Masinde v Khalakayi & another (Land Originating Summons E015 of 2025) [2026] KEELC 3797 (KLR) (16 June 2026) (Judgment)

Masinde v Khalakayi & another (Land Originating Summons E015 of 2025) [2026] KEELC 3797 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEELC 3797 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Land Originating Summons E015 of 2025 AK Bor, J June 16, 2026 Between Wafula Masinde Applicant and Samson Juma Khalakayi 1st Respondent Moses Wangila Misiko 2nd Respondent Judgment 1.Following the ruling in Bungoma Chief Magistrates Court Succession Cause No. E225 of 2024, the Applicant filed this suit seeking a determination as to whether he is entitled to 5 acres or 3 acres out of Parcel No. East Bukusu/East Sang’alo/204 (the suit land). 2.The applicant filed the originating summons dated 30/5/2025 seeking determinations as to whether he had been in continuous and peaceful occupation of portion of land measuring 5 acres to be curved out of the suit land and whether he had acquired interest in that portion of the land. He also sought a determination as to whether the probate court in Bungoma CMCC Succession Cause No. E225 of 2024 should allocate him the 5 acres of land. The other questions for determination are whether the late Bainito Misiko Khalakayi (the late Bainito) held the 5 acres in trust for the applicant and whether the administrator of his estate is legally obligated to transfer the 5 acres to the applicant upon conclusion of the succession cause through transmission and whether the respondents should sign the relevant documents to transfer the 5 acres to the Applicant and in default, the Court Administrator or Deputy Registrar should sign the transfer documents and for the Land Registrar to dispense with the title deed. 3.The summons was made on the ground that the applicant purchased 5 acres to be curved out of the suit land from the late Bainito and had been in occupation of the 5 acres since 1992. 4.The applicant swore the supporting affidavit in support of the summons. He exhibited a copy of the ruling by the probate court which directed that he files a suit before the Environment and Land Court (ELC) for a determination of the question as to whether he was entitled to 3 or 5 acres out of the suit land. He also exhibited a copy of the grant confirming that the respondents are the administrators of the estate of the late Bainito. He averred that he purchased 5 acres from the late Bainito in 1982 and attached copies of the agreements dated 23/11/1982, 30/12/1982. 16/1/1983 and 24/3/1985. He stated that he paid the purchase price in instalments and completed payment in 24/3/1985. 5.According to him, problems started in 2005 when one of the sons of the late Bainito known as Martin Wanyonyi Khalakayi uprooted the boundary and encroached on 2 acres of his land. He relied on the proceedings of the Kanduyi Land Dispute Tribunal which he claimed confirmed that he was entitled to 5 acres. 6.Samson Juma Khalakayi swore the replying affidavit in opposition to the applicant’s claim. He claimed that the applicant was guilty of laches and of making falsehoods. That whereas an agreement existed between the applicant and the late Bainito which was executed in 1982, that the applicant breached that agreement when he failed to pay the purchase price as agreed within the timeframe provided by the law. 7.He averred that the family of the late Bainito held a meeting with the applicant on 3/12/2002 on the mode of distribution of the assets of the estate of the late Bainito, in which it was resolved that the applicant would be allocated 3 acres on account of his failure to pay the full purchase price. He exhibited minutes of the meeting which he claimed the applicant signed. 8.He explained that the 2 acres which the applicant wished to buy were occupied by his late brother, Martin Wanyonyi Khalakayi. He averred that the applicant brought up the dispute regarding the boundary between the 3 acres he occupied and the 2 acres occupied by the respondent’s family around 2005 and that that dispute was resolved in 2005. In 2018 the applicant alleged that the family of the late Martin was interfering with the boundary features. He maintained that there was a clear boundary between the 3 acres occupied by the applicant and the 2 acres used by the family of the late Martin. He added that from 2002 until 2018, the applicant did not lay claim to the 2 acres occupied by Martin’s family. 9.The 1st respondent denied that any of his family members had interfered with the applicant’s occupation of the 3 acres and added that the land on the ground was more than the acreage given on the title deed and that this fact was established by the surveyor when the land was being shared out. He argued that having agreed to remain on the 3 acres without any duress or coercion, the applicant was estopped from laying claim to the additional 2 acres. 10.He maintained that the applicant had never denounced the agreement reached on 3/12/2002 and emphasised that the applicant had not been in open, continuous, peaceful, notorious and exclusive use and adverse possession of a portion of land measuring 5 acres comprised in the suit land for a period in excess of 12 years and that he did not deserve the orders he sought. 11.The applicant testified on 13/5/2026 and relied on his witness statement dated 27/9/2024. He told the court that he purchased 5 acres from the late Bainito in 1982 and completed payment in 1985. According to him, the suit land measured approximately 17.8 acres and the respondents had distributed 15.7 acres leaving 2.1 acres. He produced copies of his identity card, ruling from the Magistrate’s Court, search done on the suit land and the agreement which he entered into with the late Bainito. 12.On cross examination, he stated that when he bought the land in 1982, it had boundaries for the 5 acres. When he was shown the minutes of the meeting held in 2002, he denied signing that document. He reiterated that when he bought the land, the late Bainito had it measured for him and there was a boundary for the 5 acres. He confirmed that the late Bainito had not given his children land, which is why they took out succession proceedings. 