Bakari Hussein Siwa & 47 Others v Faith Wambua & Najma Ali Ahmed

12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. BERNARD OKUMU KOKOO KATANA NZARO NGUWA AMINA ABDALLA KITHEKA PAULO ODHIAMBO OUMA ROSELINE ACHIENG OKOTH SAMWEL ODHIAMBO OTIENO LUQMAN YUSUF ABDALLAH NDOKO NGUMBAO JUMA EMILIO NJAGI GEORGE OTIENO OWINO LUCY NGITHI NYAGA HAMISI KAHINDI CHENGO FLORENCE.S.MAKUNGU IRINY KANYIRI G. ROBERT PETER NJERU DAVID MOKORA ONYANCHA JACKSON KIPONDA GANDI KASOMALI KAZUNGU KARISA KITSAO KARISA NGOKA STEPHEN PANDE KONDE RAPHAEL CHENGO MATHAYO SALIM TSOFA BAYA MASHUA MUKAMA KISARA FURAHA KARISA THOYA LYDIA CHERENGA MBARU DORCAS NDINDA MUSYOKA RAJAB CHARO GONA KHAMISI KITHI REHEMA ALUOCH ODHIAMBO MANGARO KALUME MANGARO RUENANCE MAKU WANJE GRACE BAHATI KIRIMO JENNIFER ATIENO ONYANGO LONAH AKOTH OTIENO FATIMA KALE ABDALLA JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 2 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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47. STEPHEN OCHIENG……….…PLAINTIFFS/APPLICANTS - AND – BIKO 1. FAITH WAMBUA 2. NAJMA ALI AHMED …………..…DEFENDANTS/RESPONDENTS JUDGEMENT I. Preliminaries 1. The Judgement of this Honourable Court pertains to the Civil suit instituted by the Applicants, Bakari Hussein Siwa and 47 others, through the consolidated suits by way of Originating Summons dated 13th September, 2021 under the provision of Sections 7, 17 and 38 of the Limitation of Actions Act, Cap. 22, of the Laws of Kenya and Section 7(d) of the Land Act No. 6 of 2012, who sought to be declared the absolute proprietors of Land Parcel No. 399/I/MN, including sub - divisions 21898/I/MN – 21902/I/MN and 20948/I/MN (CR 63882), measuring approximately 2.85 acres (Hereinafter referred to as “The Suit Land”) by way of a claim of land adverse possession. 2. The Applicants contended that they entered the suit properties between the years 1999 and 2006, and have since resided thereon openly, continuously, exclusively, and without interruption for a period exceeding twelve (12) years, thereby extinguishing the Defendants’ title under the doctrine of adverse possession. 3. Upon filing of the Originating Summons, the Defendants, Faith Wambua (1st Defendant) and Najma Ali Ahmed (2 nd Defendant), JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 3 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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duly entered appearance and filed responses, including Statements of Defence and Counter - Claims. The 2 nd Defendant/ Respondent also filed a Defence and Counter - Claim dated 12 th June, 2023. The Defendants assert that they are the registered proprietors of the suit properties, deny the Applicants’ claim of adverse possession, and sought orders for eviction, damages for trespass, and injunctive relief. 4. The matter therefore proceeded to full hearing, whereby “viva voce” evidence was adduced by the Applicants and the Defendants, supported by documentary exhibits, survey reports, police records, and satellite imagery. The Court directed that the consolidated suits be canvassed through written submissions, which were duly filed by all parties. II. Court directions before the hearing 5. On 18th September, 2023, upon confirming that the Plaintiffs had complied with Order 11 of the Civil Procedure Rules, 2010, the Honourable Court directed that the matter be set down for hearing. The Court further ordered that the Originating Summons be converted into a plaint, with the Applicants and Respondents redesignated as Plaintiffs and Defendants respectively, and the annexures to the supporting affidavits treated as the Plaintiffs’ List of Documents. 6. The Honourable Court directed that the matter proceed by way of viva voce evidence in accordance with Order 37 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010, and granted leave to the Plaintiffs documentary to adduce exhibits, JUDGMENT: ELC NO. 189 OF 2021 (O.S.) oral survey Page 4 of 112 testimony reports, and supported by photographic HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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evidence. On 23rd July, 2024, the matter was fixed for hearing. Owing to logistical challenges, the Court allowed the hearing to proceed virtually at 11:00 a.m. On 24 th July, 2024, the matter resumed virtually and the Plaintiffs called additional witnesses, including neighbours and committee members, after which they marked their case closed. 7. Subsequently, on 11th December, 2024, the Defendants opened their case. The 1st Defendant, through her attorney, produced documentary evidence including title deeds, survey reports, and police records. The 2nd Defendant, Najma Ali Ahmed, similarly testified and produced her title documents, goodwill agreement, and police occurrence book entries. The Defendants thereafter marked their cases closed. 8. The Court thereafter directed that the consolidated suits be canvassed through written submissions, which were duly filed by all parties, paving the way for delivery of judgment. III. The Applicants’ case 9. The Applicants’ claim by land adverse possession for determination of the following questions:a. Are the Plaintiffs/Applicants entitled to be declared as the proprietors of 2.85acres of land on Land Parcel No.399/I/MN, including Subdivision Nos.21898/I/MN, CR No. 76436, 21899/I/MN, CR No. 76437,21900/I/MN,CR No. 76438,21901/I/MN,CR No.76439,21902/I/MN, CR No. 76440 and 20948/I/MN,CR No. 63882,for having acquired the same by way of Adverse possession after staying and/or occupying and/or residing thereon for over 12 years? b. Are the Plaintiffs/Applicants entitled to be registered as the owners of 2.85 acres of land on Land Parcel No.399/I/MN, including Subdivision Nos.21898/I/MN,CR No. 76436, JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 5 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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21899/I/MN, CR No. 76437, 21900/L/MN, CR No. 76438,21901/L/MN, CR No. 76439, 21902/I/MN, CR No. 76440 and 20948/IMN,CR No. 63882 and be issued with a Certificate of Title and/or a provisional Certificate of Title? c. Are the Plaintiffs/Applicants entitled to the costs of this suit? 10. The Original Summons was based on the following grounds on the face of it and those of the 15 Paragraphed supporting affidavit sworn by BAKARI HUSSEIN SIWA, the 1st Applicant sworn on the same day with the Originating summons where he averred as follows:a) He was the 1st Plaintiff/Applicant herein and had authority from the other Plaintiffs/Applicants to swear the affidavit on his own behalf and on behalf of the other Plaintiffs/Applicants. He appended a certified copy of the authority document dated 10th September, 2021 alongside the list of Plaintiffs/Applicants authorizing him to appear, plead, and act on their behalf, marked as “BHS – 1”. b) The Defendants/Respondents were the registered owners of the suit premises, being Land Parcel No. 399/I/MN, including Subdivision Nos. 21898/I/MN, CR No. 76436; 21899/I/MN, CR No. 76437; 21900/I/MN, CR No. 76438; 21901/I/MN, CR No. 76439; 21902/I/MN, CR No. 76440; and 20948/I/MN, CR No. 63882. He appended certified copies of certificates of postal search and other ownership documents marked jointly as “BHS – 2”. c) The Plaintiffs/Applicants, including himself, had lived, occupied, and resided on the suit premises for over twelve (12) years and did not know of any other place of residence apart from the suit premises. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 6 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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d) He personally entered onto the suit premises in the year 2006 and had resided thereon continuously to date, together with his family and the other Plaintiffs/Applicants, without ever being threatened with eviction. He appended certified scanned photographs of houses, developments, and farming activities undertaken on the suit premises, marked jointly as BHS-3. e) All the other Plaintiffs/Applicants had also resided on the suit premises for over twelve (12) years, either having been born thereon or having entered before the year 2006, with the first person entering onto the land in the year 1999. f) Some of their relatives who passed away while residing on the suit premises were buried on the land, though their graves were not cemented. g) The Plaintiffs/Applicants had cultivated the suit premises for the number of years they had been residing thereon, planting crops and other plants for subsistence and livelihood. h) The Plaintiffs’/Applicants’ entry and occupation of the suit premises was without the authority, consent, or permission of the Defendants/Respondents, and that they had lived there openly, continuously, uninterruptedly, exclusively, and adversely to the title of the registered owners. i) Since their entry was without permission or consent, and their occupation had been open, continuous, uninterrupted, exclusive, and adverse to the title of the registered owners, they were entitled to be registered as proprietors of the suit premises by way of adverse possession. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 7 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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j) The Defendants/Respondents had no single structure or even a tree on the suit premises and had never occupied the same at any given time, meaning that the Plaintiffs had dispossessed them of their land and discontinued their possession thereof. k) He had been advised by their advocates on record, which advice he verily believed to be true, that having resided and occupied the suit premises for well over twelve (12) years and having met all the requirements of adverse possession, they were entitled under the provision of Section 38 of the Limitation of Actions Act, Cap. 22 to seek orders vesting ownership in them. l) In view of the foregoing, the Plaintiffs/Applicants were entitled to the orders of adverse possession in respect of the suit premises. m) The Affiant reiterated that the Plaintiffs/Applicants did not know of any other place of residence except the suit premises. n) The affidavit was sworn in support Plaintiffs’/Applicants’ application herein. of the 11. The Plaintiffs/ Applicants called PW - 1 on 23 rd July, 2024 and who testified as follows before that through the Learned Counsel representing the Applicant gave the following remarks:A. Opening remarks by the Learned Counsel for the Plaintiffs 12. The Learned Counsel submitted that the matter involved a land adverse possession on 6 acres as per the originating summons. B. Examination in Chief of PW - 1 by Mr. Kenga Advocate. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 8 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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13. PW - 1 was sworn and testified in Swahili language. He was called MR. BAKARI HUSSEIN SIWA, a Citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing. He was born in 1955. PW - 1 stated that he had recorded a witness statement on 19 th June, 2023 and relied on it as his evidence. He further explained that he had filed a List of Documents dated 19 th June, 2023 comprising eighteen (18) documents. Plaintiff Exhibit Numbers 1–18 were produced, covering pages 8 to 37 of the Originating Summons and pages 4 to 12 of the Plaint documents. PW - 1 deponed that he had also recorded a further witness statement dated 21 st June, 2023, which consolidated all the documents. He clarified certain amendments, stating that he had entered the land in January, 2006 and not in November, 2006, and that Paragraph 8 of his statement should reflect that Jacob entered the land in May, 2006. He prayed to be granted ownership of the land. 14. PW - 1 averred that although the Defendant, Faith Wambua, claimed that they had entered the land in the year 2015, this was not true. He disagreed with the Google Maps evidence, asserting that they had seen Faith Wambua on the land as early as year 2013. PW - 1 further stated that Hussein Maalim, the husband of Najma, claimed to have discovered squatters on the land in August 2018. PW - 1 acknowledged awareness of the Agreement dated 1st August, 2018, under which a sum of Kenya Shillings Eight Hundred Thousand (Kshs. 800,000/-) was paid, but stated that the balance was never settled. He emphasized that to JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 9 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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date they were still on the land and that since the year 1999 they had never been evicted. 15. PW - 1 also stated that in the year 2011 a lady called Sada had claimed there was a case concerning the land. He added that in the year 2020, both Faith Wambua and Najma reported them to the police alleging illegal invasion of the land, as recorded in the Occurrence Book (O.B.). B. Cross Examination of PW - 1 by Mr. Okoko Advocate. 16. PW - 1 testified that he had been born in Kwale, that he had seven children and had married several wives. He stated that his last born was 17 years old and attended Kanzandani Junior Academy in Nyali, while the others had studied at Bamburi. PW 1 confirmed that he had brought the suit on behalf of 47 persons. He was referred to the Authority to Act dated 10 th September, 2021 signed by the 47 people. PW - 1 stated that all of them lived on the suit land. He acknowledged that from the filed documents the Plaintiffs had not specified the size or the exact location occupied by each of the 47 people. He added that the names were from different parts of the Republic of Kenya. 17. PW - 1 confirmed that he knew Paulo Auma Adhiambo, the 15 th Plaintiff, but had not specified the exact place or size that Paulo occupied. He stated that Paulo had entered the land in December, 2006. PW - 1 explained that he had photographs, shown but not clearly tied to the statement, and that there was no evidence in court though he had included some evidence on page 31 depicting a shop. He admitted that for the remaining 46 people, the Plaintiffs had not specified the location of occupation JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 10 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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on the land, nor attached their photographs or copies of their identity cards, or any indication of their claim, though he maintained that these people were found on the land. 18. PW - 1 reiterated that he had entered the land in January, 2006 after coming from Kwale, but had not specified the size of the land he was claiming. He was referred to Paragraph 6 of his affidavit sworn on 13th September, 2021, where he had said that his relatives had been buried on the suit land. He admitted that he had not mentioned their names nor attached copies of certificates of death or burial permits. 19. PW - 1 stated that they had been cultivating on the land, as indicated on page 11 of his statement, planting cassava, maize, coconuts, among other crops. He referred to pages 31 to 37 which contained photographs of a shop, a house, semi-permanent structures, an unfinished permanent house without windows, and tree plantations. He confirmed that the photographs had been taken in August, 2021. 20. PW - 1 acknowledged that he knew Mzee Hassan Ali Dada, a resident and the 6th Plaintiff. He stated that Faith Wambua had reported Hassan to the police for starting construction of a mosque, which was later demolished after being reported at Bamburi Police Station. He was referred to the 1st Respondent’s documents dated 18th September, 2023, page 38, and to the statement by Hassan Ali Dada. He was also referred to page 52, which showed how Hassan Ali Dada had obtained a letter. PW - 1 confirmed that the letter bore his signature as the Village Elder and that he had said he lived at Kongwagera village. He admitted JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 11 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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that he had been a witness in the agreement though he had not prepared it. He added that the other witness was Jackson Kiponda, the 28th Plaintiff and chairman. 21. On page 53, PW - 1 confirmed that the committee had sold land to Hassan Ali Dada on 7th May, 2022, with committee members including Jackson and Mangaro. He was referred to his witness statement, paragraph 10, where Hassan Ali Dada had stated that he entered the land in year 2006, but PW - 1 acknowledged that the agreement showed he had bought in 2022. 22. PW - 1 stated that although they were claiming the land, there was a committee which had been selling portions to third parties. He denied that the committee had benefited financially from selling the land. He was referred to page 1 of the Defendant’s list of documents, which contained an advertisement for substituted service in “ELC No. 651 of 2011’ by Wilfred Wambua against Faith. He confirmed that there had been a court order issued on 28th November, 2013 requiring all people to leave the land and remove all structures. 23. Finally, he was referred to page 6, which showed that the land had been subdivided and taken up by Faith Wambua (four plots) and Najma. PW – 1 stated that he was not aware of the process of subdivision. C. Cross Examination of PW - 1 by Mr. Musyimi Advocate. 24. PW - 1 produced his Identity Card to the court. He was referred to the Authority to Plead dated 10th September, 2021. PW - 1 admitted that he had not brought copies of the Identity Cards of the Plaintiffs apart from listing their numbers. He stated that the JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 12 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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signatures could not be confirmed as belonging to the Plaintiffs without the Identity Cards. 25. PW - 1 was referred to the list of Plaintiffs starting from No. 29 to 49 on page 11 of the bundle. He conceded that he had not brought any land surveyor’s report to show the exact portions of land occupied by those individuals or to prove their presence on the land, though he had produced photographs. He was referred to the original summons dated 13th September, 2021, Exhibit RHS - 3, page 31. PW - 1 confirmed that the photographs had been taken in the year 2021. He stated that the shop depicted belonged to Jacob, but admitted that there was nothing on the photographs to prove ownership, as no name was indicated. He acknowledged that none of the photographs identified the specific owners, though he maintained that they had been taken from the suit land. 26. PW - 1 was referred to pages 26 to 30 of the Originating Summons, which contained a copy of the Certificate of Title. He admitted that the copy was not certified. He further stated that he had not filed a copy of the title for parcel No. 20948 belonging to Najma, nor for all the subdivisions. He explained that pages 17 contained a Certificate of Official Search, while pages 18 and 19 contained a Certificate of Title bearing a stamp of the Land Registrar. 27. PW - 1 reiterated that he had entered the land in January, 2006. He admitted that he did not have documentary proof of entry, but stated that he had constructed a Swahili semi-permanent house and had produced photographs to that effect. He was JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 13 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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referred to the Registrar of Titles entry for Land No. 20948 belonging to Najma. PW – 1 was shown the Google Map of November 2015 and confirmed that the boundary was visible. He was further referred to the 1st Respondent’s list of documents dated 15th June, 2023, page 53. He stated that he only saw cloudy pictures on the Google Map. 28. PW - 1 confirmed that the members of the committee referred to on pages 52 and 54 were the ones he had already mentioned by name. He stated that the land belonging to Najma was occupied by persons such as Bakari, Chari Joseph, among others. In total, he said there were 22 persons. He admitted that he had not brought any documents to prove their occupation apart from the photographs. D.Re - Examination of PW - 1 by Mr. Kenga Advocate. 29. PW - 1 stated that the photographs had been taken in year 2021, some of which were new while others were old, depending on the ability of the respective owners. He explained that Mr. Hassan Ali Dada had wanted to build a mosque and had entered the land in year 2006. 30. PW - 1 added that the portions of land varied in size, with some measuring approximately 50 by 80. PW - 1 further testified that Mr. Dada, who had intended to construct the mosque, had insisted on a sale agreement. He emphasized that nobody had objected to their identities being used in the agreement. He stated that the Google Map produced by the Defendants indicated that the Plaintiffs were the ones on the ground, even if the photographs did not clearly show the occupation. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 14 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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31. PW - 1 referred to page 4 of the documents, which bore the stamp of the Land Registrar, and reiterated that his statements mentioned the people occupying Najma’s land, numbering 22 in total. PW - 1 acknowledged that in the photographs they had not indicated the names of the individuals or specified which people were on the land. 32. On 23rd July, 2024 the Plaintiffs through her legal counsel Mr. Kenga marked their case closed. IV. The Case by the Defendants’ 33. The Defendants responded to the Originating summons through a 17 paragraphed Replying Affidavit and counter claim wherein the Affiant averred as follows:a. The Affiant, Faith Wambua of P.O. Box 84367-80100, Mombasa, and sued as the 1st Defendant, averred in response to the Originating Summons dated 13th December, 2021. b. The particulars of the Originating Summons and supporting affidavit of Bakari Hussein Siwa were denied. the c. She was the registered owner of all the suit properties and agreed with the contents of Paragraph 2 of the supporting affidavit of Bakari Hussein Siwa. She relied on copies of title deeds at pages 1 to 5 of the 1st Defendant’s List of Documents. d. The suit properties had been transferred to her from her deceased husband, who died on 9th September, 2017. