29 On our part we are of the view that there are four alternative timelines

29 on our part we are of the view that there are four

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29. On our part, we are of the view that there are four alternative timelines that could be used to compute when time began to run for purposes of the plaintiff’s claim for adverse possession. These are 1964, 1970, 1971 or 1978. The year 1964 is the year of the sale agreement between the parties and in this year the plaintiff took legal possession of the suit property. In 1970, the plaintiff constructed a house on the suit property and put his elder brother in actual physical possession and occupation. Subsequent to this year, the plaintiff continued to have actual as well as constructive possession of the suit property. As correctly established by the trial court, in 1971, the plaintiff together with the appellant went to the lands office in Muranga and found that the property was not registered in the correct names of the appellant. In 1978, counsel for the appellant Messrs Karuga Wandai & Co. Advocates, wrote a letter dated 18 th August 1978 to the plaintiff/respondent indicating that the appellant had changed his mind to sell the suit property. 30. The evidence on record shows that in each of these years, the plaintiff/respondent was in actual and or constructive possession of the suit property; that the possession by the plaintiff was open, uninterrupted and based on a claim of right and or occupation as a bona fide purchaser for value. From whichever year adverse possession is computed, as at the time of filing the Originating Summons in 1991, twelve (12) years had lapsed and the plaintiff’s right and claim based on adverse possession had arisen, accrued and vested. The record shows that the plaintiff’s possession of the suit property was nec vi, nec clam and nec precario ; possession by the plaintiff continued uninterrupted and without force until his death on 25 th December, 2002; after his death, possession by the plaintiff continued through his dependants and personal representative until 2011 when the appellant demolished the house that had been constructed on the suit property. Our analysis and appreciation of the facts established on the record leads us to conclude that the trial Judge did not err in finding that the 12 year period for adverse possession had been proved. 31. The appellant contend that the plaintiff and his elder brother were in possession of the suit property pursuant to consent given by the appellant and there can be no adverse possession when entry is by consent of the registered proprietor. In Mwinyi Hamis Ali – v- Attorney General and Philemon Mwaisaka Wanaka, Civil Appeal No. 125 of 1997 it was held that “ adverse possession does not apply where possession is by consent and in a court of law, sympathy takes a second stand as the Court is governed by statutes .” In Wambugu – v- Njuguna, (1983) KLR 172 at holding 4 , this Court held: “Where the claimant is in exclusive possession of the land with leave and license of the appellant in pursuance to a valid agreement, the possession becomes adverse and time begins to run at the time the license is determined”.

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