivor” and no more. This is because that was the person who was sought to be introduced by way of substitution through the application that was compromised. One thing should be clear to all parties that once leave of court is granted for amendment of pleadings, it is only limited to the amendment sought or specified in the application to court. It cannot exceed those specifications because that would be extra-legal hence a nullity. 2. It follows then as it appears from the record that no amendment of the Originating Summons was done in terms of the compromised application, and in the stipulated time. Further, no extension of time to file the amended Originating Summons was made. That was the situation all the way from 18th July 2022 until the purported amendment dated 29th March 2023 and filed on 25th April 2023 was made. 3. In the premises, the second (purported) amendment was not backed by any legal provision or order of the court. It therefore was a nullity. It also follows that the only regular pleading is the initial Originating Summons dated 7th May 2014 and given that the Plaintiff passed away and was not substituted, the consequence is that the suit fails in its entirety as it had abated against the Defendants. The provisions of Order 24 Rule 3 of the Civil Procedure Rules 2010 are mandatory. Therefore, abatement cannot be considered to be discretionary. Similarly, it does not require a formal declaration for it to take effect. The lapse of the statutory period without substitution results in abatement occurring by operation of law. 4. **Whether 2nd Defendant was bona fide purchaser for value.** 5. The other issue that the 2nd Defendant submitted on was that he was unaware of any prior sale or dealings between the Plaintiff and the 1st Defendant. He contended that he was therefore an innocent purchaser for value. He added that the issue of ownership by the Plaintiff was only raised when he asked the tenants to pay him rent but they refused, claiming that it was the deceased father of the Plaintiff who was the owner. 6. Of an innocent purchaser for value, the Supreme Court in **Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR)**, held that such a purchaser is the buyer who exercises due diligence, which includes, but is not limited to, carrying out an inspection of the suit property. It defined that person as follows; ***“An innocent purchaser for value would also denote one was aware of what they were purchasing by inspecting the suit premises. This takes us to the question of whether the appellant had visited the suit premises and if so, what was its impression of the military installations on the suit premises? The fact that the suit land was occupied must have sounded a warning of “buyer be aware” to the appellant. We therefore find that it was not an innocent purchaser for value entitled to orders for restoration or compensation” [Emphasis added].*** 1. Further, the **Sehmi** case (infra) reiterates that “***It is worth emphasizing that the innocent purchaser doctrine only protects the purchaser against those basing their claims upon an equitable interest in the suit land***.” 1. Similarly, in the case of **Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment)** the Supreme Court restated the principle of an innocent purchaser for value as follows: ***“58. It is a fundamental principle of the law of property in land that a purchase of a legal estate for value without notice is an absolute, unqualified and unanswerable defence against the claims of any prior equitable owner or encumbrancer. The onus of proof however lies upon the person claiming to be a bona fide purchaser. Three main ingredients must be present for a claimant to mount a successful defence based on the doctrine. These are, innocence, purchase for value, and a legal estate.*** ***59. The element of innocence means that the purchaser must act in good faith. His conduct must not raise any doubt as to whether indeed, he did not have any notice or knowledge as to the existence of a rival interest in the suit land. If for example, it comes to light that during the process of purchase, the claimant engaged in conduct that was unconscionable in the eyes of equity, such conduct would weaken his claim of innocence as to the existence of a rival interest. The element of innocence also connotes the exercise of diligence expected of any reasonable purchaser. The claimant must demonstrate that he acted diligently and conducted a reasonable inquiry into the status of the estate or land that he sought to purchase.”*** 1. In the instant case, the 2nd Defendant filed a Replying Affidavit whose depositions he adopted as evidence in which he denied knowledge of the Plaintiff’s ownership. He added in it that he conducted an official search which confirmed that the 1st Defendant had a valid title, and the said party gave him a copy of the agreement dated 15th August 2001 which he marked as annexture WOMM-4 by which it was agreed to let the Plaintiff’s father renovate the premises and collect rent as refund of the expenses incurred until full payment thereon. When he went to ask for the tenants to pay him rent was when they informed him that according to them the house belonged to the Plaintiff. He stated orally in court that as such he was a *bona fide* purchaser for value. In his testimony he stated that he conducted due diligence before purchasing the property. 