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 15 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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e. After her husband’s death, they had utilized the suit properties for farming, had built a small farmhouse, and had placed a Caretaker over the properties. f. It was not true that the Applicants had occupied the suit properties for over twelve years. She asserted that the Applicants were notorious squatters who had invaded her parcels of land around the year 2019 when they violently demolished the farmhouse. g. She had severally attempted to evict the squatters who had erected illegal structures over the suit property in an attempt to disenfranchise her. She relied on the copy of the death certificate at page 6 of the 1st Defendant’s List of Documents. h. It was emerging as a serious uniform trend in Mombasa for squatters around Bamburi and Shanzu to invade properties due to economic growth in the area, especially in real estate, whereby squatters invaded land and later sold it for profit after abusing the judicial system to gain proprietary rights. i. She had reported the matter severally to Bamburi Police Station and that recently the squatters had been prevented from illegally erecting a mosque on her suit property after her concerted efforts to fight them off. She relied on copies of OB numbers and photographs of the suit property taken between November and December, 2022. j. She had never allowed the Applicants onto the suit property and considered them well-choreographed and seasoned squatters and land grabbers. She invited the Court to scrutinize their identities and claims vis-à-vis their individual occupation of any portion of the suit property. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 16 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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k. The Applicants had forcefully gained entry into the suit property and that there was no question of permission, since they had resisted eviction attempts even with the involvement of Bamburi Police Station and local leadership. l. She was a stranger to the purported Applicants and that their alleged authority granted to Bakari Hussein Siwa to represent them was a gimmick, illegal, and incapable of asserting any individual interest over her properties, of which she was the registered owner. 34. On the Counter - Claim, the 1st Defendant reiterated that at all material times she was the registered owner of the suit properties, namely: a) 21898/I/MN CR No. 76436. b) 21899/I/MN CR No. 76437. c) 21900/I/MN CR No. 76438. d) 21901/I/MN CR No. 76439. e) 21902/I/MN CR No. 76440. and that the Applicants had never been granted permission to occupy the suit premises. 35. The 1st Defendant averred that from the onset, the Applicants had forcefully gained entry into the suit property around year 2019 and had attempted to erect structures to create the impression that they had occupied the premises for over twelve years, which was not true. She indicated reliance on a survey report to be filed with leave of Court. The 1 st Defendant stated that she had made several attempts to evict the Applicants, but they had become rowdy and dangerous, and that it would JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 17 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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require an order of the Court to evict them and their agents or assigns from the suit property. The 1st Defendant deponed that she was a stranger to the purported Applicants. The 1st Defendant averred that the Applicants had not substantiated any of their claims and had fallen short of the threshold for adverse possession under the laws of Kenya. 36. The 1st Defendant prayed for Judgment against the Plaintiffs as follows:a) A Declaration that the 1st Defendant is the legitimate and legal owner of the is in arrears and in default of the loan repayment agreement plus interests accrued. b) A dismissal of the applicants originating summons dated 13 th September 2021 with cost. c) An order the applicants be evicted from the 1st Defendants suit properties and the OSC Bamburi Police Station to supervise the eviction. d) Cost of the suit. e) Any other or further relief that the court 37. The 1st Defendant called DW - 1 on 24 th July, 2024 but before that the Advocate for the 1st Defendant had the following remarks:A. Opening remarks by the 1st Defendant’s counsel Mr. Okoko Advocate. 38. The Learned Counsel, Mr. Okoko Counsel commenced by submitting that the case by the 1 st Respondent was not about a mere individual but about a casualty of the plunder arising from the squatter problem, which had led to the loss of her land. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 18 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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39. He stated that the 1st Respondent was before the Court to protect her property and that the Applicants’ claim amounted to an abuse of the law. He emphasized that persons in Kenya had a constitutional right to land. 40. The Learned Counsel argued that the ingredients necessary to establish adverse possession had not been proven, since the Applicants had forced themselves onto the land. 41. He maintained that the Applicants’ claim was purely theoretical and urged the Court to dismiss the suit. B. Examination in Chief of DW - 1 by Mr. Okoko Advocate. 42. DW - 1 was sworn and testified on oath in the English language. He was called WALID ABBAS, a citizen of Kenya and holder of the national identity card bearing al the particulars as stated during the hearing of the case. He resided in Kikambala. DW - 1 stated that he was a Land Surveyor attached to the Regional Survey Coast. He deponed that he had undertaken a geo-survey and prepared a report dated 31st May, 2023, which included images. He confirmed that the report could be used as evidence in the matter. The report was produced as 1st Respondent’s Exhibit No. 21, contained at pages 55 to 65 of the consolidated bundle of the 1st Defendant. C. Cross Examination of DW - 1 by Mr. Musyimi Advocate. 43. DW - 1 was referred to the Survey Report. He confirmed that the report contained satellite images. He stated that the Survey Plan used had been authenticated by the Director of Survey. 44. The witness was stepped down. The 1 st Defendant called DW - 2 who testified as follows:JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 19 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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A. Examination-in-Chief of the 1st Defendant DW - 2 by Mr. Okoko Advocate. 45. DW - 2 took oath and testified in Kiswahili language. She introduced herself as Faith Mulee Wambua, a citizen of Kenya and holder of the national identity card bearing the particulars as shown to Court during the hearing. She was born on 27 th July 1957, and residing in Machakos District, Mwala. DW - 2 stated that she was the 1st Defendant in the matter and had filed a Defence and Counter Claim. She deponed that she had recorded her witness statement on 3rd December, 2022 and a further statement on 18th September, 2023. DW - 2 averred that she wished to rely on her statements and the List of Documents dated and produced as 1st Defendant’s Exhibits Numbers 1 to 26, which were admitted into evidence. B. Cross - Examination of the 1st Defendant – DW – 2 by Mr. Musyimi Advocate.46. DW 2 testified that she had seen the Plaintiffs on the suit land during the Corona/COVID-19 pandemic. She stated that the land had first been registered in the name of her late husband. 47. The witness was substituted by M/s. Florence Wambua due to the incompetence by the witness. 48. On 11th December, 2024 the Counsel for the 1st Defendant made the following opening remarks:A. Opening remarks by Mr. Okoko Advocate:49. Mr. Okoko submitted that the Plaintiffs had not established their claim of adverse possession. He argued that the statutory period of time had not been met and that proof of occupation had not JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 20 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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been substantiated. Counsel emphasized that the 1 st Defendant was the registered owner of the property and had filed a Counter - Claim. He urged the Court to dismiss the Plaintiffs’ suit. B. Examination in Chief of DW - 1 by Mr. Okoko Advocate. 50. DW - 1 was sworn and testified in English. She was called FLORENCE WAMBUA. She introduced herself and stated that she was an Insurance Officer. She deponed having written a witness statement on 18th November, 2024. She testified that she was appearing on behalf of her sister, Faith Wambua, the 1 st Defendant, who was unwell. 51. DW - 1 averred that she wished to produce the statement of Faith Wambua dated 18th September, 2023 and have it adopted as evidence. She further stated that she had annexed various documents, twenty-six (26) in total, contained in the further list of documents dated 18th September 2023, which were produced as Defendant’s Exhibits 1 to 26. DW - 1 deponed that she had also filed a Power of Attorney dated 14 th October, 2024 and registered on 5th November, 2024, which was produced as Defendant’s Exhibit No. 27. 52. DW - 1 testified that she had visited the suit property in the year 2013 and again later, when she had gone to view the property owned by Faith Wambua and her husband, Wilfred Wambua David. DW - 1 referred to a court order and a newspaper advertisement, explaining that a lady named Sada Misai Kazungu had sued Faith Wambua over the suit property, and that a court order had been issued on 1st November, 2013 in “HCCC No. 651 of JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 21 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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2011”, eleven (11) years earlier. She stated that the suit property had subsequently been sub - divided. 53. DW - 1 further testified that she had interacted with squatters in the year 2017, and that structures on the land had been demolished through the intervention of the chief. She stated that in the year 2019, however, squatters began invading the land, coinciding with the death of her brother-in-law in 2017. C. Cross - Examination of DW - 1 by Mr. Kenga Advocate. 54. DW - 1 testified that the property had first been invaded in the year 2017 and that she had lodged a complaint at Bamburi Police Station regarding the invasion. She admitted that she did not have any evidence of the complaint or of the demolition, but stated that she believed the squatters had no right to the land. She explained that the first time she had gone to the land was in the year 2013, when she saw squatters there, though she did not know them. She added that when the first case was commenced, she had not yet been to the land. 55. DW - 1 stated that her sister had bought the land in the year 1980, but she did not know whether her sister had secured it, such as by fencing. She confirmed that her sister had caused the sub - division in the year 2013. She recalled that there had been a time when her sister’s husband had built a structure, but she did not have evidence of it. She reiterated that she did not know the squatters in 2017, noting that they were few at first but became many in 2019 during the COVID-19 pandemic. She admitted that she did not have evidence of any report made to Bamburi Police regarding the 2019 invasion. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 22 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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56. DW - 1 was referred to pages 28 to 54 of the record and confirmed that she had taken action in the year 2022 against the squatters. She was further referred to page 55, where the Land Surveyor had indicated that there was a house on the ground in the year 2015. DW - 1 stated that she did not know when the house had been constructed, though the Surveyor had said it was in the year 2015. She was referred to page 65, showing the year 2015 Google Map, and stated that she did not see any houses. On page 64, the Google Map for 2017, she said she saw houses but noted that there were no keys anywhere to show what they represented. She added that pages 55 to 67 of the Google Map did not show houses, graves, or other features. 57. DW - 1 testified that currently squatters were on the land. She confirmed that she had filed a counterclaim against the Plaintiffs, asserting that they were in occupation of the land illegally. She was referred to paragraph 8 of Faith Wambua’s statement, which indicated that the squatters had entered in year 2018. DW - 1 stated that, to her knowledge, they had entered in the year 2017. She added that she knew Teddy was a witness. 58. DW - 1 explained that after her sister became ill, she had been mandated to take care of the land. She stated that she had assigned someone to fence the property, but every time the fence was erected it was brought down. She admitted that she had not taken photographs because the fences were destroyed immediately. She described the invasion as occurring in chronological order, with squatters entering bit by bit. She JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 23 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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confirmed that she had relied on the statement of Faith Wambua. 59. DW - 1 stated that there had initially been only one squatter, but by the year 2017 many squatters had entered. She explained that it was her sister who had instructed people to take photographs. DW - 1 added that she herself would never go to the plot because the squatters would threaten to beat her before and after they had filed houses. She concluded by noting that there were situations where people upgraded structures from temporary to permanent. D. Cross - Examination of DW - 1 by Mr. Musyimi Advocate. 60. DW - 1 was referred to M/s. Sada and testified that she was the only person present on the land, and that there had never been fifty-six squatters as alleged. DW - 1 stated that after the court order had been issued, Wilfred began sub - dividing the land as he needed resources for his upkeep. She confirmed that she knew there had been a house built by Wilfred, but she did not know who had demolished it. 61. DW - 1 was referred to the set of photographs produced by the Plaintiffs and observed that there was no indication of fifty-seven people in those photographs. 62. DW - 1 testified that she had reported the matter in the year 2017 at Bamburi Police Station, but admitted that she did not have the record of the complaint. She added that Faith Wambua had reported the matter again in the year 2019. DW - 1 recalled that this was during the COVID - 19 pandemic, when restrictions were in place. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 24 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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E. Re - Examination of DW - 1 by Mr. Okoko Advocate. 63. DW - 1 testified that the Plaintiffs had filed a statement in court in 1993 by Mr. Bakari Siwa, who had stated that he entered the land in 2006. She noted that he had mentioned the years 2004, 2005, and 2006 as the period when the occupation had begun. DW 1 referred to the Surveyor’s report of 2015 and stated that it had shown only one structure on the land. She emphasized that in the conclusion of the report, the Surveyor had confirmed that there was only one structure. 64. DW - 1 further explained that the developments on the land had increased gradually with time. She referred to the Google Maps from years 2015 to 2017 and stated that she could not see any houses, which agreed with the Surveyor’s conclusion. 65. DW - 1 concluded by stating that she had not been served with any report that contravened the Surveyor’s findings. 66. The 1st Defendant called her second witness on 7 th March, 2025 wherein he testified as follows:A. Examination - in- Chief of DW - 2 by Mr. Okoko Advocate. 67. DW - 2 was sworn and testified in English language. He was called DAVID KAUNANJE WAMBUA, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing of the case. He introduced himself and stated that he was born on 20 th February, 1979. He stated that he resided in Toronto, Canada, and was Kenyan by nationality. DW - 2 testified that he had been born in Mombasa but had relocated to Canada in the year 2000. DW - 2 deponed JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 25 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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that he had recorded a witness statement dated 20 th June, 2023 and wished to rely on it as his evidence. He stated that he knew the suit property was located in Mwembelegeza, Bamburi, and that it belonged to his mother. He valued the property at between a sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3, 500, 000.00/=) million and Kenya Shillings Five Million (Kshs. 5, 000, 000.00/=), with dimensions of 50 by 100. 68. DW - 2 averred that the property was owned by his mother and that the people currently on it were trespassers and squatters. B. Cross-Examination of DW - 2 by Mr. Musyimi Advocate. 69. DW - 2 testified that it was in the year 2017 when he realized there were squatters on the land. He explained that he had come to Kenya to bury his father and, during that time, he saw illegal structures on the property. He stated that he had been advised not to confront the squatters for fear of violence. 70. DW 2 was referred to DW - 1’s testimony and confirmed that there had been a family house built by his father. He added that his father had kept goats there, which were sometimes eaten by pythons, and that the house had been vandalized gradually, bit by bit, by people. DW - 2 stated that by year 2017 he did not have sufficient finances and had to return to Canada to assist his ailing mother. He further testified that there had been a mosque being erected on the land, which he had reported to the police. 71. DW - 2 concluded by stating that it was not true that the Plaintiffs had been on the land since year 2006. C. Cross - Examination of DW - 2 by Mr. Kenga Advocate. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 26 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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72. DW - 2 testified that he had made one statement written by his lawyer dated 20th June, 2023, though it had been headed as a further statement. He stated that he had not been in Kenya in year 2006, but had come to Kenya in the years 2012, 2013, and 2014. He explained that the evidence of his travel was in his passport, though the stamped pages had not been produced in court. 73. DW - 2 stated that he had been told by his cousin, Teddy, that there were people creeping onto the land. He clarified that Teddy had not called him while he was in Canada, but had informed him when he came for the burial of his father. DW - 2 testified that the squatters had waited until his father fell ill before they began entering the land. He admitted that he did not have any evidence in the form of photographs to show that his father had a house on the property, though he recalled that they had lived in the house over weekends when he was a young man. 74. DW - 2 stated that Teddy, his cousin, had been in charge of the land for his father, but that this had been without payment. He admitted that he had no evidence of any formal engagement between Teddy and his father to act as caretaker of the land. DW - 2 was referred to the Land Surveyor’s report at page 57, which contained Google photographs showing structures on the land. He confirmed that the images showed the roof of a house. He was further referred to page 65, which contained images taken in year 2015, and stated that the structure appeared white and was from Plot MN/I/21900. He observed that the pictures appeared to show small structures. DW - 2 clarified that he had not taken the JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 27 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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photographs himself, but that they had been taken by a professional surveyor from the Government of Kenya. 75. DW - 2 concluded by confirming that squatters were currently on the land and that their occupation was illegal. D.Re - Examination of DW - 2 by Mr. Okoko Advocate; 76. Mr. DAVID KAUNANJE WAMBUA, testified. He was referred to the Surveyor’s report and stated that he had not seen any other survey report produced by the Plaintiffs showing the location where they lived or the sizes of the structures allegedly erected by them. DW - 2 explained that Teddy, his cousin, used to communicate with him, and that such communication did not have to be in writing. He added that Teddy had been asked by his father to go and live on the land. 77. The 1st Defendant called her 3rd witness who testified as follows:C. Examination in Chief of DW - 3 by Mr. Okoko Advocate. 78. DW - 3 was sworn and testified in Kiswahili. He introduced himself as Teddy Katana Taki, holder of Identification Card No. 22827499, and stated that he resided in Majaoni. 79. DW - 3 deponed that he had recorded a further witness statement dated June 2016/2023 and wished for it to be adopted as part of his evidence in the matter. B. Cross-Examination of DW - 3 by Mr. Musyimi Advocate. 80. DW - 3 testified that he knew Najma by sight and that she had bought the land from the owner. He stated that there had been a house on the property and that the owner had engaged him to take care of it. He explained that the previous caretaker had been misusing the house by brewing illicit liquor such as JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 28 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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chang’aa and mnazi, and that the caretaker had been removed in 2006, after which DW - 3 took over. 81. DW - 3 stated that he had kept goats on the property, but that the land was later invaded. He emphasized that squatters had not been present on the land in the year 2006, and that he had been there with his younger brother at the time. He testified that in years 2013 and 2014 the owner of the land had sub - divided it into five portions and transferred them. 82. He added that the family house had begun to be vandalized, with windows being removed, and that people had started referring to them as “watu wa bara” (people from upcountry) , claiming that the land did not belong to them. DW - 3 stated that this had occurred in year 2017. C. Cross - Examination of DW - 3 by Mr. Kenga Advocate. 