13.The applicant called John Simiyu Mecha to give evidence. Mr. Mecha confirmed that the applicant bought 5 acres from the late Bainito which was to be curved out of the suit land. He stated that they took measurement and that he was a witness when the 2nd and 3rd instalments were paid on 30/12/1982 and 16/1/1983 respectively. He confirmed that he signed both agreements and that the money was paid to the owner of the land. 14.On cross examination, he stated that the land was measured in 1982 and that they planted sisal as the boundary. He stated that the balance of the consideration of Kshs. 2,000/= was paid although he did not witness the payment. He stated that he was the applicant’s neighbour and that the conflicts over the land started when Bainito died. 15.Samson Juma Khalakayi, the 1st respondent gave evidence and reiterated the facts set out in his replying affidavit. He admitted that the applicant entered into an agreement with the late Bainito in 1982 but maintained that the applicant breached the agreement. He maintained that the acknowledgement of payment of the balance of the purchase price was forged. He added that he did not have any objection to the applicant getting the 3 acres which he had occupied since 1998. He pointed out that the award by the Tribunal was never adopted by the court and that the court should therefore disregard it. He produced a copy of the land sharing agreement executed on 3/12/2002. 16.On cross examination, he told the court that the suit land belonged to his late father. He stated that he was one of the witnesses in the agreement dated 23/11/1982 but when he was shown the agreement, he could not find his name. He did not have any agreement to prove that the applicant was entitled to 3 acres. Before his father died, he did not transfer any land to them. He told the court that the suit land was fallow and was not being used. That after purchasing the land in 1982, the applicant went to the land in 1998. 17.Geoffrey Juma Khalakayi, the 2nd respondent also gave evidence. His testimony was similar to that of Samson Khalakayi. On cross examination, he stated that according to him the applicant bought 5 acres as the agreement showed. He elaborated that after purchasing the land, he started using and that he started building in the 1990s. 18.Upon conclusion of the hearing, the court directed parties to file written submissions, which it has considered. The applicant submitted that from the evidence contained in the documents and the oral testimonies given in court, it was clear that he purchased 5 acres and settled on it. He added that the only issue was the boundary issue, which fell under the jurisdiction of the land registrar. He maintained that he had been in continuous and peaceful occupation of the portion of land measuring 5 acres for over 12 years and had acquired title through adverse possession. He urged that since Bungoma CMCC Succession Cause No. E225 of 2024 was awaiting this court’s determination, this court should direct that he gets 5 acres from the estate of the late Bainito. 19.The respondents submitted that the applicant had failed to prove and establish his claim for adverse possession of 5 acres to the required standards. They argued that under section 38 of the Limitation of Actions Act, a person claiming adverse possession of the land may apply to the High Court to be registered as the proprietor in place of the registered proprietor but that they were not the registered owners of the suit land and that the claim should fail on that ground. 20.The respondents cited case law on the ingredients for adverse possession and submitted that from the facts of this case, there was a dispute as to the land which the applicant occupied. Further, that there was evidence of conflict dating back to 1999 over the boundary. They faulted the applicant for not getting a surveyor to establish the size of the land which he occupied. The respondents reiterated that they were willing to give the applicant the 3 acres which he occupied based on the mode of land sharing which they claimed that the applicant signed. 21.The issue for determination is whether the applicant has proved on a balance of probabilities that he is entitled to 5 acres out of the suit land through adverse possession or through trust. It is not in contention that the applicant purchased 5 acres of the land from the late Bainito in 1982. The Respondents claimed that the applicant breached the agreement by not paying the full purchase price. According to the grant of letters of administration issued on 14/7/2020, Bainito died on 12/12/1997. There is no indication that from 1982 up to 1997 he ever demanded payment of any balance of the purchase price as the respondents claim. 22.John Simiyu Mecha who was the 2nd witness called by the applicant confirmed that the conflict over the land started after Bainito died. The 1st respondent confirmed that the land was fallow and was not being used before Bainito died. 23.The minutes of the meeting held in 2002 upon which the respondent relied and which purported to allocate the suit land owned by the late Bainito indicated that the applicant was to get 3 acres. There was no basis for this decision since the clan and the family did not have the jurisdiction to determine how the estate of the late Bainito was distributed. This is precisely why the respondents initiated the succession proceedings before the magistrate’s court. They could not also determine whether the applicant failed to pay the purchase price in full, as this falls within the purview of the ELC. 24.Based on the evidence adduced, this court is satisfied that the applicant has proved on a balance of probabilities that he purchased 5 acres from the late Bainito and that upon receipt of the full purchase price and granting the applicant possession, there was a resulting trust in favour of the applicant who paid the purchase price for the 5 acres of land to the late Bainito. 25.The court finds that the late Bainito held 5 acres out of E Bukusu/E Sang’alo/204 in trust for the applicant. The administrators of his estate are under an obligation to transfer the 5 acres to the Applicant upon conclusion of Bungoma CMC Succession Cause No. E225 of 2024 through transmission. The respondents are directed to execute the necessary documents to facilitate the transfer of the 5 acres to the applicant failing which the Deputy Registrar of this court will execute the documents to facilitate the transfer of the 5 acres to the applicant. Each party will bear its costs. DELIVERED VIRTUALLY AT BUNGOMA THIS 16TH DAY OF JUNE, 2026.K. BORJUDGEIn the presence of:-Mr. Simiyu Wattangah for the Applicant.Mr. Samson Juma Khalakayi, Mr. Geoffrey Juma Khalakayi and Mr. Moses Wangila Misiko- the Respondents.Court Assistants – Bett/Metrine.