2. I find that the 2nd Defendant did due diligence before buying the property and as such he was in innocent purchaser for value. This is because before he bought the suit parcel of land physically visited it, then he inquired from the 1st Defendant whose it was. The 1st Defendant informed him it was his. He conducted an official search and it confirmed it was his About the tenants in it, the Defendant confirmed to him that they were therein by virtue of the Agreement between him and the Plaintiff’s late father that he repairs the house and refunds himself of the expenses from collections of rent from tenants. Further, that 1st Defendant had wanted to sell it to the Plaintiff’s father the previous 30 days but he failed to buy it hence he was selling it. As I have stated elsewhere, the purported agreement of sale between the Plaintiff’s father and 1st Defendant was not an agreement properly so called hence it could not be used to controvert this claim of innocent purchaser for value. On his part the 2nd Defendant showed evidence that upon being satisfied with the proprietorship of the property he paid for it and was taken through the due process of transfer of he same into his name. 3. **Whether the Plaintiff has acquired title to LR No. Bukira/Buisaboka 758 now Bukira/Buisaboka/2989 by way of adverse possession** 4. The findings on the two issues above notwithstanding, it is necessary, in the event that this Court were wrong on them, although not, in order to serve still deliver the wider interests of justice, to discuss the issue of adverse possession as raised in the initial claim. Adverse Possession is governed by **Limitation of Actions Act**. *Section 7* of the Act places a bar on actions to recover land after 12 years from the date on which the right accrued 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.”** 1. Further Section 13 of the same Act, provides that adverse possession is the exception to this limitation: 2. **A right of action to recover land does not 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 Section 9, 10, 11, and 12 a right of action to recover land accrues on a certain date and no person is in adverse on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.** 3. **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.** 4. **For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with Section 12(3), the land in reversion is taken to be adverse possession of the land”.** 5. Section 17 thereof goes on to provide as follows: “**Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished”.** 1. Finally, Section 38(1) and (2) states that: “**(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.** **(2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.** 1. The doctrine of adverse possession was aptly defined in **Mtana Lewa vs Kahindi Ngala Mwangandi (2015) eKLR** where the Court of Appeal 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 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 of stealth not under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”** 1. From the principles, in order to establish a claim of adverse possession the possession must be. 2. **Adverse to the interests of the owner – meaning that the claimant is in possession as owner in contradistinction to holding in recognition of or subordination to the true owner or to a recognized superior claim of another;** 3. **Actual - as opposed to constructive possession where the test is the degree of the actual use and enjoyment of the parcel of land involved by the claimant or his agent, tenant or licensee;** 4. **Open and notorious - meaning that the possession must be open and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner’s rights are being invaded. Differently put, the possession must be manifest to the community;** 5. **Without force - meaning that the possession and occupation must have been achieved peaceably not through actual or threatened violence;** 6. **Exclusive - meaning that the possession must be of such exclusive character that it will operate as an ouster of the owner of the legal title. Differently put, the claimant must demonstrate that she wholly excluded the owner from possession for the required period;** 7. **Continuous and uninterrupted for the period of twelve years - meaning that the title owner did not re-enter the property under circumstances showing her intention to assert dominion against the adverse user for at least twelve years.** **See Joseph Ndafu Njurukani & 2 Others vs. Emily Naliaka Barasa, Kisumu Civil Appeal No. 149 of 2022; Titus Mutuku Kasuve (Supra); Titus Kigoro Munyi (Supra); Wambugu vs. Njuguna (supra) and Karuntimi Raiji (supra).