83. DW - 3 testified that squatters had started getting onto the land in the years 2016 and 2017. He was referred to Paragraph 7 of his statement, where he had mentioned that people had begun calling them “watu wa bara” (people from upcountry) . He stated that he had never reported the theft of livestock to the police but had instead reported it to the area chief, though he admitted he had no proof. He explained that the chief had offered to take action, but he never saw any results. 84. DW - 3 clarified that the area was Mwembelegeza Location and not Bamburi. He stated that he had lived there as his only residence, and that during the day squatters would vandalize the windows, which he would report to the chief. He explained that at the time he was 22 years old and did not know that he could JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 29 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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report the matter to the police. He added that he had no phone, but he would communicate with relatives residing in Mombasa, including those of Wilfred. 85. DW - 3 testified that in year 2015 he had informed Florence Wambua, Wilfred’s aunt, of the invasion, and that she had offered to inform Wilfred’s father in Machakos and the young man who was in Canada. He recalled that the first time squatters came onto the land in year 2017, they had threatened them for being “watu wa bara.” He stated that they had vandalized doors and windows, but that they had replaced them with metallic parts and continued staying there. DW - 3 explained that the steps he had taken were to inform the son of the property about the invasion by squatters in year 2017, though he did not know what steps had been taken thereafter. 86. DW - 3 admitted that he had no proof of being a caretaker, as the arrangement had been purely verbal. He stated that he did not know the village elder of the area, but insisted that this did not mean he was lying. D.Re - Examination of DW - 3 by Mr. Okoko Advocate. 87. DW - 3 testified that not knowing the village elder did not make him a liar, and that there was no law requiring one to know the village elder. He stated that in year 2016 he had been threatened and had to flee from the land, as indicated in paragraph 8 of his statement. He added that at the time he had been with his brother, Sando Taki. 88. The 1st Defendant marked her case closed through her counsel Mr. Okoko Advocate on 7th March, 2025. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 30 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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V. The 2nd Defendant’s case 89. The 2nd Defendant/ Respondent responded to the claim through a Statement of Defence and Counter - Claim where she deponed that:a) Save and except what was herein expressly admitted, the 2nd Defendant denied each and every allegation contained in the Originating Summons dated 5th November, 2020 and the amended originating summons dated 18 th April, 2023, as if the same had been set out verbatim and specifically traversed seriatim. b) The 2nd Defendant admitted the descriptive parts of the originating summons dated 5th November, 2020 and the amended originating summons dated 18th April, 2023. c) The 2nd Defendant denied that the Plaintiffs were entitled to be declared proprietors of Plot No. 20948/I/MN, CR. 63882 by virtue of adverse possession, and put the Plaintiffs to strict proof thereof. d) More specifically, and further to paragraph 3 above, the 2 nd Defendant denied that the Plaintiffs resided, stayed, or occupied Plot No. 20948/I/MN, CR. 63882, and without prejudice to the above, denied that the Plaintiffs had resided, stayed, or occupied the said plot for a period of twelve years. 90. Reasons whereof, the 2nd Defendant averred that the Plaintiffs were not entitled to the costs sought and prayed that the Plaintiffs’ suit against her be dismissed with costs. 91. By way of Counter - Claim, the 2 nd Defendant, Najma Ali Ahmed, reiterated the contents of the foregoing Paragraphs of the JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 31 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Defence and counterclaimed against the Plaintiffs jointly and severally as follows: a. The 2nd Defendant repeated and reiterated the contents of Paragraphs 1 to 4 above. b. The 2nd Defendant averred that she had purchased the property from Christian Business Capital Network vide an agreement for sale dated 28th April, 2014. c. Prior to the sale, the 2nd Defendant averred that she had visited the property, seen the beacons, been shown the boundaries of the suit property, and had been satisfied that the property was vacant. d. Further to Paragraph 3 of the Counter - Claim, the 2 nd Defendant averred that upon inspecting the original title deed to Plot No. 20948/I/MN, CR. 63882, it showed that the property belonged to Wilfred Wambua David. However, Christian Business Capital Network presented her with an agreement for sale dated 28th October, 2013 whereby the said Wilfred Wambua David had sold the plot to them, though transfer had yet to be effected. e. The 2nd Defendant stated that via a transfer dated 12 th November, 2014, Wilfred Wambua David had effected transfer directly to her as instructed by Christian Business Capital Network. f. The 2nd Defendant stated that sometime in the year 2017 she had been informed by her agent that informal structures in neighbouring properties had mushroomed into the suit property and that trespassers were setting up informal structures on her land. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 32 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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g. The 2nd Defendant averred that this had marked the beginning of a vicious cycle of her making reports to the police for forcible detainer and the police evicting the offenders. h. The 2nd Defendant averred that her husband had intended to resolve the issue amicably, as the area was known to have “professional squatters” who entered vacant land, rented it out to poor families, and then instituted adverse possession proceedings i. Further to paragraph 6 above, the 2nd Defendant, through her agent, had entered into a Goodwill Agreement to resettle the persons who had entered the premises and to enable them to vacate the suit property, thereby restoring her possession. j. The 2nd Defendant averred that under the said agreement she had made a cash settlement of a sum of Kenya Shillings Eight Hundred Thousand (Kshs. 800,000.00/=) which had been acknowledged by, inter alia, Plaintiffs Nos. 2, 3, and 6. She stated that she would crave leave of Court to produce documents in support of her claim. k. The 2nd Defendant stated that since then, negotiations had not proven fruitful, as she had lost her money in the goodwill settlement, and in allowing the Plaintiffs further occupation of the suit property pending their evacuation in good faith, they had instituted a fictitious claim of adverse possession. l. The 2nd Defendant averred that the entire suit property, Plot No. 20948/I/MN, CR. 63882, was not occupied as yet and that there were no permanent structures on the premises. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 33 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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m. The 2nd Defendant averred that trespassed on the suit premises. the Plaintiffs had n. The 2nd Defendant relied on the following particulars of trespass on Plot No. 20948/I/MN, CR. 63882: a) Entering upon the property without consent or just reason; b) Erecting structures on the suit premises without authority or consent; c) Ignoring various notices of eviction from the 2nd Defendant and/or her agents; d) Purporting to let the premises to tenants without consent; e) Purporting authority; to collect rent from tenants without f) Purporting to sell portions of the suit premises without consent. o. The 2nd Defendant averred that there was no other suit pending between the parties regarding the suit property apart from the consolidated suits herein. p. The 2nd Defendant averred that this Honourable Court had jurisdiction to hear and determine the suit. 92. The 2nd Defendant, Najma Ali Ahmed, Counter - Claimed for Judgment against the Plaintiffs jointly and severally as follows: JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 34 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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a. A declaration that the 2nd defendant one NAJMA ALI AHMED is the sole/actual/beneficial and registered owner of the suit property known as plot number 20948/I/MN being CR.63882; b. A declaration that the Plaintiffs have trespassed on the 2 nd defendant one NAJMA ALI AHMED’s Property being plot number 20948/I/MN being CR.63882; c. A permanent injunction do issues against the Plaintiffs, jointly and severally, their agents, servants, their assignees or anyone claiming through them from continuing with an construction, developments, subdivisions, sales, transfer or undertaking any kind of conveyance in the suit property or in any way from entering or interfering with the Plaintiff’s quiet possession and development in the suit property being plot number 20948/I/MN being CR.63882; d. A mandatory order do issue as against the Plaintiffs jointly and/or severally to demolish and remove of all illegal and offending structures and debris that are plot 20948/I/MN and in default the 2nd Defendant one NAJMA ALI AHMED be at liberty to demolish and remove all the illegal and offending structures and debris within plot number 20948/I/MN being CR.63882at the plaintiffs’ costs; e. The Officer in Charge of Bamburi Police Station to ensure peace and security is maintained in execution of all the orders herein; f. General damages for trespass and illegal occupation of the Suit Property; g. Costs of this Suit: 93. The 2nd Defendant called her witness on 14 th March, 2025 at 10.30 am who testified as follows:A. Examination - in - Chief of the 2nd Defendant’s DW-1 by Mr. Musyimi Advocate. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 35 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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94. DW - 1 was sworn and testified in Kiswahili. She was called NAJMA ALI AHMED. She introduced herself and stated that she resided at Bodeni, Old Town, the County of Mombasa. She stated that she was a business lady operating at Marikiti. DW - 1 deponed that on 4th March, 2022 she had recorded a witness statement and wished to rely on it as part of her evidence in support of the case. She further testified that she had filed a Replying Affidavit in 2022. She explained that on 4th March, 2022 she had filed a list of nine (9) documents, which she wished to produce as 2nd Defendant’s Exhibits Nos. 1 to 9. Later, on 15 th June, 2023, she filed one additional document, produced as Defendant’s Exhibit No. 10. Finally, on 12 th June, 2023, she filed two more documents, produced as Defendant’s Exhibits Nos. 11 and 12. 95. DW - 1 testified that she had purchased the suit land on 28 th April, 2014, at which time it had been a bushy area. She explained that there had been two ( 2 ) files consolidated with the present one. She recalled that they would drive to the land and then walk to it. She stated that in the year 2018 they began to see semi-permanent permanent houses. She houses and identified her two foundations land as Plot of No. 20948/1/MN, CR. 6382. 96. DW - 1 testified that after seeing these structures, they had reported the matter to the Chief, who called the squatters and spoke to them. She stated that the squatters demanded compensation. Referring to Exhibit 5, she explained that it was a Goodwill Agreement with the squatters, under which they had JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 36 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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been paid a sum of Kenya Shillings Eight Hundred Thousand (Kshs. 800,000.00/=) and had agreed to vacate the house. She emphasized that at that time there had been no people on the ground. 97. DW - 1 stated that although the squatters had agreed to vacate the land after being paid, unfortunately in the year 2020, due to the upsurge of COVID-19 pandemic, they could not visit the land. By the time they returned, the squatters had proceeded with extensive construction. She testified that they reported again to the Chief, but the squatters were uncooperative. She explained that the Chief had advised them to report to the police, which they did, obtaining an O.B. number. She stated that the squatters were called but demanded an additional sum of Kenya Shillings Four Hundred Thousand (Kshs. 400,000/-) making a total of a sum of Kenya Shillings One Million Two Hundred Thousand (Kshs. 1,200,000/=), which they could not pay. DW -1 emphasized that she did not know the squatters personally. 98. She testified that from the year 2004 there had been no people on the land, and therefore the Plaintiffs’ claim that they had been there since 2006 was not true. She referred to the Google Map in support of this position. DW - 1 concluded by stating that she had filed a Counter - Claim dated 12 th June, 2013, seeking that the squatters leave the suit land, as it was her property. B. Cross-Examination of DW - 1 by Mr. Okoko Advocate. 99. DW - 1 testified that she had bought the land from Christian Business Network, who had themselves purchased it from Wilfred Wambua David. She explained that when she bought the JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 37 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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property, she had decided to have it transferred directly to her name. She confirmed that she knew Faith Wambua was the wife of Wilfred Wambua David, and that she had known them at the time of the transaction. DW - 1 stated that the transfer had been effected on 12th November, 2014 from Wambua to herself. She emphasized that there had been no squatters on the land at the time she purchased it. She testified that she had bought the property for a sum of Kenya Shillings Twelve Million (Kshs. 12,000,000/=), having inspected it with her surveyor, and confirmed that there had been no people present. She added that she could not have spent such a colossal amount of money on land that was occupied, and that due diligence had been conducted. 100. DW 1 explained that it was only later, in 2018 and 2020, that they began to see people on the land. Since the squatters refused to vacate, she stated that they had decided to sign a Goodwill Agreement with those present. She referred to the agreement and named those who had signed on behalf of the squatters, including Bakari Siwa, Omar Jeffwa, and Reuben Jacob Iyanda, who were among the Plaintiffs. She clarified that the agreement had been executed on the land, though the Chief had not been present, and that she had paid them a sum of Kenya Shillings Eight Hundred Thousand (Kshs. 800,000.00/=). 101. DW - 1 testified that although she had invested in the property, the squatters had begun threatening her life and her investment. She explained that, as a woman, she had feared becoming part of the statistics of victims, and therefore had JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 38 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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sought to protect herself financially. She stated that the squatters had extorted money from her. She confirmed that she had visited the land and found it full of both semi-permanent and permanent houses. She added that the squatters had demanded a further sum of Kenya Shillings Two Million Five Hundred Thousand (Kshs. 2,500,000/=), but emphasized that they did not hold any title deed to the property. C. Cross - Examination of DW - 1 by Mr. Kenga Advocate. 102. DW - 1 was referred to the Supporting Affidavit dated 19 th November, 2020, which had been attached to the Goodwill Agreement. She confirmed that paragraph 5 of the affidavit stated that when she was surveying the land in year 2018, she had been informed by Mr. Abdalla that there were squatters on the land. She testified that she had been told her land had been invaded, explaining that squatters had been passing by in year 2017 but had entered in 2018. 103. DW - 1 stated that she had paid money because the squatters had put up both permanent and semi-permanent structures, and that they would only appear when they saw her. She explained that she had decided to pay them to avoid losing her investment, even though she knew there was a court of law. She added that since year 2020, the squatters had remained on the land, which had led her to approach the Chief and the police. She testified that she had decided to pay them because they were like thieves in the house. 104. DW - 1 referred to the Google Map prepared by David Mwangi, a Land Surveyor. She explained that the year 2015 Google Map JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 39 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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captured the mother plot, and that page 65 of the 1 st Respondent’s bundle dated 18th September 2023 showed five plots: Nos. 21898, 21899, 218900, 218901, and 218902. She clarified that her plot, No. 20948, was not among them, but was next to Plot No. 218900, where some structures appeared. She emphasized that she had bought her plot in 2014, when there had been no squatters. She added that her plot was next to Plot No. 21900, which had structures, but insisted that at the time of purchase there had been none. 105. DW - 1 testified that the boundary at the lower side of her Google Map differed from that shown on page 65. She noted that there was one structure at the bottom line, but stated that it did not affect her. She explained that, in her view, her plot was on the right-hand side and not on the road. She added that the white object seen on the map was not a house, and reiterated that when she bought the land in 2014 there had been no structures. 106. DW - 1 stated that she had stored information about the land on her phone, but that phones tend to lose data over time. She confirmed that by year 2022 there were people on the land, as shown in photographs, and that the houses were all permanent. She emphasized that in the years 2015 and 2016 there had been no people, and that squatters had only started entering the land towards 2017 and 2018. 107. DW - 1 observed that the photographs did not contain any keys explaining their descriptions. She stated that for the year 2017, the white objects shown were structures. She added that she JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 40 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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would not be calling a Land Surveyor, and confirmed that she had not filed any certificate for the Surveyor nor his report. D.Re - Examination of DW - 1 by Mr. Musyimi Advocate. 108. DW - 1 testified that she knew the objects seen on the land were structures because she had gone there herself. She explained that her plot was situated on the right-hand side, while that of Faith Wambua was on the left. She stated that on her plot there had been no people in the year 2015. DW - 1 added that she had visited the land in the years 2016 and 2017, and at those times there had been no people present. She emphasized that there was nothing wrong in being told that people were entering the land. She recalled that towards 2017, a close family friend, Mr. Abdalla, had called them and informed them that people were entering the land, though she maintained that their intentions were wrong. 109. DW - 1 testified that she had taken photographs of the land and confirmed that she held a title deed and agreement as proof of ownership of the property. 110. The 2nd Defendant marked her case closed through her counsel on record Mr. Musyimi Advocate on 14th March, 2025. VI. Submissions 111. Upon the conclusion of both the Plaintiff’s case and that of the 1st and 2nd Defendants on 14th March, 2025, the Court wishes to sincerely express its utmost gratitude to learned counsels — Mr. Kenga, Mr. Okoko, and Mr. Musyimi Advocates — for their diligence, resilience, and dedication in handling this matter. The Court therefore proceeded give the following directions:JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 41 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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a) That the two consolidated files, ELC No. 189 of 2021 and ELC No. 204 of 2010, be placed together for ease of reference by the Court. b) That the 2nd Defendant was granted leave to have all their bundles of documents properly complied and placed on record by 20th March, 2025. c) That the Plaintiff was granted 30 days’ leave to file and serve written submissions. d) Upon service, the 1st and 2nd Defendants were granted 21 days leave to file and serve their written submissions. 112. Pursuant to the directives of the Honourable Court judgment was reserved to be delivered on notice. A. The Written Submissions by the 1st Defendant/Respondent 113. The 1st Defendant/ Respondent through the Law firm of Messrs. Kihoro & Company Advocates filed her submissions dated 11 th May, 2025. Mr. Okoko Advocate submitted that the 1 st Respondent, Faith Wambua, is the registered owner of the suit properties, specifically: a. Plot No. 21889/1/MN, CR NO 76436 b. Plot No. 21889/11/MN, CR NO 76437 c. Plot No. 21900/1/MN, CR NO 76438 d. Plot No. 21901/1/MN, CR NO 76439 JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 42 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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e. Plot No. 21902/1/MN, CR NO 76440 as evidenced by the copies of the title deeds annexed in the pleadings. These properties have been in her family since the 1980s, initially co-owned with her late husband, Wilfred David Wambua. 114. The couple used the land for agricultural purpose. The land was a cornerstone of their livelihood, and they maintained a small farm house on Plot No. 21889/1/MN, built in 1995, where they stored farm tools and occasionally stayed during planting seasons. It was the evidence of the 1ST Respondent that after subdivision, portion number 20948/1/MN CR NO 63882 was sold to the 2nd Respondent for purposes of financing the 1 st Respondent’s husband medical expenses who was diabetic. The Applicants, Bakari Hussein Siwa and 47 others, have instituted this suit through Originating Summons dated 13 th September 2021, claiming to have acquired title to the suit properties by adverse possession. They allege to have entered the suit properties between Respondent’s 2003 permission or and 2006 without consent, the asserting 1st open, continuous, and uninterrupted possession for over 12 years (1 st Plaintiff’s witness statement paragraphs 5 to 55). 