1.Mathlida Odago Okaka (hereinafter referred to as the Plaintiff) came to this court against Isaaka Anudo Menya by way of Originating Summons under Section 1, 1A, 3, 3A of the Civil Procedure Act and Order 37 of the Civil Procedure Rules 2010 claiming to be entitled to a portion of the parcel of land designated as Nos Kisumu/Katieno/1846 measuring 83m long by 25 meters by adverse possession and asked for the determination of the following issues:1.An order that the applicant and his family have been in adverse possession of a portion of land parcel Nos. Kisumu/katieno/1846 measuring 83m long by 25 meters for a period of over 12 years.2.An order that upon expiry of 12 years since the applicant and her family have been in occupation and possession of a portion of the said parcel of land the respondent’s rights over the title have been extinguished.3.An order that the respondent holds the whole portion of land in trust for the applicant.4.An order that a portion of the said parcel of land Nos. Kisumu/katieno/1846 measuring 83m long by 25 meters be transferred to the applicant and the applicant be registered as the owner of the said portion of land respectively.5.An order that the respondent do execute all the transfer document in favour of the applicant and in event of default, the Deputy Registrar of this honourable court herein be empowered to execute the same to give effect to the aforesaid order.6.An order that the respondent does meet cost of this suit.7.Such other or further relief order of this honourable court may deem fit and just to grant in the circumstances.
2.The Originating summons was supported by the affidavit of Mathlida Odoyo Okaka sworn on 13/1/2015 wherein she states that in early 2002 her diseased husband Silvanus Okaka Ongowo purchased a portion of LR. Nos. Kisumu/katieno/1846 measuring 83m long by 25 meters width from Solomon Agelo Ogonya. That her late husband paid the consideration there of Kshs. 15,300 in full by way of instalments.
3.That at the time of the said purchase, the land was registered in the name of Zablon Opiyi Ogonya who had died earlier in October 1997. That the said Solomon Agelo Ogonya is the next of kin of Zablon opiyo Ogonya and thereof had the capacity to sell the said parcel of land.
4.That they took immediate possession of the parcel of land sold to them and since then she has been in actual occupation thereof.
5.That Isaaka Onudo Menya had earlier purchased the upper portion of the said land from Zablon Opiyo Ogonya and had been using it peacefully without interfering with her lower portion. That her portion of land is below the access road and the boundaries are clearly marked on the ground.
6.That sometime in 2013 Isaaka Anudo Menya caused the whole parcel of land to be transferred in his name without her knowledge of consent.
7.That Isaaka Anudo Menya has started to threaten her to leave for him the whole land yet he knows that she is entitled to the lower portion that is situated below the access road measuring 83m by 23m. That the respondent has not used this portion of land because she has been in full occupation and cultivation of the land for subsistence farming.
8.That upon expiry of 12 years as they have been in occupation and possession the aforesaid parcel of land has been extinguished by the operation of the law. That the respondent holds the said parcel in trust for the applicant.
9.She contends that she is entitled to be registered as the owner of the said portion of land measuring 84meters by 25 meters and below the access road that cuts through the land and thereof she prays that the respondent be ordered to transfer her portion of the land directly to her.
10.In reply to the originating Summons, the defendant states that he purchased the said land parcel number Nos. Kisumu/katieno/1846 measuring zero decimal eight Hectares (0.8)HA wholly from one Zablon Opiyo Ogonya who was the registered owner.
11.That he purchased the said parcel of land in piecemeal until he had the entire parcel sold to him upon payment of the agreed purchase price by instalments paying the final balance on 20.8.1998.
12.That after fully paying the purchase price he proceeded to obtain the title deed of the said parcel as the seller Zablon Opiyo Obonya had signed for him all the transfer forms and obtained the relevant land control consents.
13.That since 1979 he has been in actual occupation of the entire parcel of land and even built his homestead therein. That the applicant herein has never at any given time occupied the said parcel of land or any portion thereof whatsoever.
14.The principle of Adverse Possession is underpinned t in the Limitations of Actions Act Cap 22 and the Registration of Land Act No 6 of 2012; Section 7 states thatMoreover in Section 13Section 16 provides as follows;Section 17 goes on to state;Finally, Section 38(1) and (2) states;
15.The ultimate import of these sections is to extinguish the title of the proprietor of the land in favour of the adverse possessor at the expiry of 12 years of occupation of the Adverse Possession on the suit land..These sections are compounded with Section 28(h) of the Land Registration Act, 2012 recognizes overriding interests on land, some of which are rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of actions or by prescription. Under Section 7 of the Land Act, 2012 prescription is one of the ways of acquisition of land.
16.In Kasuve Vs Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove;
17.The key test is that the owner of the land must have been dispossessed or has discontinued possession of the property.
18.I have considered the evidence on record and do find that the plaintiff has proved on a balance of probabilities that she in occupation of a portion of land belonging to the defendant and has been in occupation for a period of more than 12 years before the filing of the suit. The plaintiff is therefore in adverse possession of the said portion of land. The upshot of the above is that the plaintiff is entitled to the prayers sought hence I do grant orders:1.An order that the applicant and his family have been in adverse possession of a portion of land parcel Nos. Kisumu/katieno/1846 measuring 83m long by 25 meters for a period of over 12 years.2.An order that upon expiry of 12 years since the applicant and her family have been in occupation and possession of a portion of the said parcel of land the respondent’s rights over the title have been extinguished.3.An order that the respondent holds the whole portion of land in trust for the applicant.4.An order that a portion of the said parcel of land Nos. Kisumu/katieno/1846 measuring 83m long by 25 meters be transferred to the applicant and the applicant be registered as the owner of the said portion of land acordingly.
19.Costs of the suit to the Plaintiff.