** 1. In the instant case, the Plaintiff claimed that he purchased part of LR No. Bukira/Buisaboka/758 vide a sale agreement dated 20th December 1983 which was filed among the list of his documents. The 1st Defendant submitted that the title in issue came into existence on 30th August, 2005 and title issued on 3rd May, 2007 hence the twelve year period claimed by the Plaintiff has not crystalized from that time to the time of institution of suit. The Plaintiff argued that the period started running from 1983 hence the period had elapsed. 2. Regarding the contention above, this Court finds that if the Plaintiff’s evidence which will be analysed below will be found to have proved that he occupied the suit land from 1983, then the subdivision of the original parcel No. 758 and issuance of a new title to the remainder of the portion that he (PW1’s) father occupied and its registration in the name of a different individual or owner would not defeat or break the twelve year period requisite for adverse possession to be effective. The issue in such cases is continuous, open, nonpermissive occupation of the owner’s land. The ownership in issue begins with the proprietor was registered as such (except government or a public body) at the time the adverse possessor took occupation and runs into the ownership of the new owner to whom the subsequent transfer bestows ownership. Adverse possession runs with the title and not transfer. 3. Again, the Defendant submitted that the suit was defective and could therefore not stand because the Plaintiff failed to produce the extract of title as required under Order 37 Rule 7 of the Civil Procedure Rules, 2010. 4. It is trite law that in any claim for adverse possession, the claimant is required to annex a copy of the certificate of title, which is necessary in identifying the owner of the property being claimed. **Order 37 Rule 7** of the Civil Procedure Rules provides that:- 5. **An application under section 38 of the Limitation of Actions Act (Cap. 22) shall be made by originating summons.** 6. **The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.** 7. **The court shall direct on whom and in what manner the summons shall be served.”** 8. In the case of **Abdirashid Adan Hassan v The Estate of W H E Edgley [2022] eKLR** the court held that: **“… the effect under Section 17 of the Limitation of Actions Act would be to extinguish the title, therefore there is need for reference or production of a copy of a title. A claim for adverse possession must be brought against the registered proprietor since it seeks a declaration that the proprietor’s title has been extinguished by prescription. It follows therefore that the proceedings must be in respect of the correct parcel of land and whose ownership is verified by an annexed extract of title in terms of Order 37 rule 7 of the Civil Procedure Rules. In the instant case, the Applicant only adduced a deed plan as Applicant’s Exhibit 2 which is inconclusive proof of ownership of the property. In determining the issue of adverse possession, this Court cannot extinguish an ‘non-existence and unknown title.”** 1. Further, in the case of **Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] KECA 248 (KLR)**, the court held that: **“A claim of adverse possession can only be maintained against a registered owner.”** 1. In my considered view, this is a clear point and requirement of the law under Order 37 Rule 7(2) that at the time of filing an Originating Summons a certified extract of title be annexed to the affidavit supporting the originating summons. This provision is couched in mandatory terms as has been observed in various decisions (see ***Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another, Malindi civil appeal no. 11 of 2014*** *and* ***Sarah Kimani v john Wanyoike Gerald, ELC case no. 791 of 2023 (OS*)** and ***Teresa Wachuka Gachira v Joseph Mwangi Gachira, Civil Appeal no. 325 of 2003).*** 2. Therefore, in **Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another** (*supra*), the Court of Appeal held that: *The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession. This was so stated by this Court in the case of Githu v Ndele [1984] KLR 776. The appellants did not discharge the burden of proving and specifically identifying or even describing the portions, sizes and locations of those in their respective possession from the larger suit premises that they sought to have decreed to them. It is exactly for this reason, perhaps that there was a mandatory requirement under the old Civil Procedure Act and the rules made thereunder that when taking out and O. S. anchored on adverse possession that an extract of the title to the subject land be annexed to the application.