115. The Applicants collectively assert that their possession had been open, continuous, and uninterrupted for over 12 years, thereby satisfying the requirements for adverse possession under Kenyan law. The Learned Counsel submitted that the Applicants’ claim was baseless and fails to meet the stringent legal requirements for adverse possession under Section 7 of the Limitation of Actions Act, Cap. 22. Their JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 43 of 112 possession was HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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neither continuous, exclusive, nor hostile, and it was interrupted by the 1st Respondent’s actions, including a court order for eviction issued on 28th November, 2013 (Consolidated Bundle, Page 2), as well as subsequent actions in the years 2019–2022, such as police reports and demolition of an illegal mosque constructed by the Applicants. Furthermore, the Applicants’ conduct marked by violence such as demolishing the 1st Respondent’s farm house in year 2019, fraud by attempting to sell the land in 2022, and profiteering disentitles them to the equitable remedy of adverse possession. 116. The 1st Respondent, a widow who is currently unwell, invokes the equitable jurisdiction of this Honourable court to protect her from the Applicant’s opportunistic and unconscionable attempt to deprive her of her rightfully owned property. It is our submission that granting the Applicant’s claim would not only violate her constitutional rights but also set a dangerous precedent, encouraging unscrupulous litigants to vulnerable landowners under exploit the guise of land adverse possession. 117. On the Legal framework. The Learned Counsel asserted that the doctrine of adverse possession in Kenya is governed by the provision of Sections 7, 13, 17 and 38 of the Limitation of Actions Act, Cap. 22. The Learned Counsel relied on the case of “Wambugu – Versus - Njuguna [1983] KLR 172” , which outlines elements of adverse possession as:“For a person to succeed in a claim for adverse possession, he must show JUDGMENT: ELC NO. 189 OF 2021 (O.S.) that his possession Page 44 of 112 was open, notorious, HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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continuous, exclusive, and adverse to the rights of the true owner for a period of 12 years.” 118. These elements have been consistently applied in Kenyan jurisprudence and are directly applicable to the Applicants’ claim in this case. The Land Registration Act, 2012, under Section 25(1), protects the rights of a registered proprietor, stating: “The rights of a proprietor… shall not be liable to be defeated except as provided in this Act…” 119. Adverse possession is an exception, but it must be strictly proven. Section 26 provides that a certificate of title is conclusive evidence of proprietorship, subject to challenges on grounds such as fraud, which the Applicants have not established. Article 27 of the Constitution of Kenya, 2010, guarantees equality before the law and prohibits discrimination on grounds such as sex or social status. The Applicants’ targeting of the 1 st Respondent, a sick widow, constitutes discriminatory conduct that violates this provision, as they have exploited her vulnerability Article to advance their claim. 40 of the Constitution of Kenya, 2010, guarantees the right to property. Adverse possession must not be used to unjustly deprive a registered owner of their constitutional rights under Article 40, especially where the claimant’s conduct is fraudulent or unlawful. This principle was crucial in this case, given the 1 st Respondent’s status as a vulnerable widow and the Applicants’ fraudulent conduct. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 45 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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120. The Learned Counsel relied on the following issues for determination:a) Whether the Applicants’ possession of the suit properties was continuous and uninterrupted for the statutory period of 12 years. b) Whether the Applicants’ possession was exclusive and adverse to the 1st Respondent’s rights, considering her continued use and access to the land. c) Whether the Applicants’ violent and fraudulent conduct disentitles them to the equitable remedy of adverse possession. d) Whether the Applicants’ claim violates the 1 st Respondent’s constitutional rights under Article 40 of the Constitution, especially given her vulnerability as a widow. e) Whether the Applicants’ collective claim is procedurally defective due to lack of specific evidence and a survey report. f) Whether the 1st Respondent is entitled to the reliefs sought in her Counter - Claim, including a declaration of title, eviction, and damages 121. On whether the Applicants’ possession of the suit properties was continuous and uninterrupted for the statutory period of 12 years. The Learned Counsel argued that continuous and uninterrupted possession for 12 years was a fundamental requirement for adverse possession under Section 7 of the Limitation of Actions Act, Cap. 22. The Applicants’ possession of the suit properties was neither continuous nor uninterrupted. The evidence presented in court clearly demonstrates that the Defendants took active steps to assert their rights over the properties, relevant including lodging reports with the authorities, such as the police, and initiating attempts to evict JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 46 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the Applicants, who were progressively encroaching upon the suit properties. 122. From the evidence adduced in court, it is apparent that in the years 2013 and 2014, there was unimpeded physical access to and inspection of the suit property by licensed surveyors. During this period, boundary markers and beacons were placed on the land. Notably, a letter of instruction/authority to conduct a survey, dated 18th September, 2013, was issued, and there exists accompanying correspondence and receipts between the surveyors and the 1st Respondent. The survey culminated in the preparation of a deed of partition, as evidenced by a letter dated 6th November, 2014. This deed of partition was duly registered and accompanied by original title documents and a certificate of subdivision. It is important to note that these activities took place several months after a court order had been issued for the eviction of individuals unlawfully occupying the suit property while purporting to claim rights through adverse possession. 123. The court order dated 28 th November, 2013 constituted a significant interruption in the Applicants’ alleged possession, as it demonstrates that the 1st Respondent actively asserted her rights over the suit properties. The Court of Appeal in the case of:- “Githu – Versus - Ndeete [1984] KLR 776” , cited in “Otieno – Versus - Odote & another (Environment & Land Case 02 of 2021)” held that: “Time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his rights or when his right is JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 47 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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admitted by adverse possession. Assertion occurs when the owner takes legal proceedings or makes an entry into land.” 124. The year 2013 eviction resets the clock for adverse possession. The 1st Respondent’s Witness Statement (paragraph 15) and the evidence adduced in court further states that the Applicants only returned to the suit properties during the COVID-19 pandemic (around year 2020), due to her frail health. This means that, at the time of filing the Originating Summons in September, 2021, the Applicants had been in possession for less than 2 years since their re-entry far short of the 12-year requirement. 125. The High Court in the case of:- “Kabogo – Versus - Kenya National Highways Authority & 3 Others; Chief Land Registrar & 3 Others (Interested Parties) (Environment & Land Case 7 of 2021) [2024] KEELC 5512 https://kenyalaw.org/caselaw/cases/view/295989/” held that: “Adverse possession accrues to land and not title, and unless the Respondent took steps to evict the Applicant from the suit land, which he did not, the mere act of claiming ownership on title does not stop time from running.” 126. The 1st Respondent did take steps to evict the Applicants in the year 2013, thereby interrupting their possession. Furthermore, the 1st Respondent’s Witness Statement and the evidence adduced in court revealed that in the years 2021 and 2022, the police from Bamburi Police Station intervened to stop the Applicants from constructing a mosque on the suit property. This intervention was another assertion of the 1 st Respondent’s rights, further interrupting the alleged adverse possession. The JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 48 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Court of Appeal in the case of:- “Mtana Lewa – Versus - Kahindi Ngala Mwagandi [2015] eKLR, cited in Environment & Land Case E005 of 2023”, reaffirmed that:“Any act by the owner to recover possession, including involving law enforcement, interrupts the adverse possession period, as it negates the claimant’s assertion of exclusive control.” 127. The Applicants claim to have been in possession since the year 2006. However, this claim is directly contradicted by the year 2013 eviction, which reset the clock for adverse possession. The High Court in the case of:- “Mwataamu & 3 Others – Versus Carlita Limited & 4 Others (Environment & Land Case 2023) [2024] KEELC E006 of 5447 (KLR) http://kenyalaw.org/caselaw/cases/view/295703/” held that: “For this Court to determine whether the Plaintiff herein has satisfied the ingredients questions must be for adverse possession, these answered: How did the Applicant take possession of the suit property? When did he take possession and occupation of the suit property? What was the nature of possession and occupation? How long has the applicant been in possession of the land?” 128. The Learned Counsel averred that the Applicants had failed to provide a clear timeline of continuous possession post 2013, rendering their Moreover, claim unsustainable. the 1st Respondent’s consistent engagement with the suit properties, such as paying land rates as evidenced in the list of documents and documents produced and further involving her nephews to chase squatters, demonstrates that the Applicants’ possession was neither exclusive nor uninterrupted. The High Court in the JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 49 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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case of:- “Atika (Suing as the Legal Representative of the Estate of Rispa Atika) & Another – Versus - Ombat & 2 Others (Environment and Land Appeal E010 of 2023) [2023] KEELC 21237 (KLR) http://kenyalaw.org/caselaw/cases/view/272575/” held that: “To make a possession adverse, there must be an entry under a color of right claiming title hostile to the true owner and the world, and the entry must be followed by the possession and appropriation of the premises to the occupant’s use, done publicly and notoriously.” 129. According to the Learned Counsel, the law on adverse possession, as codified under the provision of Section 7 of the Limitation of Actions Act, Cap. 22 and interpreted by the superior courts, requires that a claimant demonstrate actual, open, exclusive, continuous, and uninterrupted possession of the land for a minimum period of twelve (12) years. This possession must be hostile to the title of the true owner and exercised without force, secrecy, or permission. In the present case, the Applicants have failed to prove that their occupation of the suit properties met this legal threshold. The evidence on record, including the the year 2013 eviction order, confirmed survey activities, the deed of partition, and consistent interventions by the 1st Respondent including police reports and attempts to remove the Applicants clearly show that possession was neither continuous nor uninterrupted. 130. On whether the Applicants’ possession was exclusive and adverse to the 1st Respondent’s rights. The Learned Counsel relied on the provision of Section 13 of the Limitation of Actions Act, Cap. 22 requires that possession be adverse to the owner’s JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 50 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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title, meaning it must be inconsistent with the owner’s rights and without their consent. The Applicants’ possession was neither adverse nor exclusive of the 1 st Respondent’s rights. The Applicants’ occupation was opportunistic, exploiting the 1 st Respondent’s vulnerabilities as a sick widow. Following her husband’s death in 2017, the 1 st Respondent was grieving and financially strained, a situation worsened by her severe illness in 2020 during the COVID-19 pandemic. The Applicants, aware of her weakened state, intensified their trespass during this period, demolishing her farm house in 2019 131. The Learned Counsel relied on the case of “James Maina Kinya – Versus - Gerald Kwendaka [2018] eKLR” where the High Court held: “Possession that arises from exploiting the owner’s vulnerabilities, such as illness or bereavement, cannot be deemed adverse.” 132. The Applicants’ possession was not notorious, as they failed to give the 1st Respondent clear notice of their adverse claim. As a sick widow, the 1st Respondent was incapacitated and unable to monitor her land effectively during her illness, and the Applicants exploited this vulnerability to encroach covertly.it is evident that there was a power of attorney issued to the 1 st Respondent’s sister to take charge of the suit property. Florence Wambui, a sister to the 1 st Respondent, produced an agreement dated 27th October 2017 between herself and one Eric Mwasa for the construction of a fence on the suit property. This agreement is clear evidence that the 1st Respondent remained in control JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 51 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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and continued to exercise authority over the suit property as of the year 2017. It is therefore evident that the 1 st Respondent was still in control and had exclusive possession of the suit property at that time. 133. In the case of:- “Phyllis Wanjiru Kamau – Versus - Wilson Gichuhi Gachagwe & 2 Others [2019] http://kenyalaw.org/caselaw/cases/view/172829” , the KLR High Court held:“A claim of adverse possession cannot succeed where the claimant’s occupation is not inconsistent with the owner’s title.” 134. The 1st Respondent’s visits and use of the land negate exclusivity. From the evidence adduced in court, including the survey ground report, satellite imagery for Plot Numbers MN/121/121989 –21902, and Google aerial images spanning the years 2015 to 2023, it is evident that the current structures on the suit property were not in existence prior to recent years. Specifically: page 65 shows the suit property in 2015 with minimal development; page 64 reflects limited structures in 2017; page 63 confirms the land was largely vacant; page 62 illustrates sparse development in 2018; page 61 shows slightly more development in 2019; page 60 indicates very few houses in 2020; page 59 and 58 show increasing development in 2021 and 2022 respectively; and page 57 presents a fully developed state with multiple houses as of 2023. 135. This progressive substantial timeline conclusively demonstrates that occupation and construction on the suit property JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 52 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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only began in recent years. The evidence, as contained in the consolidated bundle of documents filed by the 1 st Respondent, confirms that the Applicants’ alleged long-term possession is not supported by physical developments on the ground, thereby undermining their claim for adverse possession. 136. The Learned Counsel averred that possession that is permissive or tolerated by the owner cannot be considered hostile for the purposes of adverse possession. This applies to the 1st Respondent’s tolerance during her husband’s illness. Hostile possession requires a clear intention to dispossess the owner, which cannot be inferred where the owner has allowed temporary occupation. The 1st Respondent and her late husband used the suit properties for agriculture until the year 2014, negating the Applicants’ claim of exclusive possession since 2004. Her visits in year 2019 – 2021 further undermine exclusivity and the same is also corroborated that the Applicants further invaded that space during the COVID-19 Pandemic. 137. The Applicants’ possession may have been tolerated during the period leading up to and following the 1 st Respondent’s husband’s death in 2017 and during the COVID-19 restrictions in 2020. Her active resistance since 2019 negates hostility. 138. It was their submissions from the totality of the evidence presented, that the Applicants’ possession of the suit property was neither exclusive nor adverse to the 1 st Respondent’s rights. Their occupation arose not from a clear and hostile claim of right, but rather from opportunistic actions JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 53 of 112 during HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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periods of vulnerability particularly faced by the 1st Respondent, following her husband’s death and during her illness. The 1st Respondent, through herself and her sister, continued to exercise control over the land, including commissioning construction works and encroachments, as confirmed by documentary satellite imagery showing only recent resisting evidence and development. The Applicants’ presence was at best tolerated and intermittent, lacking the notoriety, hostility, and exclusivity required under Section 13 of the Limitation of Actions Act and as interpreted by binding precedent. Consequently, their claim for adverse possession cannot succeed on this ground. 139. On whether the Applicant’s violent and fraudulent conduct disentitles them to adverse possession, the Learned Counsel asserted that the Applicants’ conduct is tainted by fraud and illegality, disentitling them to the equitable relief of adverse possession. The Applicants are part of a syndicate of squatters engaging in a gimmick to illegally acquire her land. The Applicants’ history of similar actions in the 2010-2013 demonstrates a pattern of fraudulent behavior aimed at dispossessing the 1st Respondent of her land. 140. Adverse possession was an equitable remedy, requiring claimants to act equitably. A claimant who used force or fraud to maintain possession could not benefit from the equitable doctrine of adverse possession. The Applicants’ demolition of the farm house and fraudulent land sale disqualify them. In the case of:- “Mombasa Teachers Co - operative Savings & JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 54 of 112 Credit HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Society Limited – Versus - Robert Muhambi Katana & 15 Others [2018] eKLR”, the Court of Appeal stated:“The onus is on the person claiming adverse possession to prove that he had used the land nec vi, nec clam, nec precario for the prescribed period” 141. The Applicants’ use of force violates this principle. From the evidence adduced in court, it is apparent that there was an attempted illegal construction of a mosque on the suit property, which was sanctioned by one Ali Hassan, the 6th Applicant. witnessed by Mangaro Kalume (43 rd Applicant), This act was Jackson Gandi (28th Applicant), Applicant). The facts suggest a and Khamisi Kithi (41st coordinated scheme by the Applicants, under the guise of adverse possession, to exploit the suit property for personal financial gain. Ali Hassan is shown to have entered into an agreement dated 7 th May, 2022, under which he made payments to individuals identified as squatters. These individuals are also parties to the current suit. The conduct of the Applicants points to a fraudulent scheme targeting unsuspecting simultaneously asserting members a of baseless the public, claim of while adverse possession over the 1st Respondent’s land. It was both legally and morally untenable that such parties now sought to benefit from their own wrongful acts. 142. The Applicants’ actions are discriminatory, targeting the 1 st Respondent specifically because of her vulnerability as a sick widow. Following her husband’s death in 2017, the 1 st Respondent was left alone to manage her affairs, a situation JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 55 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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compounded by her illness in the year 2020. The Applicants, aware of her weakened state, saw an opportunity to encroach on her land, exploiting her inability to defend her rights. This conduct violates Article 27 of the Constitution of Kenya, 2010, which prohibits discrimination. Actions that target vulnerable persons, such as widows, to deprive them of their property violate the principles of equality and non-discrimination under Article 27. 143. Fraudulent conduct, such as attempting to sell land without legal authority, disentitles a claimant from the equitable relief of adverse possession. The Applicants demolished the 1st Respondent’s farm house in 2019 and constructed an illegal mosque in 2022 demonstrating violent and unlawful conduct. On 7th May, 2022, they entered into a fraudulent agreement to land sales sell portions of the suit property further evidencing their unconscionable behavior. The Applicants’ violent and fraudulent conduct disentitles them to the equitable remedy of adverse possession, safeguarding the 1 st Respondent’s interests. 