SAMWEL NYAKENOGO V. SAMWEL ORUCHO ONYARU

JUDGMENT OF THE COURT

In an originating summons dated 2^nd August and filed in the superior court at Kisii on 16^th August, 1999, the respondent then as the plaintiff paused two questions; namely:

“(a) Whether the plaintiff has acquired prescriptive rights over 11⁄2 acres of land parcel No. West Kitutu/ Mwakibagendi/ 28.

(b) Why the defendant should not transfer 11⁄2 acres of parcel No. West Kitutu/Mwakibagendi/28 to the plaintiff herein”.

The application was made under Order XXIV rr 33D (1) and (2 ) (sic) of the Civil Procedure Rules. (See Order XXXVI r. 3 of the Civil Procedure Rules). It was supported by an affidavit deponed to by the plaintiff as follows:

“1. ...

2. ...

3. That by an agreement dated 26^th November, 1976, I bought a clearly demarcated 1 1⁄2 acres of land parcel No. WEST KITUTU/MWAKIBAGENDI/28 from the late SIMIONI BOKONKO MAIRURA annexed hereto and marked S001 is a copy of the said agreement and rendition of the same in English marked S002.

4. That I paid the agreed pu…