* 1. In **Sarah Kimani v John Wanyoike Gerald (supra)**, the court determined that: *The purpose of annexing an extract of the title is to ascertain who the title holder is, and when the title holder acquired rights over the said land. It provides a means to the court to ascertain the existence and proprietorship of the suit land. See Symon Gatutu & 587 others v E.A. Portland Cement (2011) eKLR. It is therefore not a technicality as submitted by the Plaintiff, but a mandatory requirement in a claim of adverse possession (emphasis added).* 1. Having ascertained that the purpose of the certified copy of the extract of title is to confirm the ownership of the land, the question this court should answer next is whether an official search would suffice, in the place of an extract of title. This question was addressed by the Court of Appeal in **Johnson Kinyua v Simon Gitura Rumuri, Civil Appeal no. 265 of 2005**. The court held that: *On our part, we have weighed the submissions made on behalf of the parties. Concerning the effect of failure to annex an extract of title we are of the view that nothing turns on this as the disputed land is registered under the Registered Land Act and a search certificate under the Registered Land Act duly signed by the Registrar constitutes evidence of the entries set out in the certificate. Thus section 36(2) of the Registered Land Act provides:* *“Any person may require an official search in respect of any parcel, and shall be entitled to receive particulars of the subsisting entries in the register relating thereto and certified copies of any documents or of the registry map or of any plan filed in the registry.”* *Concerning the same point section 37(2) of the Registered Land Act states:* *“Every document purporting to be signed by a Registrar shall, in all proceedings be presumed to have been so signed until the contrary is proved.”* *In our view reference to certified extracts in Order 37 refers to titles under the other systems of land registration and not to Registered Land Act type of registration. Under the latter system of registration, we think a search certificate meets the requirements of the relevant law.* 1. In the present case the Plaintiff produced not only an extract of title to the suit land as PExh 2 but also a certificate of official search as PExh 6 respectively. The certificate of search was duly signed by the Land Registrar. Thus, even if he could have produced only the Certificate of Official Search it would have suffice since it would have demonstrated who the registered owner is. 2. The above findings now turn this Court to the analysis of the evidence and the law as to whether the Plaintiff acquired the suit parcel as provided for by the law on limitation of actions, or nonrecovery of land or adverse possession. 3. In the present case, although the Plaintiff claimed that the size of the parcel he bought was approximately 0.0205 Ha, I note and find that the agreement (PExh 1) he relied on, which I will explain my finding later on below at **paragraphs 112** all the way to **paragraph 117** that it was a unilaterally signed document (no signed by the 1st Defendant), did not indicate with certainty the portion of the land that he claims he purchased. It referred to measurements by feet (“ft”) in our figure while the real portion was “are/ hectares”, and the buyer was buying “part/whole” of the land. 4. Furthermore, there was also no survey report produced by the claimant to determine or show the specific size, location and portion of land that the Plaintiff claimed to have acquired by way of adverse possession. This is because his own evidence was that land parcel No. 758 did not exist but parcel No. 2989 and 2990 existed. Of these, there was clear evidence from the Plaintiff himself, though PExh 7 that he was at one time he was sued by the owner of parcel No. 2990 in Kehancha court over trespass and eviction. 5. Again, of crucial importance is that the Plaintiff gave evidence, through PExh 1 that he bought part of parcel number Bukira/Buisaboka/758. Since the two parcel numbers 2989 and 2990 did not exist as at the time the Plaintiff alleges to have bought the part of No. 758, other than guesswork, how did he determine absent of a survey report that the portion that portion he claimed was parcel No. 2989 and not 2990 or part of both? In his own documentary evidence, PExh 7, the trial court in the previous suit in Kehancha Court between the Plaintiff and the alleged nieghbour who claimed encroachment onto his parcel No. 2990 found that it was not possible to determine the extent of occupation without a surveyor visiting the two parcels of land in issue then. There is no indication as to whether the other parcel of land was 2989, and if the survey was ever done. What if the Defendant’s land by way of occupation then was another adjacent one with a different registration number? 