144. On whether the Applicants’ claim violates the 1 st Respondent’s constitutional rights. The Learned Counsel relied on the provision of Article 40 of the Constitution protects property rights. In the case of:- “Joseph Gachumi Kiritu – Versus - Lawrence Munyambu Kabura [1996] eKLR”, the Court of Appeal stated: “The right to property is sacrosanct, and any claim that seeks to deprive an owner of their land must be scrutinized with utmost care.” JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 56 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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145. This protects the 1st Respondent’s rights as a widow. In the case of:- “Haro Yonda Juaje – Versus - Sadaka Dzengo Mbauro & Kenya Commercial Bank [2014] eKLR”, the High Court stated: “The Constitution guarantees the right to property, and courts must ensure that vulnerable individuals are not stripped of their land through opportunistic claims.” 146. This directly applies to the 1st Respondent’s vulnerability. Adverse possession claims that target vulnerable owners, such as widows, must be approached with caution to uphold constitutional protections under the provision of Article 40. The court has a duty to protect property rights under Article 40, particularly where the claimant’s actions exploit personal circumstances. The Applicants the owner’s exploited the 1 st Respondent’s vulnerability as a widow, particularly following her husband’s death in 2018 and during the COVID -19 restrictions in 2020. Their fraudulent attempt to sell the land in 2022 (Consolidated Bundle, Page 25) violates her constitutional rights. 147. It was their submissions that the Applicants’ claim violates Article 40 by exploiting the 1st Respondent’s vulnerability, necessitating the protection of her constitutional rights. 148. On whether the Applicants’ collective claim was procedurally defective. The Learned Counsel averred that in the case:“Christopher Kioi & Another – Versus - Winnie Mukolwe & 4 Others [2018] eKLR http://kenyalaw.org/caselaw/cases/view/148151/” the High Court stated: “In a collective claim for adverse possession, each claimant must provide specific evidence of their possession, failing which the claim is defective.” JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 57 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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149. The Applicants’ lack of specific evidence renders their claim defective. An applicant must provide a clear delineation of the land they claim through adverse possession, typically through a survey report, to avoid speculative claims. The Applicants’ failure to provide a survey report undermines their claim. Collective claims lacking individualized evidence of possession for each claimant are procedurally flawed and cannot succeed. The absence of a survey report in an adverse possession claim creates ambiguity, rendering the claim liable to dismissal. The Applicants failed to provide a survey report to delineate the specific portions of the suit properties they occupy. They also failed to provide specific evidence for each of the 48 claimants, with only vague assertions of possession. 150. The High Court in “Oduor (Suing as the Personal Administrator of the Estate of Lucas Oduor Osowo - Deceased) v Odhiambo & Another (Environment & Land Case E005 of 2021) [2024] KEELC 1061 (KLR) http://kenyalaw.org/caselaw/cases/view/282263/” held that: “The Applicant’s averments were not supported by any evidence and/or corroborated by any witnesses… It is not possible for one to determine, in the absence of evidence as to the exact date of last installments paid by the respondent and possibly the amount thereof, the exact date when possession of land by the respondent became adverse.” 151. No other witness in court was present to assert the allegations of the Applicants despite the fact that they were 47 in number. The 1st Respondent’s title to the suit properties remains indefeasible, and the Applicants have failed to adduce cogent JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 58 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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evidence to displace it. The Court of Appeal in the case of:“Maulo & Another – Versus - Oduori (Application 16 2021) [2022] KESC (E026) of 22 (KLR) http://kenyalaw.org/caselaw/cases/view/233321/” held that: “Adverse possession does not automatically merit certification as a matter of general public importance, underscoring that such claims must be rigorously proven.” 152. The Applicants have also failed to provide documentary evidence, such possession, as photographs or receipts, to prove their relying instead on vague Applicants’ collective claim, involving 48 assertions. The individuals, lacks specificity regarding the portions of land each claimant occupies. The Applicants have not demonstrated that each claimant has been in possession for 12 years or established their locus standi. Each claimant in a collective adverse possession claim must independently prove their possession and locus standi, failing which the claim could not succeed. 153. The Applicants’ collective claim for adverse possession was procedurally defective and cannot succeed. Each claimant was required to provide clear and specific evidence of their individual possession, including the precise portion of land occupied and the duration of such possession. However, the Applicants had failed to produce essential documentation such as a survey report or any form of corroborative evidence such as photographs, receipts, or witness testimony. Instead, they rely on general and unsupported assertions. The lack of specificity regarding JUDGMENT: ELC NO. 189 OF 2021 (O.S.) each claimant’s occupation and the Page 59 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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absence of proof that each has been in continuous possession for at least 12 years renders the claim vague and speculative. These deficiencies constitute a fundamental procedural flaw, warranting the dismissal of the claim. 154. On whether the 1st Respondent was entitled to the reliefs sought in her Counter – Claim. The Learned Counsel argued that the 1 st Respondent was the registered owner of the suit properties, as evidenced by the certificates of title. Under the provision of Section 26 of the Land Registration Act (No. 3 of 2012), her title is indefeasible except on grounds of fraud misrepresentation, which have not been proved by or the Applicants. In the case of “Dina Management Ltd (Supra)”, where the Supreme Court held that a title document could be invalidated if it is proven that the initial allocation process was illegal or procedural. The Applicants have not provided any evidence of fraud or illegality in the 1 st Respondent’s acquisition of the suit properties. 155. The 1st Respondent is the registered owner of the suit properties and had demonstrated that the Applicants’ possession does not meet the requirements for adverse possession. The 1 st Respondent is entitled to Claim, given her the reliefs sought in her Counter - undisputed title and the Applicants’ unmeritorious claim. It was evident that the 1 st Respondent is the lawful and registered proprietor of the suit properties, as demonstrated by the certificates of title presented. Her title enjoys the protection afforded under the provision of Section 26 of the Land Registration Act, which renders it indefeasible JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 60 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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except on grounds of fraud or misrepresentation. The Applicants have not adduced any evidence to challenge the validity of her title, nor have they demonstrated any irregularity or illegality in the manner of its acquisition. 156. Additionally, the Applicants have failed to establish the essential elements required to sustain a claim for adverse possession. Their occupation of the suit properties lacks the necessary specificity, duration, and evidentiary support. In the absence of a credible challenge to her title and with the Applicants’ claim found to be without merit, the Court finds that the 1 st Respondent was entitled to the reliefs sought in her Counter Claim. Accordingly, Judgement was entered in her favour. 157. In conclusion, the Learned Counsel submitted that the Honourable Court must take note that the Applicants deliberately targeted the 1st Respondent, a sick widow, exploiting her vulnerabilities following her husband’s death in 2017 and her illness in 2020. Their actions, including the demolition of her farm house and the construction of an illegal mosque and other houses constructed on cite were calculated to take advantage of her incapacitated state, violating principles of equity, justice, and constitutional protections under Articles 27 and 40. 158. In view of the foregoing, it was respectfully submitted that the 1st Respondent, Faith Wambua, had demonstrated her lawful and indefeasible ownership of the suit properties, supported by valid title documents and continuous exercise of proprietorship as protected under the provision of Section 26 of the Land Registration Act, 2012. The Applicants had failed to discharge JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 61 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the burden of proof required to establish a claim for adverse possession, having not demonstrated continuous, exclusive, open, or hostile possession for the requisite statutory period of twelve actively (12) years. On the contrary, the 1 st Respondent has asserted her ownership administrative measures, thereby through legal and interrupting any alleged adverse possession. 159. Moreover, the Applicants’ claim is tainted by acts of fraud, violence, and opportunism, including the illegal demolition of the 1st Respondent’s farmhouse, construction of an unauthorized mosque, and fraudulent sale of portions of the land all of which disentitle them from seeking an equitable remedy. Their collective claim is further vitiated by fatal procedural defects, including the absence of individualized evidence, lack of a survey report, and failure to specify each claimant's portion or duration of occupation. In the result, the Applicants' claim was not only legally untenable but also constitutionally offensive, as it sought to dispossess a vulnerable, ailing widow of her lawfully acquired property in violation of her rights under the provision of Article 40 of the Constitution. 160. They humbly urged this Honourable Court to find that the Applicants’ claim for adverse possession is without merit and to allow the 1st Respondent’s Counter - Claim in its entirety. They prayed that Judgment be entered in her favour as pleaded. B. The Written Submissions by the Defendant/Respondent JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 62 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE) 2nd

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161. The 2nd Defendant/Respondent through the Law firm of Messrs. Mulwa Nduya & Co. Advocate filed her submissions on 15 th July, 2025. Mr. Musymi Advocate stated that the subject matter of these submissions is the Applicant's claim brought by way of an Amended Origination Summons dated 18th April, 2023 seeking determination on the entitlement to several parcels including land known as Plot No. 20948/1/MN and Registered as CR.63882 which the 2nd Defendant/ Respondent is the registered owner ( to be referred hence forth in this submissions as the suit property) by virtue of adverse possession. 162. The Applicant’s prayers for determination as per the amended Originating summons dated 18th April, 2023 were as stated above. The Learned Counsel averred that in response to the Plaintiffs’ case the 2nd Defendant filed the following pleadings which were during the trial deemed as the 2 nd Defendant’s trial bundle:a. A 2nd Defendant’s Statement of Defence and Counter - Claim b. Replying Affidavit sworn by the 2 nd Defendants on 19th November, 2020. c. Witness statement by the 2nd Defendant dated 4th March, 2022 and filed on the same day. d. List of documents dated 4th March, 2022 (containing 2nd Defendant’s exhibit No. 1 to 9); e. Further list of documents dated 12 th June, 2023 (containing 2nd Defendant’s exhibit 10 and 11); JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 63 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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f. Further list of documents dated 15 th June, 2023; (containing 2nd Defendant’s exhibit 12); 163. The 2nd Respondent’s case on trial was simply that:i) She was the real and actual registered owner of the suit property known as Plot No. 20948/I/MN and registered as CR. 63882 whereby she produced the Certificate of Title in court. ii) The Applicants did not and could not prove on a balance of probabilities the elements of adverse possession were present herein this case. iii) The Applicants were mere trespassers and should be ordered to grand vacant possessions of the suit property to the 2nd Respondents. iv) The Applicant’s claim brought by way of amended Originating summons dated 18th April, 2023 should be dismissed with orders as to costs. 164. On the issue for determination based on the law and facts. The Learned Counsel held that it was whether the Applicants had on a balance of probabilities proven their case of adverse possession. They invited the Court to note that apart the identification card of the first Plaintiff produced during his testimony the identification cards of the other Plaintiffs where never filed or produced on court for purposes identification and verification by this Honourable court as such it is the 2 nd Defendant’s submission that they may as well be non - existent persons. Further Learned Counsel invited the Court to note JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 64 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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subject to the Plaintiff’s witness statement dated 19 th June, 2023 the only the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, 11th, 15th, 16th 21st, 23rd, 26th, 29th, 38th, 40th, 41st, 42nd, 43rd, 46th and 47th Plaintiff (hence forth in this submission to be referred to as the Plaintiffs alleged to be in possession of the 2nd Defendant’s property. 165. They wished to invoked the provision of Section 107 and 109 of the Evidence Act Cap 80 which provides as follows:107. Burden of proof. (1)Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided for by law that the proof of that fact shall lie on any particular person. 166. According to the Learned Counsel, the above position was held by of the Honourable Court in the case:- “Thomas – Versus – Ngugi (Environment & Land Case E003 OF 2021) [2024] KEELC 5857 (KLR)(26 AUGUST 2024) (JUDGMENT)” whereby the Court held that:“The onus of adducing evidence in support of any claim advanced in a suit falls on the party making the claim. In the case of Hellen Wangari Wangechi – Versus – Carumera Muthini Gathua [2005] eKLR, the Court held as follows: JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 65 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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“It is a well – established fact that whoever asserts a fact is under an obligation to prove it in order to succeed.” 167. The Learned Counsel submitted that the Plaintiffs have to prove all elements of adverse possession as they had pleased and as defined by numerous decisions in this Court and in the other apex court. 168. According to the Learned Counsel the question then arises, what do the 22 Plaintiffs need to prove in this suit? This question was answered by the Honourable Court of Appeal sitting in Kisumu in the case of “Richard Wefwafwa Songoi – Versus – Ben Munyifwa Songoi [2020] KECA 942 (KLR)” , whereby the Court states as follows:“40. A person who claims adverse possession must inter alia show: (a) On what date he came into possession. (b) What was the nature of his possession? (c) Whether the fact of his possession was known to the other party. (d) For how long his possession had continued and (e) That the possession was open and undisturbed for the requisite 12 years. 169. It was the Learned Counsel’s submission that this is the test the Plaintiff’s suit and evidence must pass in order for their suit to succeed. 170. On whether the Plaintiffs’ case had merits subject to the above case of “Richard Wefwafwa Songoi (Supra)”, the Learned Counsel on the test being the proof as to which date the Plaintiffs came into possession, submitted that the only JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 66 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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evidence lead by the plaintiff with regard to the date the plaintiff entered into possession of the property is the uncorroborated testimony of PW - 1 who by only adopting his witness statement dated 19th June, 2023, vaguely testified that plaintiffs came into possession of the property on various dates between years 1999 and 2006. According to the Learned Counsel, the Court would note that apart from the testimony of PW - 1 being the 1st Plaintiff did not call any witness of to corroborate the facts he pleaded and testimony he led in court with regards to the date that they entered into possession of the property. At the very least one would hope with the high number of Plaintiff's at least one more would have testified to corroborate the testimony of PW - 1. 171. The court would also not Never produce any document to assist the court in precisely pinpointing the exact date each of the plaintiff allege to have enter in top possession of the property. Yet again on would hope with the high number of plaintiffs severally of them would have at least on document each that court pinpoint when they entered into possession of the property. 172. The Learned Counsel asserted that when the Honourable Court reviews the plaintiff's statement it never gave any details that could assist the court in ascertain when exactly they a gained possession of the property as and such the burden of proof with regards to this first test had not been discharged. 173. Further, the Learned Counsel submitted that in the party of the 2nd Defendant on her part testified that when she purchased the JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 67 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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property in 2014 the property was vacant whereby, she produced agreement agreements being 2 nd Defendant’s Exhibit No. 10 and 11. The 2 nd Defendant further testified that on or around 2017 the plaintiff slowly started to invade the property whereby they first built mud house without any body residing in them but the full blown invasion occurred during the lockdowns at the time of the Covid 19 global pandemic around the years 2020 and 2021. From the bundle of photos marked as 2nd Defendant’s exhibit No. 12 the Court would note that as at November, 2015 the entire mother title land parcel no.399/I/MN was vacant. 174. The 2nd Defendant also testified that while there were just a few mud structure on the property with no one living in them the 2 nd Defendant negotiated peaceful resolution to evict the squatters however in an act of fraud the receive part or the funds but failed to demolish their illegal structure and went ahead to fully invade the property, they referred the court to 2 nd Defendant’s exhibit 5. The 2nd Defendant evidence was further corroborated by the 1st Defendant who testified that a private survey that was carried out in the year 2014 at the time the property was subdivided the entire mother tittle was vacant. Further pursuant to a court order dated 28th November, 2013 persons that were not the Plaintiffs’ they evicted from the property which left the property vacant as at the year 2013 to 2014. 175. It was the 1st Defendant further testified that it was only after the death of here husband in the year 2017 the invasion started and became fully blown in 2020 when she fell ill and the lock JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 68 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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downs begun due to covid 19. It was therefore the Learned Counsel’s submission that as at the exact time the Plaintiffs entered and started taking possession of the property had been established to be between the years 2017 to 2020. 176. On the tests as to the nature of the possession and whether the fact of his possession was known to the 2 nd Defendant. The Learned Counsel referred Court to the case of:- “Kuria Kiarie and 2 Others – Versus – Sammy Magera 2018 KECA467 (KLR)” , where it held as follows with regards to the issue of the nature of possession:18. In the case of Mate Gitabi – Versus - Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others [2017] eKLR, this Court stated as follows: “For one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is without secrecy, without force, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin maxim nec vi, nec clam, nec precario. 177. According to the Learned Counsel submitted that the only evidence lead by the Plaintiff with regard to the nature of possession of the property was the uncorroborated testimony of PW - 1 who by only adopting his witness statement dated 19 th June, 2023, vaguely testified that Plaintiffs that the Plaintiff entered into the 2nd Defendant’s property without anybody's permission and/or consent and/or authority. In the PW - 1’s witness statement dated 19th June, 2023 it was further stated JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 69 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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rather generally and vaguely “that they have established the residential houses and/or homes on the suit property, have their families living with them on the suit property and the suit property are full occupied with different developments and crop or vegetation” and the was the extent and the entirety of their evidence with regards to the nature of their occupation. 178. According to the Learned Counsel, the Court would note that from the testimony of PW - 1 being the 1 st Plaintiff, the Plaintiffs never called any witness to corroborate the facts he pleaded and testimony he led in court with regards to the nature of possession of the property. Again at the very least one would hope with the high number of Plaintiff's at least one more would have testified to corroborate the testimony of PW - 1 apart. The Plaintiff produced photographs of what the allege to be their houses however the photos did not define at least “which house belongs to who” and actually there was not proof that the photos where actually taken from the property. 