1.The plaintiffs (applicants) moved the court through Originating Summons (OS) dated 2nd May 2014 wherein they averred that they had acquired title to 8 acres of the parcel of land known as Marama/Shinamwenyuli/899 (the suit property) by adverse possession. They therefore sought the following reliefs:
2.The OS is supported by an affidavit sworn by Francis Eyinda Keya. He deposed that the defendant is the registered proprietor of the suit property and that during land adjudication, 8 acres of land parcel number Marama/Shinamwenyuli/817 were erroneously included in the suit property. That the plaintiffs have been in peaceful and exclusive possession of the 8 acres from 1963 to the date of filing the OS. That they grow maize, sugarcane, cassava, arrow roots, bananas, and potatoes on the 8 acres.
3.The defendant opposed the OS through a replying affidavit in which he deposed that he is the registered proprietor of the suit property which measures 28 acres. That he was registered as proprietor on 21st September 1964 and that the first plaintiff was born in 1960 hence it is impossible that he would have been in occupation of the 8 acres from 1963 as he claims. That he left the plaintiffs’ father was the initial registered proprietor of parcel number Marama/Shinamwenyuli/817 to tend cane crop on the suit property for 6 years while he (the defendant) was away in Mombasa for almost 6 years and that upon the demise of the plaintiffs’ father, the plaintiffs encroached on the suit property. That the plaintiffs apologised at a meeting held on 7th July 2013. He further deposed that the second plaintiff built a house on the suit property in 1994 and that he (the defendant) immediately reported the encroachment to the area chief whereupon the plaintiffs were summoned, and they conceded that they did not know where their boundary reached. That despite promising to vacate, the plaintiffs did not vacate as a result of which the defendant filed Kakamega ELC No. 378 of 2013 seeking their eviction.
4.Hearing of the OS proceeded by way of oral evidence. Prior to commencement of the hearing, the parties recorded a consent that the Land Registrar and the Land Surveyor visit the parcels known as Marama/Shinamwenyuli/899 and Marama/Shinamwenyuli/817 to establish the boundaries and acreage and to thereafter file a report in court.
5.Francis Eyinda Keya testified as PW1. He adopted his above-mentioned supporting affidavit and added that the Land Registrar and the Land Surveyor visit the parcels and filed a report dated 29th January 2019. He further stated that he was born in 1958 and that the first registration of the parcels was in 1964 when his father was residing on Marama/Shinamwenyuli/817 which neighbours Marama/Shinamwenyuli/899. That when the plaintiffs’ father told the plaintiffs to construct houses on Marama/Shinamwenyuli/899, the defendant reported the matter to the area chief and later sought to evict the plaintiffs in the year 2013. He added that he has two houses: one on Marama/Shinamwenyuli/817 and another on Marama/Shinamwenyuli/899.
6.John Orienyo Keya testified as PW2 while Josephine Chemutai who is a Land Surveyor working at the District Survey office Kakamega testified as PW3. PW3 stated that she visited the site on 28th November 2018 and prepared the report dated 29th January 2019. That since the land registrar was not present, she dealt only with the sizes and established that the 8-acre area claimed by the plaintiffs is part of Marama/Shinamwenyuli/899.
7.The plaintiffs’ case was then closed.
8.The defendant Juma Mangala Musa testified as the sole defence witness. He adopted his above-mentioned replying affidavit. That out of the 28 acres comprised in Marama/Shinamwenyuli/899, he has been in occupation of only 20 acres while the plaintiffs have been in occupation of 8 acres since 1994 when they constructed on the said portion. The defence case was then closed.
9.Parties filed and exchanged written submissions. I have duly noted the submissions. The issues that arise for determination are whether adverse possession has been established and whether the reliefs sought should issue.
10.The essentials of proving adverse possession were discussed by the Court of Appeal in Richard Wefwafwa Songoi v Ben Munyifwa Songoi  eKLR as follows:
11.The plaintiffs contend that they have been in possession of the disputed 8 acres from their childhood with the defendant’s knowledge and that they have established their homes on it. They further contend that the defendant has acknowledged that they have been in possession since 1994 and that they have therefore established adverse possession.
12.Whereas it is true that the defendant has acknowledged that the plaintiffs have had exclusive possession of the 8 acres since 1994, it is trite that a party claiming title through adverse possession must not only establish exclusive possession for the requisite 12 years, he must also demonstrate an intention to dispossess the registered proprietor. The parties herein own adjacent parcels.
13.The 8-acre area that the plaintiffs claim abuts the plaintiffs’ own Marama/Shinamwenyuli/817. Going by prayers (e) and (f) of the OS and the statement by the plaintiffs in the in affidavit in support of the OS to the effect that 8 acres of land parcel number Marama/Shinamwenyuli/817 were erroneously included in the suit property during land adjudication, I am persuaded that the dispute between the parties is really a boundary dispute carried over from the adjudication process as opposed to a genuine adverse possession claim. Given that adjudication background coupled with the fact that the parties are neighbours, the plaintiffs needed to show unmistakable evidence of an entry with an intention to dispossess the registered proprietor. The Court of Appeal emphasised the importance of establishing intention to possess in Masambaga & 7 others v Malindi Holdings and Estate Limited (Civil Appeal 165 of 2019)  KECA 782 (KLR) (10 June 2022) (Judgment) where it stated as follows:
14.I also note that the defendant testified that he filed Kakamega ELC No. 378 of 2013 seeking the plaintiffs’ eviction. PW1 confirmed this when he stated that the defendant sought to evict them in the year 2013. PW1 further testified that when the plaintiffs constructed houses on Marama/Shinamwenyuli/899, the defendant reported the matter to the area chief. This OS was filed on 5th May 2014, just about a year after the defendant had sought to evict the plaintiffs.
15.In view of the foregoing, the plaintiffs have failed to establish adverse possession. That being so, the reliefs sought cannot issue. In the circumstances, I dismiss the plaintiffs’ case with costs to the defendant.