6. This Court cannot vouch for a finding that the Plaintiff occupied, if any, parcel No. Bukira/Buisaboka/2989 at the time, and if it was later he moved to parcel No. 2989. This is because even from the Plaintiff’s own witness, PW2 and PW3 then became the plaintiff’s tenants from 15 years previous to the time of their testimonies. This lends credence to the 1st Defendant’s claim that he invited the Plaintiff’s father to repair his (1st Defendant’s) house on parcel No. 2989 from 2007 and granted him permission by way of an agreement to recover his expenses from the rent he received from the tenants. By payment of rent to the Plaintiff’s father or he himself it did not make him the owner of the parcel of land where the house they rented stood as PW2 and PW3 testified: it depended on the terms between the owner and him regarding occupation and use of the house. 7. Again, even if he occupied the suit parcel of land from 1983, which is not he correct position because there was no evidence on that, the occupation was by the permission of the owner. That cannot found or form the basis of a claim for adverse possession because the entry was permissive rather than hostile or contrary to the will of the owner. This is the finding of the court because, there was no evidence by the plaintiff that the property was developed in 1983. Rather, the DW2 the 1st Defendant testified that he developed the property between 2005 and 2007 and then put the Plaintiff’s father (now deceased) into possession for a period of six years. Thus even if entry would have been hostile, which this court has not found, it could have started running from 2007 which period is less than 12 years as to form the basis of a claim for adverse possession. 8. Moreover, of the claim that the Plaintiff’s father bought the suit land hence he adversely acquired it, PW 1 testified on 06th December 2023 when he adopted his written statement. In the statement he stated that the size of the land his deceased father bought was 25 ft by 100 ft. His evidence on this fact, absent of valid independent evidence, besides the unclear and unbelievable PExh 1 (as explained below), was mere inadmissible hearsay because he admitted in cross examination that he was born in 1973 and was only ten (10) years old when his father bought the land. Further, he did not witness the agreement, and was not present either. 9. Of critical importance was the documentary evidence he produced to support his claim that his father bought the land. He produced **PExh 1** which was he alleged in his List of Documents dated 2nd March 2023 to have been an Agreement dated 20th December 1983. 10. This Court now scrutinises the purported agreement produced to corroborate or support his assertions. The date of 20th December 1983 is written at the bottom of the document. There is no date of the agreement written elsewhere. The date is written in front of the phrase “This agreement was made before me” and below the name of Joseph M. Muniko which was inserted by hand. It is also written in front of a nice handwritten phase “**NB: All balances paid us**.” The maker of the document in my view is the one who says the agreement is made “before me”, yet the same person is not able to sign the document but or even thump print it. Curiously and puzzling, this same person who only thump prints is able to very legibly handwrite in very good English grammar, “NB: All balances paid us”. Moreover, the said concluding phrase was made in a totally different handwriting from the one of the persons who filled in the rest of the document, and the insertion was not countersigned at all. This makes the entries in it the document suspect. But that is not all. 11. Again, the purported agreement was very vague in the contents. While it purported to refer to a sale to “Mrs Stephen Mwita Taruru” at the recital it showed that the buyer was “Stephen Mwita Taruru” at the bottom. This is a discrepancy not to be ignored. 12. Even so, again, regarding purchase of the alleged parcel of land the agreement (PExh 1) is not clear whether the seller was selling the whole or part of land parcel No. Bukira/Buisaboka/758. It read that the seller was selling without alternation whatsoever “part/whole of the aforesaid land”, yet again it indicates that the size sold was 25 x 100 ft “are/hectares”. 13. Regarding payments, a close scrutiny of the purported agreement reveals a lot of questionable gaps which cannot permit it to be accepted by this Court as proper document for proof of purchase of suit land. The agreement read that by the time of making it, the seller had received in advance KShs 6,000/= on 28/11/1983. The payment of the sum on that date is purportedly witnessed by someone who is not the witness to the agreement. Then the seller is purported to have thump printed after the indicated instalment but below the signature of the unknown individual who purported to witness it. This affixing of the signature brings to doubt the authenticity of the document in two ways. 14. First, was the instalment actually paid to anyone on 28/11/1983? If so, why was the name of the person who purported to witness the signature not indicated? And why did the person not witness the