179. In the case of “Thomas – Versus – Ngugi (Environment & Land Case E003 of 2021)[2024] KEELC 5857(KLR) (26 th August, 2024) (JUDGMENT)”, it was held that: It is also not evident whether the Plaintiff has been in occupation of the suit land from 1994. The Plaintiff ought to have called sufficient evidence such as his neighbors or area administration to confirm that the Plaintiff has occupied the suit land since 1994. He should also have produced a Valuation Report to confirm that indeed the suit land is occupied and developed. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 70 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Without that further evidence, the court finds and holds that the Plaintiff’s pleadings and evidence are mere allegations, which allegations are not sufficient to prove this case on the required standard of balance of probabilities. 180. The Learned Counsel submitted that with the serious nature of the claim the Plaintiff have brought in this case they should have brought satisfactory evident to prove the nature of their occupation at the very least a survey report rendering the occupation of each Plaintiff on the property and being that it's a large group an administrative officer like the chief or village elder to confirm the nature of occupation. The 2 nd Defendant testified that the occupation was violent against her and her agent, and she had to involve the police and the chief at several time. She further testified that the full invasion occurred at the time the county was inlock down hence it was in secret further immediately she discovered the has Actually, when one reviewed the Plaintiff's statement it does not give any details that could assist the court in ascertain the nature of possession of the property and the test for knowledge of possession is defeated by the test of when the Plaintiffs came into possession such the burden of proof with regards to the two test has not been discharged. 181. On the test of how long the Plaintiff possession has continued and that the possession was open and undisturbed requisite 12 years, the Learned Counsel relied on the case of “Isaac Maobe Okeri – Magero Nyaosi Alias Maute Okeri 2016 keelc 738 (KLR)” , where the Court held as follows:JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 71 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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“In order for a litigant to be successful in a claim founded on adverse possession the court must determine whether the applicant has demonstrated peaceful, open, exclusive possession of the suit property as of right without interruption from the registered owner for a period of more than 12 years either after having dispossessed the owner or after the owner discontinuing possession on his own volition”. 182. The Learned Counsel submitted that the only evidence lead by the Plaintiff with regard to the period of occupation the property is the uncorroborated testimony of PW - 1 who by only adopting his witness statement dated 19th June, 2023 whereby he stated rather generally and vaguely “that we have all had actual and/or physical possession and /or occupation of the suit premises or properties herein for over 12 years prior to the commencement of these proceeding” and that was the extent and the entirety of their evidence with regards to the period of their occupation. 183. According to the Learned Counsel, the question that arises was it possible for 50 to occupy a property since 1999 and not have a single document amongst them or bring a witness other than themselves to testify and confirm their period of occupation? The 2nd Defendant position is that this is not possible. Both Defendants have testified, produced document and have brough witnesses to corroborate the fact that the complete dispossession occurred between the years 2020 and 2021 and suit having been file in 2020 and 2021 as such the plaintiffs had not even completed one year before the filing of this suit. 184. On the question of whether the Plaintiffs’ suit had merit. The Learned Counsel relied on the case “Taura Mtsanganyiko – JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 72 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Versus -Julius Jumbae Mundu [2017] eKLR” , while relying on the decision in “Peter Njau Kairu – Versus - Stephen Ndung'u Njenga & Another, C.A. 57 OF 1997” , the court highlighted the observation that:“In order that a registered owner of land may be deprived of his title to such land, in favour of a trespasser (who claims by adverse possession), stringent but straightforward proof of possession is necessary…..Such title can only be deprived in the clearest of case and it is for this reasons that summary procedure in 0.36 Rule 3(D) is provided by the rule – makers in their wisdom, for summary adjudication thereof.” 185. It was the Learned Counsel submission that the Plaintiff had not presented this Court with evidence that shows a clear case of adverse possession to invoke this court’s jurisdiction to deprive the 2nd Defendant of her title. 186. Further in the Court of Appeal in the matter of “John Francis Muyodi – Versus - Peter Lunani Ongoma & 2 Others [2016] eKLR” while relying on the case of “Wambugu – Versus - Njuguna [1983] KLR 173” observed that:“In order to acquire by Statute of Limitation title to land which has a known owner the owner must have lost his right to the land either by being dispossessed of it or having discontinued his possession of it. Dispossession of the proprietor that defeats his action are acts which are consistent (sic) with his enjoyment of the soil of the purpose of which he intends to use it for a continuous 12 years. The Limitation of Actions on possession contemplates two concepts: dispossession and discontinuous of possession. The proper way of assessing proof of title is whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period, and not whether or not the claimant has proved he has been in possession for the requisite number of years.” JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 73 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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187. The Learned Counsel invited the Court to infer that the test was not to show possession for the requisite number of year as the Plaintiffs sought to do (but failed), but rather to show dispossession or discontinuance of the 2 nd Defendant possession for the statutory period whereby this was done in the year 2020 as such the statutory period had not lapse proximately one year later when the Plaintiff filed this reference. The Learned Counsel further submitted that this Honourable court be bound by the authority of “Titus Mutuku Kasuve – Versus - Mwaani Investments Limited & 4 Others [2004] eKLR” where the court of appeal observed that :“The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession. Indeed, rule 3 D (2) of order XXXVI Civil Procedure Rules requires that a certified extract of the title to the land in question should be annexed to the affidavit supporting the originating summons.” 188. According to the Learned Counsel the Court of Appeal decision above further observed that: “It was important and integral part of the process of proving adverse possession for the descriptions of the portion including the size, boundaries and grounds positions to be specified so as to identify the land in question.” 189. The Learned Counsel further submitted that with reference to the above decision, they invited the Court to come to a finding that the Plaintiff failed to prove bring out to the Court important detail of their possession and as such their claim must fail. 190. On whether the 2nd Defendant’s Counter - Claim had merits. The Learned Counsel averred that having failed to prove their claim JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 74 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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for adverse possession then the Plaintiffs are deemed to be mere trespassers on the 2nd Defendant’s property known as Plot No. 20948/1/MN and Registered as CR.63882. In the matter of:“Maina – Waweru & 2 Others (Environment and Land Appeal 10 of 2023)[2025] KEELC 791 (KLR) (19 February 2025) (Judgment)” highlighted the following decision as follows:In “Kenya Power & Lighting Co. Ltd – Versus - Ringera & Others (Civil Appeal E247 and E248 of 2020(Consolidated) [20221 KECA 104 [KLR] (4th February 2022 (Judgment)”, the court observed that trespass, as corrected, submitted by the appellant is governed by Section 5(1) of the Trespass Act, where a person who enters into or upon property in the possession or occupation of another with an intention to commit an offense or intimidate, insult or annoy any person lawfully in possession or occupation of such property, commits a tort of trespass. The court cited “M’Mukanya – Versus – M’Mbijiwe [1984] eKLR” that trespass is a violation of the right to possession, and a plaintiff must prove that he has the right to immediate and exclusive possession of the land, which is different from ownership. 191. According to the Learned Counsel, the above decision of “Maina (Supra)” further highlighted the decision of:In Mwangi -Versus - Njaria (Civil Suit E015 of 2021)[2022] KEELC 13564 [KLR] (19th October 2022) (Judgment), the court observed that what underlies the issue of trespass is ownership of the land. The court cited Winfield & Jolowicz on Tort Sweet & Maxwell 19th Edition page 428, that trespass to land constituted interference with possession, and that mere presence on the land does not necessarily amount to possession sufficient to bring an act for trespass and that the claimant should have some legal interests in the land, and that in the absence of evidence to the contrary, the owner of land with the proper title is deemed to be in possession of the land. The court held that the owner must consent, without which one will be found to have trespassed on the land. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 75 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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192. The 2nd Defendant produced a Certificate of Title in her name as 2nd Defendant exhibit 1, she produced a copy of search in her name as 2nd Defendant exhibit 3, a copy of a transfer of land as 2nd Defendant exhibit 4 and a copies of agreement being 2 nd Defendant exhibit 10 and 11 all which prove ownership of the subject property herein to the 2nd Defendant, as such she is entitled to exclusive possession. 193. The Learned Counsel submitted that the Plaintiffs had admitted numerously in their pleadings that they entered into the property without the authority and consent of the 2 nd Defendant. The 2nd Defendant on her par has also confirm the indeed the Plaintiff invaded her property without her consent and as such they ought to be deem as trespasser under the Trespass Act Cap. 294. 194. On the issue of damages, they highlighted the of the court in the case of:- “Kenya Power Lighting Company – Versus - Ringera & 2 Others (2022) KECA 104 (KLR)” whereby the court noted the following: Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited – Versus - Janevans Limited [2015] eKLR, - whether the claim is in contract or tort, the only damages to which an aggrieved party is entitled to is the pecuniary loss; (b) the accruing awardable damages is aimed at putting the aggrieved party into as good a position as if there had been no such breach or interference. In other words, in the position it/he/she was in with regard to the object trespassed upon before the onset of such a trespass; (c) it is meant to cushion the aggrieved party against the expenses caused because of the trespass and loss of benefit over the period of the duration of the trespass. 195. Further it noted that:JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 76 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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“As we have already highlighted above, the onset of the trespass was in 2013. It is continuing to the present day and solely for the benefit of the Appellant. We find no error in the manner the learned Judge arrived at the award of damages under this head. We therefore agree with the Respondents' assertion in their notice to affirm the decision of the trial court on this award that the damages awarded under this item are commensurate to the loss suffered by the Respondents from the Appellant’s continuing trespass on the suit properties and for the sole benefit of the Appellant and accordingly affirm the said award”. 196. The Learned Counsel opined that the Plaintiff’s occupation started in the year 2017, the 2nd Defendant was completely dispossessed in 2020 and the trespass continues to date as such it was the 2nd Defendant submission that an award of a sum of Kenya Shillings Ten Million (Kshs. 10,000,000/-) was sufficient to restitute the 2nd Defendant as damages for trespass. 197. The Learned Counsel therefore submitted that she was entitled to vacant possession of the property and the court should allow the Counter - Claim dated 12 th June, 2023 with costs to the 2 nd Defendant. 198. In conclusion, the Learned Counsel submitted that the 1 st and 2nd Defendants/Respondents humbly prayed that the Court do dismiss the amended Originating summons dated 18 th April, 2023 with costs to the 2nd Defendant and allowed the Counter - Claim dated 12th June, 2023 with orders as to costs and any other relief this Honourable Court may deem fit and just to grant. VII. Analysis and Determination JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 77 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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199. I have carefully read and analyzed all the pleadings filed herein, together with the oral testimonies and documentary evidence adduced in court, the written submissions filed by the Learned Counsels for the parties, the cited plethora of authorities, the relevant provisions of the Constitution of Kenya, 2010 and the law. 200. For the Honourable Court to reach an informed, Equitable, Reasonable and Fair decision on this subject matter, it has crafted the following five (5) key issues for its determination. These are:a) Whether the Plaintiffs had made out their claim for land adverse possession;? b) Whether the Counter - Claim by the 1st Defendant was merited? c) Whether the Counter - Claim by the 2 nd Defendant was merited? d) Whether the Parties are entitled to the prayers sought? e) Who meets costs of the suit and Counter - Claims. ISSUE No. a). Whether the Plaintiffs had made out their claim for the land adverse possession 201. Under this sub–heading, the Honourable Court addresses the first issue: whether the Plaintiffs have made out their claim for adverse possession over Plot No. 20948/I/MN, CR. 63882. The claim of Land Adverse possession is a doctrine of law through which a person acquires legal title to land by reason of actual, open, continuous, and exclusive occupation of it to the JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 78 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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exclusion of the registered owner for a prescribed period of twelve (12) years. 202. Adverse possession is a doctrine of law vide which a person obtains legal title to land by reason of actual, open and continuous occupation of it to the exclusion of the registered owner for a prescribed period. In Kenya, the prescribed period is 12 years. As already elaborately and rightfully submitted herein by the Counsels herein, the doctrine is anchored under the provisions of Sections 7, 13 and 38 of the Limitation of Actions Act, Cap. 22. Section 7 provides that:“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 203. Section 13 of the Limitation of Actions Act provides: (1) A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of Limitation can run (which possession is this Act referred to as adverse possession), where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land cease to be in adverse possession, the right of action is no longer taken to have accrued and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land. (3) For the purpose of this section, receipt of rent under a lease by a person wrongfully claiming in accordance with section 12 (3) of this Act, the land in reversion is taken to be adverse possession of the land. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 79 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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204. The procedure for seeking relief on a claim based on adverse is provided for in Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, 2010. Section 38 (1) provides; (1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land (2) An order made under sub-section (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act. 205. And Order 37 Civil Procedure Rules, 2010 provides: “(1) An Application under Section 38 of the Limitation of Actions Act shall be made by Originating Summons (2) The summons shall be supported by an Affidavit to which a certified extract of the title to the land in question has been annexed.” 206. The provision of Article 162 (2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of actions Act confer jurisdiction on this court to handle claims premised on adverse possession. 207. In the instant case, the Plaintiffs allege occupation of the suit land since year 2006. Ideally, this would fifteen (15) years at the time of instituting this civil suit and hence within the statutorily JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 80 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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period of twelve (12) years as envisaged in Law. However, the evidence presented does not demonstrate uninterrupted possession for the statutory period. The Surveyor’s reports and photographic exhibits from the years 2015 reveal no permanent structures were on the land. Testimonies from the Defendants and their witnesses confirm that the Plaintiffs only began encroaching on the suit land around 2017–2018 at the time her husband passed on. They did this by erecting temporary structures and later demanding compensation. Conversely, the 2nd Defendant, has produced a valid sale agreement dated 28 th April, 2014, a transfer dated 12 th November, 2014, and a copy of title deed, all confirming her ownership and rebutting the Plaintiffs’ assertions. 208. To satisfy the claim of Adverse possession there are certain fundamentals and basic ingredients that a Claimant ought to fulfil. The High Courts and the Learned Counsels herein have extensively deliberated on this aspect and hence there would no need to be - labour on it nor re – invent the wheel. In addition to the already cited cases, I wish seek refuge from a few others. These are the decisions of: “Kimani Ruchure – Versus - Swift Rutherfords & Co. Ltd (1980)KLR 10” Kneller J held that: “the Plaintiffs have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion).” 209. Further, in the case of:- “Gabriel Mbui – Versus - Mukindia Maranya [1993] eKLR” adverse possession was defined as: “..the non-permissive physical control over land coupled with the intention of doing so, by a stranger having actual JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 81 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owner’s enjoyment of land for purposes for which the owner intended to use it.” 210. Similarly, in the case of “M’ikiara M’rinkanya & Another – Versus Gilbert Kabeere M’mbijiwe, Civil Appeal 124 of 2003 [2007] eKLR” , the Court held that:‘…From the above analysis, it is clear that a judgment for possession of land should be enforced before the expiry of the 12 years limitation period stipulated in section 7 of the Act. If the judgment is not enforced within the stipulated period, the rights of the decree holder are extinguished as stipulated in section 17 of the Act and the judgment debtor acquires possessory title by adverse possession which he can enforce in appropriate proceedings. So, quite apart from the authority of Lougher - Versus - Donovan [1948] 2 All ER 11, which we consider as still good law in this country, and the previous decisions of this Court, there is a statutory bar in section 7 of the Act for recovery of land including the recovery of possession of land after expiration of 12 years. It follows, therefore, that, to hold that execution proceedings to recover land are excluded from the definition of “action” in section 4 (4) of the Act would be inconsistent with the law of adverse possession… ..as regard recovery of judgment debts, the construction of Section 4 (4) of the Act by local courts barring recovery after 12 years, is as shown in Lowsley – Versus - Forbes [1999] 1 AC 329 , consistent with construction given by English Courts to Section 2 (4) of the Limitations Act 1939 and its predecessors for over 100 years that a judgment debt becomes statute barred after 12 years.’ 211. Further, in the case “Mbira – Versus - Gachuhi [2002] 1 EALR 137” the court stated as follows:JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 82 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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“.....a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period, must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutorily prescribed period without interruption…” 212. Also, in the case of “Gabriel Mbui – Versus - Mukindia Maranya [1993] eKLR” Kuloba enumerated the elements that need to be proved by a party invoking the doctrine of adverse possession as follows; a) The intruder resisting suit or claiming right by adverse possession must make physical entry and be in actual possession or occupancy of the land for statutory period. b) The entry and occupation must be with, or maintained under, some claim or colour of right or title, made in good faith by the stranger seeking to invoke the doctrine of adverse possession as against everyone else. c) The occupation of land by the intruder who pleads adverse possession must be non- permissive use, i.e. without permission from the true owner of the land occupant. d) The non-permissive actual possession hostile to the current owner must be un equivocally exclusive, and with an evinced unmistakable animus possidendi. that is to say occupation with the clear intention of excluding the owner as well as other people. e) The possession by the person seeking to prove title by adviser possession must be visible, open and notorious, given reason for notice to the owner and the community, of the exercise of dominion over the land, f) The possession must be continuous uninterrupted, unbroken, for the necessary statutory period. