A. Whether the Applicant has proved her claim of Adverse Possession.
13.Adverse possession has been defined as a method of acquiring title to land through actual, open, hostile and continuous occupation of the land at the exclusion of the true, registered and/or actual owner for a period of 12 years as prescribed by law.
14.The law on adverse possession is now well settled; a party claiming adverse possession must prove that his possession is peaceful, open and continuous for a statutory period of 12 years and the said possession is adverse to the rights of the true owner. Makhandia, JA in Mtana Lewa vs Kahindi Ngala Mwagandi  eKLR in describing the doctrine of adverse possession held as follows: -
15.A party claiming under adverse possession must demonstrate to the court that his possession was open, peaceful and continuous, that is, ‘nec vi, nec clam nec precario’. The Applicant contends that she has been in occupation and use of a portion of the suit land measuring 8Acres since the year 1991; the same having been purchased by her late husband (Deceased 1) from the Respondent’s father (Deceased 2). She produced a copy of the said sale agreement as Pexh 1. It is her claim that pursuant to the said sale, they took immediate occupation of the land, put up their matrimonial home and further, when deceased 1 died, he was buried on the said land.
16.She further stated that the said occupation was open, continuous, uninterrupted for a period of over 12 years and with the full knowledge of the Respondent. This assertion was confirmed by the Respondent in his testimony in court; he stated that the deceased 1 and his family had been occupying and using the suit land with his late father’s permission until the year 2016, whereupon he asked the Applicant to vacate the suit land.
17.A parcel of land in question must be registered in the name of a person other than the Applicant. The Applicant herein produced a copy of the Green Card as Pexh. 3 and a copy of the official search as Pexh. 4. From a perusal of the said exhibits, it is not in dispute that the suit land herein is registered in the name of the Respondent. The said registration was pursuant to succession proceedings by way of transmission.
18.The Respondent on the other hand confirmed that the suit land was registered in his name by virtue of transmission but maintained that the suit parcel No. 947 was not a subdivision of parcel No. 502 as alleged. I have however noted that despite denying the assertions made by the Applicant, the Respondent did not produce any exhibits to challenge the evidence produced by the Applicant. In the absence of any proof as to the contrary, I find that the exhibits produced by the Applicant remain uncontroverted.
19.Adverse possession is a fact to be observed upon the land and not on the title. It is trite law that mere change of ownership of land which is the subject matter of a claim for title under adverse possession cannot, per se, defeat the claim. See Githu v Ndeete  KLR 776. Therefore, the change in registration of the suit land from the name of deceased 2 to that of the Respondent herein does not affect the Applicant’s claim on adverse possession. Further, the Applicant herein has instituted the claim on behalf of his late husband’s estate.
20.As earlier pointed out, possession must be open, continuous and uninterrupted. Further, possession and occupation must also be non-permissive and/or non-consensual, with the intention to dispossess, see Court of Appeal decision in Gulam Miriam Noordin vs Julius Charo Karisa (2015) eKLR. The Applicant’s entry into the suit land was by virtue of a sale agreement (Pexh. 1) between Deceased 1 and 2. It is therefore not in dispute that the Applicant’s entry and occupation of the suit land was permissive.
21.However, despite the Applicant’s entry being with the consent and permission of the Respondent’s deceased father; adverse possession may still crystallize in 3 instances, that is, (i)where the vendor has failed to fulfil his duties/ obligation under the contract and to transfer the property to the buyer within the requisite period, (ii) upon payment of the final instalment of the purchase price and (iii) or upon the expiry of the license and/or contract period that is upon lapse of the 6 years period.
22.In the instant case, PW2 confirmed that deceased 1 paid the entire purchase price to Deceased 2 at the execution of the sale agreement (Pexh. 1) and thereafter took immediate vacant possession of the said purchased portion, developed the land and had been occupying the same until 2016, when the Respondent evicted the Applicant after the death of her husband. It is therefore my considered opinion that the continued occupation by the Deceased 1 together with his family, upon payment of the purchase price in full, was with the intention of dispossessing deceased 2 of his land; by asserting their rights in an adverse manner rather than a fulfilment of a contractual obligation. As a result of the said continued occupation, they acquired prescriptive rights capable of registration.
25.Guided by the above decisions; it is evident that a claim on adverse possession may still be sustained even where the initial entry and occupation was consensual/ permissive by virtue of a sale agreement; particularly upon full payment of the purchase price. In the instant case, it is not in dispute that deceased 1 paid the full purchase price on execution of the sale agreement and thereafter took immediate possession. It is therefore my considered opinion that time for adverse possession started running in the year 1991 upon payment of the entire consideration price and materialized in the year 2003.
26.Further and without prejudice to the foregoing, upon expiry of the 6 years’ period within which a contract should be enforced, any continued occupation and use of the property thereof by the Applicant, for a period exceeding the 12 years’ statutory period, became adverse to the rights and interests of the title holder and/or his estate upon his death. Failure by the vendor to fulfil his obligations under the contract by obtaining the Land Control Board Consent and transferring the property within the requisite statutory timelines also voids the said sale agreement.
28.The Applicant produced a copy of the sale agreement dated 3/3/1991 as Pexh. 1. The Respondent on trial conceded that there was a sale agreement between deceased 1 and 2 and the same was duly witnessed by his brother. Thus, the time for adverse possession in this case started running from the year 1997 and by the year 2009, the Applicant acquired prescriptive and overriding rights, adverse to the Respondent’s rights over the said portion measuring 8 Acres, capable of registration.
29.Therefore, by the time the Applicant was being evicted from the suit land in 2016; the period of adverse possession had already crystallized and it cannot thus be said that there was disruption of occupation or discontinuation of use of the said portion before the statutory period of 12 years.
30.Dispossession of the actual owner goes to the root of a claim under adverse possession. What amounts to dispossession in a claim for adverse possession has been held to be acts done by the adverse possessor which are inconsistent with the true owner’s enjoyment of the soil for the purpose for which he intended to use the same. It is instructive to note that the Applicant’s occupation and use of the portion of the suit land was with the intention to dispossess deceased 1 and his estate of the suit land. The Applicant and her late husband built their matrimonial home on the said portion of land and when deceased 1 died, he was buried on the said land. All these are acts which clearly show an intention to hold adversely and under a claim of right, the same are inconsistent with the actual owner’s intended use and enjoyment of the suit parcel. See Court of Appeal decision in Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another  eKLR)
31.In view of the foregoing analysis, I find that the Applicant has proved her claim on adverse possession to the required threshold. She has demonstrated the date she took possession, the nature and duration of the said possession and further proved that the occupation and use was open, continuous and uninterrupted for a period of over 12 years. As a result of the said occupation and use of the portion measuring 8 Acres, she acquired prescriptive and overriding rights over the said portion capable of registration.