affixing of the seller’s thump print or signature at the next paragraph below where the seller’s name and identity card are finally indicated and a signature required? And further, regarding the payment of the instalment of KShs. 6,000/=, the signature is missing. Again, if the payment of the 1st instalment was witnessed on 28/11/1983 then was the agreement made on the date claimed to be 20/12/1983 or on the earlier date? 15. Lastly on this alleged payment by instalments, the great unanswered question is, why does the seller’s signature or thump print miss at the paragraph where his name and identity card are indicated as for the seller? Did Joseph Marwa Muniko ever sign this agreement? This Court seriously doubts if he ever did. Can parole evidence be adduced to vary the content of the written document? Not so. In my view it is a one–sided ‘agreement’ which then cannot pass as an agreement. 16. Again, other parts of the ‘agreement’, except for Joseph Marwa Minuko and his identity card, (see where it is indicated as seller and where it is indicated “*this agreement was made before me*”, where thump prints of the alleged parties to the agreement and witness(es) are supposed to be placed bear finger prints of sorts of the respective persons. But there is not even one thump print or signature on the two parts where the seller’s signature or thump print ought to be. This is a critical missing element. Again, is it Joseph Marwa Muniko who made the agreement (i.e. inserted the handwritten entries on each part)? This was the handwritings of the insertions are different. The purported seller is not shown to have written somewhere to acknowledge that he entered into the agreement. Thus, he cannot be said to be the maker of the agreement. 17. Further, if the seller is the one who is said to have signed against or for the payment of the 1st instalment, why is his signature missing at the part (in the next paragraph) where the seller is supposed to affix his signature which is a very critical act which binds the maker of an agreement to its contents? Why does it also miss as against the date of 20/12/1983 where both his name and identity card are again indicated to show “all balances paid”? This makes this Court to find and still hold that the purported sale agreement is a one–sided ‘agreement’ or document which cannot pass as an agreement. 18. Additionally, if the seller signed the agreement or thump printed as the recipient of the 1st instalment, then in my humble view, I find that the person said to have been Joseph M. Muniko could not be both illiterate and literate at the same time as to sign and or thump print separately. The person who drew this document must have either forged the signatures or caused thump prints to be inserted without volition or fraudulently made it (the purported document) to hoodwink the Court to believe that there existed such a document as an agreement. 19. In any event Joseph Marwa Muniko did not have anyone to witness the agreement on his behalf. Were the contents of the agreement, if any, ever interpreted to him to know what he was getting into? If not, was the purported agreement voluntary as to pass the test of the elements of a valid contract? 20. Lastly, it is curious that the deceased father of the Plaintiff did not file the said alleged Agreement with his documents or pleadings, as required by Order 3 Rule 5 of the Civil Procedure Rules but it would find itself to the court record nine years later, and with no explanation whatsoever as to where it was from. None was given and the original was never presented in court as required under Section 65 of the Evidence Act. 21. Besides, the purported agreement related and was alleged to have been in relation to land parcel No. Bukira/Buisaboka/758. But the claim herein related to a different parcel of land, No. Bukira/Buisaboka/2989 which was not mentioned anywhere in the agreement. Moreover, its reference and size were different from the parcel allegedly bought by the deceased Mwita Taruru. The Plaintiff only purported to link the settlement or occupation of parcel No. 2989 with parcel No. 758 without a Survey Report to confirm this allegation. It cannot put his claim on a proper legal proof as an adverse possessor. This shows that even on a balance of probabilities, his claim over the suit land could not have succeeded. But this Court needs to say more. 22. On the other hand, the 1st Defendant denied having sold the parcel of land to the deceased, and stated that he had only allowed him to collect rent in order to reimburse himself for the repairs he had conducted on the buildings that the 1st Defendant had on the land. He produced a tenancy agreement between himself and the deceased Mwita Taruru to this effect. It was DExh 8. This Court is inclined to agree with him that indeed, his was a relationship of landlord and tenant as will be analysed below. 