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 83 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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g) The rightful owner must know that he is ousted. He must be aware that he had been dispossessed, or he must have parted and intended to part with possession. 213. Therefore, to determine whether the Applicants’ rights accrued the Court will seek to answer the following i. How did the Applicants take possession of the suit property? ii. When did he take possession and occupation of the suit property? iii. What was the nature of his possession and occupation? iv. How long has the Applicant been in possession? 214. Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. 215. The Plaintiffs contend that they entered the land as early as the year 2006. According to their testimony, they constructed structures, resided there with their families, and engaged in activities such as livestock keeping and farming. They maintain that their occupation was visible to the community, marked by semi-permanent houses and daily use of the land. In their view, JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 84 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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this occupation was continuous, open, and without interruption, thereby laying the foundation for their claim of adverse possession. 216. However, the Defendants, present a different narrative. They insist that the Plaintiffs only began encroaching on the property around years 2017–2018. They argue that before this period, the land was vacant and unoccupied, a fact they confirmed through due diligence prior to purchasing the property in 2014. The Defendants emphasize that the Plaintiffs’ entry was not peaceful or consensual but amounted to trespass, later followed by demands for compensation. They further point to police reports, goodwill agreements, and surveyor’s findings as evidence that the Plaintiffs’ occupation was neither long-standing nor legitimate. 217. In assessing how the Applicants took possession, the Court is guided by the principles of adverse possession: entry must be actual, open, notorious, exclusive, and without permission — nec vi, nec clam, nec precario (without force, secrecy, or license). The Plaintiffs’ claim of entry in 2006 is contradicted by documentary evidence, including survey reports and Google Maps imagery from year 2015, which show no permanent structures on the land. The Defendants’ testimony, supported by title documents and contemporaneous reports, demonstrates that the Plaintiffs’ occupation was sporadic, contested, and relatively recent. 218. The Honourable Court therefore finds that the Applicants’ possession of the suit property was not established as having JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 85 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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commenced in 2006, nor was it shown to be continuous and uninterrupted for the statutory twelve (12) years period. Their entry appears to have been much later, under circumstances that do not satisfy the legal threshold for adverse possession. The manner of entry, coupled with subsequent disputes and demands for compensation, points more to opportunistic trespass than to the settled, open, and exclusive occupation required by law. 219. The question is therefore was the possession uninterrupted for more than twelve years? The answer is of course to the affirmative because the Defendant never interrupted their stay on the suit property. They had had uninterrupted occupancy of the suit property for more than 12 years. In the case of:- “Githu – Versus - Ndeete [1994] KLR” quoted by the Court of Appeal in “Kenya Commercial Bank (suing as Administrator of the Estate of Paul Njoroge Muchene) – Versus - Sarah Njeri Muchene” the court held that: “ time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his rights or when his right is admitted by adverse possession. Assertion occurs when the owner takes legal proceedings or makes an entry into land. Giving notice to quit cannot be effective assertion of right for the purpose of stopping the running of time under the Limitation of actions Act. A title by adverse possession ca be acquired under the Limitation of actions Act to a part of the parcel of land to which the owner holds title.” 220. In the case of:- “James Obande Wasui – Versus - Jeremiah Ochwada Musumba [2002] eKLR” the court held that as an occupier’s runs right, JUDGMENT: ELC NO. 189 OF 2021 (O.S.) adverse possession Page 86 of 112 with the land HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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irrespective of change in proprietorship. Under the provision of Section 28 of the Land Registration Act, No. 3 of 2012 as at the time of transfer of the suit land, the land was subject to an Overriding Interest in the form of rights of adverse possession in favour of the Plaintiff. Section 28 provides: ‘Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted in the registera. …. b. ….. c. …. d. …. e. …. f. …. g. …. h. Rights acquired or in the process of being acquired by virtue of any written law relating to the Limitation of actions or by prescription. 221. The Plaintiffs maintain that they entered the land in the year 2006 and have remained in occupation ever since. They rely on oral testimony and witness statements to assert that they constructed houses, kept livestock, and engaged in farming activities on the property. Their position is that this occupation was visible, known to the community, and therefore satisfied the requirement of open and notorious possession. They further argue that their continued stay, despite hostility from neighbours and alleged vandalism, demonstrates uninterrupted occupation. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 87 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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222. The Defendants, however, contest this timeline vigorously. They emphasize that when the 2nd Defendant purchased the property in 2014, the land was vacant, bushy, and without any squatters. They rely on survey inspections conducted at the time of purchase and Google Map imagery from 2015, which confirm the absence of permanent structures. According to their evidence, the Plaintiffs only began encroaching on the land around 2017–2018, erecting semi-permanent structures and later demanding compensation through goodwill agreements. The Defendants also point to police reports and correspondence with local chiefs as proof that occupation was recent and contested. 223. The Court also notes that sporadic acts such as occasional grazing of livestock or temporary structures do not amount to the kind of settled, exclusive, and notorious possession contemplated under the doctrine. The Plaintiffs’ narrative of occupation since the year 2006 is weakened by the absence of corroborative documentary evidence, connections, tax or records, such consistent as utility community acknowledgment of their presence during that period. 224. The Honourable Court finds that the Applicants took possession and occupation of the suit property not in 2006 as alleged, but much later, around 2017–2018. This period is insufficient to sustain a claim of adverse possession under the Limitation of Actions Act, as it does not meet the statutory twelve-year requirement. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 88 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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225. The Honourable Court now considers the third guiding question: What was the nature of the Applicants’ possession and occupation of the suit property? The Plaintiffs describe their possession as residential and agricultural. They claim to have constructed houses, fenced portions of the land, kept livestock, and engaged in farming. They argue that their occupation was visible, open to the community, and continuous, thereby satisfying the requirements of adverse possession. 226. The Defendants, however, characterize the Plaintiffs’ occupation differently. They assert that the Plaintiffs’ entry was recent, sporadic, and hostile, amounting to trespass rather than settled possession. They emphasize that the Plaintiffs’ structures were semi-permanent, erected only after 2017–2018, and that the Plaintiffs demanded compensation through goodwill agreements. The Defendants also highlight that police reports and interventions by local chiefs demonstrate that the occupation was contested and interrupted, not peaceful or exclusive. 227. The Court notes that for adverse possession to succeed, the nature of possession must be nec vi, nec clam, nec precario — without force, secrecy, or permission. It must be open, notorious, exclusive, and continuous for at least twelve years. The Plaintiffs’ occupation, as evidenced, was neither exclusive nor uninterrupted. It was marked by disputes, vandalism, demands for compensation, and interventions by authorities. Such circumstances do not amount to the kind of settled, JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 89 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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peaceful, and notorious possession contemplated under the doctrine of adverse possession. 228. The Honourable Court finds that the nature of the Applicants’ possession and occupation of the suit property was irregular, contested, and lacking the qualities of exclusivity and continuity required by law. It cannot therefore sustain a claim of adverse possession. 229. Finally, on how long have the Applicants been in possession of the suit property; the Plaintiffs assert that they have been in occupation since 2006, a period which they argue exceeds the statutory twelve years required under the Limitation of Actions Act. They rely on oral testimony to support this claim, pointing to alleged construction of houses, farming activities, and livestock keeping as evidence of long-standing possession. 230. The Defendants, however, dispute this timeline. They maintain that when the 2nd Defendant purchased the property in 2014, the land was vacant and unoccupied. Survey inspections and Google Map imagery from 2015 confirm the absence of permanent structures. According to the Defendants, the Plaintiffs only began encroaching around 2017–2018, erecting semi-permanent structures and later demanding compensation. This evidence suggests that the period of occupation is far shorter than the twelve years required by law. 231. The Court observes that adverse possession requires uninterrupted, open, and exclusive occupation for at least twelve years. Sporadic or recent entry, particularly where it is contested and JUDGMENT: ELC NO. 189 OF 2021 (O.S.) interrupted Page 90 of 112 by police reports, goodwill HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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agreements, or demands for compensation, does not meet this threshold. The Plaintiffs’ claim of occupation since 2006 is not corroborated by credible documentary evidence, while the Defendants’ evidence consistently points to occupation beginning much later. 232. The Honourable Court finds that the Applicants have been in possession of the suit property only from around 2017–2018. This period falls short of the statutory twelve years required to establish adverse possession. ISSUE No. b). Whether the Counter - Claim by the 1st Defendant was merited 233. Under this Sub-Title, the Honourable Court now turns to the issue of whether the 1st Defendant’s counterclaim is merited. The 1st Defendant has pleaded ownership of the suit property and sought reliefs including declarations of title, injunctions against the Plaintiffs, and damages for trespass. The Counter Claim is anchored on the assertion that the Plaintiffs are trespassers who have unlawfully entered and occupied the land without consent, authority, or any legal entitlement. 234. The presence of a Counter - Claim in a suit, while essentially amounting to a cross - suit, does not give rise to a separate, stand-alone second Judgment. A Counter - Claim never stands on its own and cannot be a pleading independent of a defence. That much is clear from the provision of Order 7 Rule 3 of the Civil Procedure Rules, 2010; JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 91 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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A Defendant in a suit may set off, or set up by way of Counter Claim against the claims of the plaintiff, any right or claim, whether such set off or Counter - Claim sound (sic) in damages or not, and whether it is for “a liquidated or unliquidated amount, and such set off or Counter - Claim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final Judgment in the same suit, both on the original and the Cross - Claim; but the court may on the application of the Plaintiff before trial, if in the opinion such set off or Counter - Claim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to Defendant to avail himself thereof”. 235. This rule is in pari materia with the provision of Order 8 Rule 6A (2) of the Indian Civil Procedure Rules and Sir Dinshah Fordunji Mulla in The Code of Civil Procedure, 18 th Edition, 2011 at p. 1928 has addressed the essence of the suit and the Counter - Claim as constituting unfiled proceedings as follows:“A Counter - Claim has the effect of a cross - suit but only one final Judgment is to be pronounced in the suit on the original claim of the Plaintiff and the Counter - Claim of the Defendant”. 236. In determining whether the Counter - Claim is merited, the Court considers the following:a. Proof of title b. Evidence of Trespass c. Adverse possession claim d. Reliefs sought. 237. The Honourable Court considers the question of proof of title in relation to the 1st Defendant’s counterclaim. Section 24 of the Land Registration Act No 3 of 2012 states that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 92 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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privileges belonging or appurtenant thereto. Section 25 of the said Act provides that the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—to encumbrances charges or leases shown on the register and the overriding interests as stated in the provision of Section 28 of the Act. 238. Section 26 of the Land Registration Act, 2012 provides:(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 239. The courts are therefore mandated by statute to consider a title document as prima facie evidence of ownership to land and a conclusive evidence of proprietorship to land that can only be challenged on grounds stipulated as above. Among the rights to be enjoyed by a registered owner of any land is the right for peaceful and quiet enjoyment of the land he owns, in other JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 93 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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words the rightful owner to the land has a right to possession, occupation and use of the suit land. 240. The law is clear that a certificate of title issued under the Land Registration Act is prima facie evidence of ownership. The sanctity of title is a fundamental principle, and the burden lies on the party challenging it to demonstrate grounds for its impeachment. 241. In the present case, the 1st Defendant has produced documentary evidence of ownership, including a valid sale agreement, a duly executed transfer, and a registered title deed. This evidence establishes her legal and beneficial ownership of the suit property. The Plaintiffs have not produced any documentary evidence to challenge the validity of the Defendant’s title. Their claim rests solely on adverse possession, which has already been found not to meet the statutory threshold of twelve years of uninterrupted occupation. 242. The jurisprudence reinforces this position. In the case of:- “Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 Others [2015] KECA 816” , the Court of Appeal emphasized that title documents are conclusive evidence of ownership unless impeached by cogent proof of fraud or illegality. Similarly, in “Sammy Magera – Versus - Kuria Kiarie & 2 Others [2017] KEELC 2189”, the Environment and Land Court reiterated that once a party produces a valid title deed, the evidentiary burden shifts to the challenger to disprove its validity. 243. The Plaintiffs have not discharged this burden. Their occupation, being recent, contested, and lacking continuity, cannot override JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 94 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the Defendant’s registered title. The Defendant’s proof of title therefore stands unshaken and must be upheld by the Court. 244. On the issue of proof of title, the Honourable Court finds that the 1st Defendant has successfully proved her title to the suit property. The title deed, supported by the sale agreement and transfer documents, constitutes conclusive evidence of ownership, and the Plaintiffs have failed to impeach it. 245. The Honourable Court considers the issue of evidence of trespass in relation to the Plaintiffs’ occupation of the suit property. Trespass is defined as unlawful entry upon land without the consent or authority of the registered owner. It encompasses acts such as erecting structures, cultivating, leasing, or otherwise interfering with the owner’s quiet possession. The burden lies on the party alleging trespass to demonstrate that the entry was unauthorized and that the acts complained of interfered with proprietary rights. 246. Hence, it is essential to delineate the pertinent legal and jurisprudential framework on this claim. Article 40 of the Constitution recognises that every person has the right to acquire and own property of any kind and in any location within Kenya. The protections and limitations related to such land rights are governed by the provision of Sections 24, 25, and 26 of the Land Registration Act, which demarcate land rights, privileges, appurtenances, liabilities, and interests. Other relevant provisions of the law are contained in the Land Act and the Trespass Act, which specifically stipulate: 247. Section 152A of the Land Act 2016 states as follows: JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 95 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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“A person shall not unlawfully occupy Private, Community or Public Land.” 248. Section 3 (1) of the Trespass Act defines trespass as: “any person who without unreasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on private land without the consent of the occupier thereof shall be guilty of an offence.” 249. As for the writings of eminent scholars, the text of Clerk & Lindsell on Torts, Sweet & Maxwell, 18th Edition, at page 923, defines trespass to land as follows: “Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another.” 250. Page 927 of the same text discourses as to who may sue for trespass, and it states as follows: “Trespass is actionable at the suit of the person in possession of land, who can claim damages or injunction, or both... Similarly, a person in possession can sue although he is neither owner nor derives title from the owner, and indeed may be in possession adverse to the owner.” 251. Further in the book of Winfield & Jolowicz on Tort, Sweet & Maxwell, 19th Edition, page 428, trespass is discussed as follows: “Trespass to land, like the tort of trespass to goods, consists of interference with possession. Mere physical presence on the land does not necessarily amount to possession sufficient to bring an action for trespass. It is not necessary that the claimant should have some lawful interest in the land. This is not to say that legal title is irrelevant, for where the facts leave it uncertain which of several competing claimants has possession, it is in him who can prove title that can prove he JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 96 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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has the right to possession. More generally, in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land.” 252. The prevailing theme in the definition of trespass, as articulated by these esteemed scholars, is that ownership is not a prerequisite for such a claim. Nevertheless, the assertion of a person holding title to the land takes precedence in cases of competing claims of possession. In the present case, the Defendants have produced evidence showing that the Plaintiffs entered the land without permission. Testimony confirms that semi-permanent and permanent structures were erected on the property after 2017–2018. Police reports and interventions by local chiefs corroborate that the occupation was contested and resisted by the Defendants. Further, goodwill agreements signed between the Defendants and some of the Plaintiffs demonstrate that the Plaintiffs acknowledged their lack of title and sought financial settlement to vacate the land. 253. The Plaintiffs, on the other hand, have not produced documentary evidence of lawful entry or authority to occupy the land. Their claim rests solely on adverse possession, which has already been found not to meet the statutory threshold of twelve years. Without proof of continuous, peaceful, and exclusive occupation, their presence on the land amounts to unlawful encroachment. 254. The jurisprudence is clear. In the case of:- “Sammy Magera – Versus - Kuria Kiarie & 2 Others (Supra)” , the Court emphasized that once a registered owner produces a valid title deed, the JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 97 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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burden shifts to the challenger to disprove it. Where no such evidence is produced, continued occupation amounts to trespass. Similarly, in “Arthi Highway Developers Ltd – Versus West End Butchery Ltd & 6 Others (Supra)” , the Court of Appeal upheld the sanctity of title and condemned unauthorized entry as trespass. 