Caleb & another v Ochieng & another (Environment & Land Case 86 of 2016)  KEELC 233 (KLR) (26 January 2023) (Judgment)
Neutral citation:  KEELC 233 (KLR)
Republic of Kenya
Environment & Land Case 86 of 2016
A Ombwayo, J
January 26, 2023
Duncan Omondi Caleb
Mary Atieno Ayalo
Shem Onyango Ochieng
Aggrey Aluda Edege
1.Duncan Omondi Caleb and Mary Atieno Ayeto have come to court against Shem Onyango Ochieng and Aggrey Aluda Edege claiming to be entitled to the whole of Kisumu/Kasule/6584 and a portion of Kisumu/ Kasule/2023 by way of adverse possession and prays for determination of the following issues :-
1Whether the 1st plaintiff’s father bought the suit property in 1984.
2Whether the said 1st plaintiff established a home in the said property in 1984.
3Whether a portion of Kisumu/Kasule/2033 registered in the name of the 2nd defendant forms part of the portion occupied by the applicants.
4Whether the plaintiffs have stayed in the suit property for over a decade without interruption.
5Whether the 1st defendant fraudulently registered himself as the proprietor of the same.
6Whether the plaintiffs are entitled to be registered as the owners of the suit property.
7Whether the applicants are entitled to orders of permanent injunction restraining the respondents from getting into, encroaching upon or otherwise interfering with the applicant’s quiet occupation, possession and enjoyment of the suit land.
8Whether the applicants are entitled to costs.
2.The originating summon is supported by the affidavit of Willis Obura Ombwayo who is sixty five years old and has lived in Kasule all his life. He served as Chief of Central Kolwa between 1992 – 2005 where the property is located. According to the deponents the plaintiff have been in possession since 1984. The defendant are complete strangers to him. The plaintiffs have established a home on the suit parcel of land. The property was sold to the plaintiffs father by Rosemary Adoyo Ochieng. He is surprised that the property is registered in the names of the defendant. Beatrice Auna Odipo a daughter of Rosemary Adoyo Ochieng states that she is a daughter of Rosemary Adoyo Ochieng and Thomas Owiti Wamwanga. Her mother sold Kisumu/Kasule /1244 to the plaintiffs father and plaintiff’s built their houses on the land and planted trees. She used to water the trees.
3.Duncan Omondi Caleb swore an affidavit and stated that his father legally acquired the parcel of land and the 1st plaintiff took possession. He did not know the number of the parcel occupied by himself and sought the help of district surveyor and established that he is occupying Kisumu/Kasule/2033 is registered in the names of the 2nd defendant. Kisumu/Kasule/2745 has been subdivided into 6584, 4585, 6586 and registered in the names of the 1st defendant. He states that the has been in open peaceful and uninterrupted possession of the said property which is securely fenced with a house and other structures. The defendant has now claimed that they are his tenants. In the replying affidavit sworn by Onyango Ocheing, states that he bought the property as an innocent purchaser for value in the year 2012 and took possession immediately. He followed the legal procedure and there was no objection. He has subdivided the property and sold to 3rd parties.
4.In a further affidavit Duncan Omondi Caleb states that he purchased the property and took immediate possession. When he bought the land, it was in the name of Duncan Omondi Caleb.
5.When the matter came up for hearing the 1st plaintiff testified that the property was his and he was in occupation. The 1st defendant approached him and asked him to pay rent. He refused because he had purchased the property. He filed this suit as a result to the request to pay rent. His father bought the land on 3rd August 1984. He has been in possession since then. He has been in possession of the land for 33 years. He is now 65 years old.
6.PW2 Willis Obura Ombwayo a retired chief of the area stated that the plaintiff has developed the land and planted sugar cane.
7.I have considered the evidence and submissions on record and do find that the plaintiffs father Caleb Joseph Wadenya entered into agreement with Rosemary Adoyo Ochieng for the purchase of Kisumu/Kusule/1244. The agreement was made on 2nd July 1984. The plaintiffs husband and wife entered the land and too possession. The plaintiff father and the vendor died before the transaction could be formalized. Later the parcel of land was identified as Kisumu/Kisule /2745 owned by Adleyb Bunde . Adheyan Bunde sold the property to the 1st defendant who subdivided it and created Kisumu/Kisule/6584,6585 and 6586. The land to plaintiff occupied since 1984 is now Kisumu/Kisule/6584 registered in the names of the 1st defendant. It is not in dispute that the plaintiffs have occupied the property since 1954.
8.The defendant did not call any evidence hence the evidence of the plaintiff was not contested.
9.The principle of adverse possession is well settled under Limitation of Actions Act. Section 7 of the said Act places a bar on actions to recover land after 12 years from the date on which the right accrued. Further section 13 of the same Act, provides that adverse possession is the exception to this limitation:Finally, Section 38 of the Act provides that:
10.The principle of adverse possession was more elaborately set out in the case of Wambugu vs Njuguna  KLR 172, where the Court held that:And that:
11.This right to be adverse to land does not automatically accrue unless the person in whom this right has accrued takes action. Section 38 of the Act gives authority to the claimant to apply to Court for orders of adverse possession. Set the findings of the Court in Malindi App No. 56 of 2014 Mtana Lewa v Kahindi Ngala Mwagandi  eKLR where it held;
12.Further, in the case Mbira v. Gachuhi (2002) 1 EALR 137: the court stated as follows;
13.Therefore, to determine whether the Applicant’s rights accrued the Court will seek to answer the following
14.I do find that the defendants purchase of the suit land did not change the plaintiff right of ownership through the principle of adverse possession. I do grant judgment that the plaintiff father bought the suit property in 1984 and the plaintiff established his house on the property in 1984. That a portion of Kisumu/Kisule/2033 forms a part of the portion occupied by the plaintiff.
15.The plaintiffs are entitled to be registered to the owners of the suit property and do order that they be registered as owners and the names of the defendats be cancelled from the register. I do issue an order of permanent injunction against the defendants restraining them from entering, encroaching or interfering with the plaintiffs quiete occupation, possession and entitlement of the property. Costs to the plaintiffs.
JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 26TH DAY OF JANUARY 2023.A O OMBWAYOJUDGE