23. It is trite law that he who alleges must prove, which position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows: **“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.** **(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”** 1. Sections 109 and 112 of the same Act states as follows: **“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.** **112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”** 1. In discussing the standard of proof in civil liability claims in this jurisdiction, the Court of Appeal in **Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280** held that: **“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognises that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”** 1. The 2nd Defendant on his part, claimed that he purchased the suit land from the 1st Defendant for a consideration for Kshs 550,000/- and produced a sale agreement dated 19th May 2014 to this effect. He also produced the green card, land control board consent and the green card and mutation which reveal that parcel no. 758 was sub divided to form 2989 and 2990 and titles were also issued to the 1st and 2nd Defendants as per the green card. 2. Other than the mention of a sale agreement from 1983, which as I have found was produced in evidence, there was no other documentary evidence tendered as proof that the contents of the purported PExh. 1 were true as to establish a sale agreement having taken place. It means that on a balance of probabilities the 1st Defendant is the one who proved, although the burden was not necessarily on him to disprove the Plaintiff’s claim, that the Plaintiff’s father was a tenant who had been given chance to repair the premises and apply the rent he should have been paying thereto to repay his expenses, and when the period ended in 2012 the Plaintiff refused to vacate the premises. 3. I must analyse one more piece of evidence that the Plaintiff adduced to try and found is claim of adverse possession. Additionally, he relied on the testimonies of PW2 and PW3 as evidence of occupation. They testified that they were tenants of the deceased and had been paying rent to him for over 15 years. However, other than the mere oral assertions that they were his tenants, they could not provide any or any cogent evidence that they were tenants, and even that the paid the alleged rents to the Plaintiff for the period they claimed. They did not provide any tenancy agreements or even receipts for the rents. The Plaintiff himself provided none of those and even the Kenya Revenue Authority (KRA) tax returns to show that he ever received any such income. 4. It follows that even if the court were to consider the claim for adverse possession, the Plaintiff did not satisfy the court as to the occupation and possession of the suit land. Moreover, the Plaintiff did not produce any evidence by way of a Survey Report to demonstrate the size of he suit land he occupied and also the location thereof in order to firm the claim of adverse possession. He wanted the Court to rely on the hazy claim of having bought 0.0205 Ha or 0.025 Ha as he pleaded or 25 ft by 100 ft which if converted does not even correspond with either 0.0205 Ha or 0.025 Ha but it corresponds to 0.0232 Ha, which is a different size of land all together. 5. Lastly, I have considered the evidence by way of proceedings of the Kehancha civil case No. 19 of 2008. This is PExh. 7. I find that the 1st Defendants was cross examined thereon regarding he evidence he gave that he sold 25 ft by 100 ft of land to the Plaintiff’s deceased father. I have very deeply considered the evidence. Nowhere, during the cross examination of the 1st Defendant (see 6 of the proceedings of the Exhibit) indicated or admit that the parcel of land he sold to the Plaintiff’s father was parcel No. Bukira/Buisaboka/758 or 2989. 6. It follows that the Plaintiff failed to prove his case to the required standard of a balance of probabilities. The suit is dismissed in its entirety on the premises that the claim had abated as against the Respondents. Furthermore, the Plaintiff could not have succeeded on his claim for adverse possession even if the suit would not have abated. The evidence he adduced was insufficient to prove the claim on a balance of probabilities. The entire suit would and did fail. 7. The Plaintiff is lucky that there was no counterclaim for mesne profits: I could have awarded them. In the interest of justice, and in terms of Section 3A of the Civil Procedure Rules, and to give efficacy to the orders of this Court, the Plaintiff and his servants or agents, if in occupation of the suit premises as they claimed, should vacate the suit property forthwith or they be evicted in the next thirty (30) days, at their cost. 8. The Plaintiff shall bear the costs of the suit. 9. It is so ordered. **Judgment Dated, Signed and Delivered virtually via the Teams Platform this 8th day of July 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **In the presence of**, Mr. Kerario Marwa Advocate for the Plaintiff Mr. Miruka Advocate for the Defendants.