255. The Honourable Court finds that the Plaintiffs’ entry and occupation of the suit property was unauthorized, contested, and unlawful. Their actions — including erecting structures, demanding compensation, and purporting to lease portions of the land — constitute trespass against the registered owner. 256. The Honourable Court now considers the issue of the adverse possession claim advanced by the Plaintiffs. Adverse possession is a doctrine of law through which a person acquires legal title to land by reason of actual, open, continuous, and exclusive occupation of it to the exclusion of the registered owner for a prescribed period of twelve (12) years. The doctrine is anchored in Sections 7, 13, and 38 of the Limitation of Actions Act. The burden of proof lies squarely on the party asserting adverse possession, and it must be shown that the occupation was nec vi, nec clam, nec precario — without force, secrecy, or permission. 257. The Plaintiffs allege that they have been in occupation of the suit property since 2006. They claim to have constructed houses, engaged in farming, and resided there continuously. However, the Defendants contest this assertion, producing evidence that when the 2 nd Defendant purchased the property JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 98 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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in 2014, the land was vacant. Surveyor’s reports and Google Map imagery from 2015 confirm the absence of permanent structures. Testimony further indicates that the Plaintiffs only began encroaching around 2017–2018, erecting semi-permanent structures and later demanding compensation through goodwill agreements. 258. The Court observes that for adverse possession to succeed, the occupation must be uninterrupted for at least twelve years. The Plaintiffs’ claim of entry in 2006 is not corroborated by credible documentary evidence. On the contrary, the Defendants’ evidence consistently points to occupation beginning much later. Sporadic or contested entry, coupled with police reports and goodwill settlements, does not amount to the kind of settled, exclusive, and notorious possession contemplated under the doctrine. 259. The Honourable Court finds that the Plaintiffs have not proved their claim of adverse possession. Their occupation, being recent, contested, and interrupted, falls short of the statutory twelve-year requirement. The adverse possession claim therefore fails. 260. The Honourable Court considers the issue of reliefs sought by the 1st Defendant in her counterclaim. The 1 st Defendant has prayed for declarations of ownership, injunctions, mandatory orders for demolition of illegal structures, damages for trespass, and costs of the suit. These reliefs flow directly from the findings on proof of title, evidence of trespass, and the failure of the Plaintiffs’ adverse possession claim. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 99 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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261. On the declaration for ownership, the 1st Defendant has produced a valid sale agreement, transfer, and title deed. Under the provisions of Sections 24, 25 & 26 of the Land Registration Act, the certificate of title is conclusive evidence of ownership unless impeached by fraud or illegality. The Plaintiffs have not provided evidence to impeach the Defendant’s title. The Court therefore finds that the declaration of ownership is merited. 262. On the declaration of trespass, the Plaintiffs’ entry and occupation of the land was unauthorized, contested, and interrupted. Their actions — including erecting structures, purporting to lease portions of the land, and demanding compensation — amount to trespass. The Court is satisfied that a declaration of trespass is warranted. 263. Further the permanent injunction, given the Plaintiffs’ continued encroachment and attempts to interfere with the Defendant’s quiet possession, a permanent injunction is necessary to restrain them, their agents, and anyone claiming through them from further occupation, construction, or dealings with the property. 264. On the mandatory order for demolition, the Defendant has demonstrated that illegal structures were erected on the land. A mandatory order directing the Plaintiffs to demolish and remove pursuant to the provisions of Section 152E of the Land Act, No. 6 of 2012 such structures is appropriate. In default, the Defendant is entitled to demolish and remove them at the Plaintiffs’ cost, with police assistance to ensure peace and compliance. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 100 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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265. On the damages for trespass, in the case of “Park Towers Limited – Versus - John Mithamo Njika & 7 others (2014)eKLR” , where the Court held that:“I agree with the learned Judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages awardable depending on the unique facts and circumstances of each case.’’ 266. In the case of “Philip Aluchio – Versus - Crispinus Ngayo [2014]eKLR”, the Court held as follows:“........ The Plaintiff is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage. It has been held that the measure of damages for trespass is the difference in the value of the Plaintiff’s property immediately after the trespass or the costs of restoration, whichever is less .................’’ The Plaintiff herein did not adduce any evidence as to the state of his property before and after the trespass. It therefore becomes difficult to assess general damages for trespass....” 267. Having not provided the value of the land before the alleged trespass, the Court proceeds to award a nominal figure of a sum of Kenya Shillings Five Million (Kshs. 5,000,000/=) as general damages for trespass. 268. The Honourable Court finds that the reliefs sought by the 1 st Defendant are merited. The Defendant has established ownership, proved trespass, and demonstrated entitlement to injunctive, mandatory, and compensatory remedies. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 101 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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ISSUE No. c). Whether the Counter - Claim by the 2 nd Defendant was merited 269. Under this Sub-Title, the Honourable Court considers whether the 2nd Defendant’s Counter - Claim is merited. The 2nd Defendant has pleaded ownership of Plot No. 20948/I/MN, CR. 63882, and sought reliefs including declarations of title, injunctions, mandatory demolition orders, damages for trespass, and costs. 270. On proof of title, the 2nd Defendant has produced documentary evidence of ownership, including a valid sale agreement dated 28th April 2014, a duly executed transfer dated 12 th November 2014, and a registered title deed. These documents establish her legal and beneficial ownership of the suit property. Sections 24, 25 & 26 (1) of the Land Registration Act provides that a Certificate of Title is conclusive evidence of proprietorship unless impeached by fraud, misrepresentation, or illegality. The Plaintiffs have not adduced any evidence to impeach the Defendant’s title. In line with precedents such as “Arthi Highway Developers Ltd (Supra)”, the sanctity of title must be upheld. 271. On the evidence of trespass, the Defendant has demonstrated that the Plaintiffs entered the property without consent, erected semi-permanent structures, and purported to lease or sell portions of the land. Police reports, surveyor’s findings, and goodwill agreements corroborate that the occupation was contested and unauthorized. Trespass is actionable per se, and the Plaintiffs’ conduct amounts to unlawful interference with the Defendant’s proprietary rights. The Court notes that trespass JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 102 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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undermines the quiet enjoyment of land and entitles the registered owner to both injunctive relief and damages. 272. The issue of Adverse possession has been extensively discussed before in this judgment. The Plaintiffs’ claim of adverse possession has already been found to fail. Their occupation does not meet the statutory twelve-year threshold under the provision of Sections 7 13 and 38 of the Limitation of Actions Act. Cap. 22. The evidence points to entry around 2017–2018, which is insufficient to sustain adverse possession. Moreover, their occupation was neither peaceful nor uninterrupted, being marked by disputes, police interventions, and demands for compensation. The doctrine of adverse possession cannot be invoked to defeat a valid registered title in such circumstances. 273. The Honourable Court considers the issue of reliefs sought by the 2nd Defendant in her counterclaim. The 2nd Defendant has prayed for declarations of ownership, injunctions, mandatory orders for demolition of illegal structures, damages for trespass, and costs of the suit. These reliefs flow directly from the findings on proof of title, evidence of trespass, and the failure of the Plaintiffs’ adverse possession claim. 274. On the declaration for ownership, the 2 nd Defendant has produced a valid sale agreement, transfer, and title deed. Under the provision of Sections 24, 25 & 26 of the Land Registration Act, the certificate of title is conclusive evidence of ownership unless impeached by fraud or illegality. The Plaintiffs have not provided evidence to impeach the Defendant’s title. The Court therefore finds that the declaration of ownership is merited. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 103 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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275. On the declaration of trespass. The Plaintiffs’ entry and occupation of the land was unauthorized, contested, and interrupted. Their actions — including erecting structures, purporting to lease portions of the land, and demanding compensation — amount to trespass. The Court is satisfied that a declaration of trespass is warranted. 276. Further the permanent injunction, given the Plaintiffs’ continued encroachment and attempts to interfere with the Defendant’s quiet possession, a permanent injunction is necessary to restrain them, their agents, and anyone claiming through them from further occupation, construction, or dealings with the property. 277. On the mandatory order for demolition, the Defendant has demonstrated that illegal structures were erected on the land. A mandatory order directing the Plaintiffs to demolish and remove such structures is appropriate. In default, the Defendant is entitled to demolish and remove them at the Plaintiffs’ cost, with police assistance to ensure peace and compliance. 278. On the damages for trespass, in the case of “Park Towers Limited – Versus - John Mithamo Njika & 7 others (2014)eKLR” , where the Court held that:“I agree with the learned Judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages awardable depending on the unique facts and circumstances of each case.’’ 279. In the case of “Philip Aluchio – Versus - Crispinus Ngayo [2014]eKLR”, the Court held as follows:- JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 104 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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“........ The plaintiff is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage. It has been held that the measure of damages for trespass is the difference in the value of the Plaintiff’s property immediately after the trespass or the costs of restoration, whichever is less .................’’ The plaintiff herein did not adduce any evidence as to the state of his property before and after the trespass. It therefore becomes difficult to assess general damages for trespass....” 280. Having not provided the value of the land before the alleged trespass, the Court proceeds to award a nominal figure of Kenya Shillings Five Million (Kshs. 5,000,000/=) as general damages for trespass. 281. The Honourable Court finds that the reliefs sought by the 2 nd Defendant are merited. The 2nd Defendant has established ownership, proved trespass, and demonstrated entitlement to injunctive, mandatory, and compensatory remedies. ISSUE No. d). Whether the Parties are entitled to the prayers sought. 282. Under this sub–heading, the Honourable Court now considers whether the Parties are entitled to the prayers sought. On the part of the Plaintiffs’ prayers, the Plaintiffs sought declarations that they had acquired ownership of the suit property by way of adverse possession. They relied on allegations of occupation dating back to 2006, claiming to have constructed houses, fenced the land, and engaged in farming and livestock keeping. However, upon careful scrutiny, the Court has already found that their occupation was neither continuous nor exclusive, and was interrupted by police reports, goodwill agreements, and JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 105 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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disputes with the Defendants. The statutory twelve-year threshold under the provision of Sections 7 and 13 of the Limitation of Actions Act, Cap. 22 has not been met. 283. Jurisprudence such as “Mbira – Versus - Gachuhi (Supra)” and Ndeete [1994] KLR” makes clear that adverse “Githu – Versus - possession requires uninterrupted, open, and notorious occupation for twelve years, without force or permission. The Plaintiffs’ evidence falls short of this standard. Consequently, their claim of adverse possession collapses, and they are not entitled to the prayers sought in their originating summons. 284. On the part of the 1st Defendant, she sought declarations of ownership, injunctive relief, mandatory demolition orders, damages for trespass, and costs. She has produced valid title documents, including a sale agreement, transfer, and title deed, which stand as conclusive evidence of ownership under Section 26 of the Land Registration Act. The Plaintiffs have not impeached this title by proof of fraud or illegality. The Court has further found that the Plaintiffs’ entry was unauthorized and amounted to trespass. Trespass is actionable per se, and damages are awarded to compensate the registered owner for unlawful interference with proprietary rights. The Court therefore grants the 1st Defendant’s prayers, including: a. A declaration of ownership of the suit property. b. A permanent injunction restraining the Plaintiffs from further encroachment. c. A mandatory order for demolition of illegal structures. d. General damages for trespass assessed at Kshs. 5,000,000. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 106 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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285. On the prayers sought by the 2 nd Defendant, the 2nd Defendant similarly sought declarations of title, injunctive relief, demolition orders, damages for trespass, and costs. She has produced valid title documents confirming her proprietorship and has demonstrated that the Plaintiffs’ occupation was unlawful. Her counterclaim is merited. The Court therefore grants her prayers in full, including: a) A declaration of ownership and trespass. b) A permanent injunction restraining the Plaintiffs from further dealings with the property. c) A mandatory order for demolition of illegal structures. d) General damages for trespass of Kshs. 5,000,000/- 286. The Honourable Court finds that the Plaintiffs are not entitled to the prayers sought, while both the 1 st and 2nd Defendants have successfully proved their counterclaims. They are entitled to the reliefs sought, including declarations of ownership, injunctive and mandatory orders, damages for trespass, and costs. ISSUE No. e). Who bears the costs of the suit and Counter – Claims 287. The issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of any legal action or proceeding in any litigation process. The general principle is that costs follow the event, unless the Court for good reason orders otherwise. This principle is codified under the provision of Section 27(1) of the Civil Procedure Act, Cap. 21, Laws of Kenya which provides: JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 107 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 288. The Black Law Dictionary defines cost to means:“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other” 289. Additionally, the provision provides for ‘costs of and incidental to all suit or application’ which expression includes not only costs of suit but also costs of application in suit as described by Mulla (supra) at 536. Furthermore, Rtd. Justice Richard Kuloba in his book Judicial Hints on Civil Procedure, 2nd Edition, 2005 at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. Accordingly, the event means the result of the entire litigation. The order as to costs as provided for under Section 27 remains at the discretion of the court. 290. The award of costs is therefore not cast in stone but courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the suit but also the circumstances of each case. In “Morgan Air Cargo Limited – Versus - Evrest Enterprises Limited [2014] eKLR” the court noted that; JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 108 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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“The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that ‘’Cost follow the event’’ was driven by the fact that there could be no ‘’one-size-fit-all’’ situation on the matter. That is why section 27(1) of the Civil Procedure Act is couched the way it appears in the statute; and even all literally works and judicial decisions on costs have recognized this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances differ from case to case.” 291. In the present case, the Plaintiffs’ claim for adverse possession has outrightly failed. On the contrary, both the 1 st and 2nd Defendants have successfully proved their Counter - Claims, establishing ownership of the suit property, demonstrating trespass by the Plaintiffs, and securing reliefs including declarations, injunctions, mandatory demolition orders, and damages. 292. Given that the Plaintiffs have not succeeded in their claim, while the Defendants have succeeded in their Counter - Claims, the Court finds no reason to depart from the general principle. The Plaintiffs must therefore bear the costs of the suit and the Counter - Claims. 293. The Honourable Court finds that the Plaintiffs shall bear the costs of the suit and the Defendants’ Counter - Claims. Hence, costs are awarded to the 1 st and 2nd Defendants jointly and severally, to be taxed and paid by the Plaintiffs. VIII. Conclusion and Disposition 294. In long run, having conducted an in-depth analysis of the framed issues JUDGMENT: ELC NO. 189 OF 2021 (O.S.) herein, the Page 109 of 112 Honourable Court, on the HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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preponderance of probabilities, finds that the Plaintiffs have not established their claim for land adverse possession. Ideally, the Plaintiffs have failed to demonstrate uninterrupted, exclusive, and adverse possession of the suit property for a period exceeding the statutory twelve (12) years. Conversely, the 1 st and 2nd Defendants have successfully proved their claims as founded under the Counter - Claims, having established valid ownership of the suit property, demonstrated unlawful trespass by the Plaintiffs, and shown entitlement to the reliefs sought. Accordingly, for avoidance of doubt the Court proceeds to make the following specific orders:a) THAT Judgement be entered to the effect that the Plaintiffs’ suit as per the Originating Summons dated 13th September, 2021 be and is hereby dismissed in its entirety with costs. b) THAT an order made to wit that the 1 st and 2nd Defendants’ Counter - Claim dated 24 th February, 2023 and 12th June, 2023 respectively succeeds and are hereby allowed entirely. c) THAT a declaration be and is hereby made that the 1 st and 2nd Defendants are the lawful, registered, and absolute proprietors of Plot No. 20948/I/MN, CR. 63882, and their titles stand protected under the provision of Section 24, 26, 26 of the Land Registration Act, No. 3 of 2012. d) THAT a declaration be and is hereby made that the Plaintiffs’ entry and occupation of the suit property amounts to trespass. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 110 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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e) THAT a permanent injunction be and is hereby issued restraining the Plaintiffs, jointly and severally, their agents, servants, or any other persons claiming under them from entering upon, interfering with, or in any manner dealing with the suit property. f) THAT pursuant to the provision of Section 152E of the Land Act, No. 6 of 2012, a mandatory order be and is hereby issued directing the Plaintiffs to demolish and remove all illegal structures erected on the suit property WITHIN THE NEXT NINETY (90) DAYS from the date of the delivery of this Judgement. In default, the 1 st & 2nd Defendants are at liberty to demolish and remove the said structures at the Plaintiffs’ cost, with police assistance to ensure peace and compliance. g) THAT the 1st & 2nd Defendants are each awarded general damages for trespass assessed at a sum of Kenya Shillings Five Million (Kshs. 5,000,000/=). h) THAT the Plaintiffs shall bear the costs of the suit and the 1st & 2nd Defendants’ Counter - Claims jointly and severally. IT IS SO ORDERED ACCORDINGLY. JUDGMENT DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED AND DATED AT MOMBASA THIS……… 2ND ………DAY OF ………OCTOBER.……..2026. ……….................…………………… HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT MOMBASA Judgement delivered in the presence of: a) M/s. Firdaus Mbula, the Court Assistant. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 111 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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b) M/s. Chengo Advocate holding brief for Mr. Kenga Advocate for the Plaintiffs/Applicants. c) Mr. Okoko Advocate for the 1st Defendant/Respondent. d) Mr. Musyimi Advocate for the 2nd Defendant/Respondent. JUDGMENT: ELC NO. 189 OF 2021 (O.S.) Page 112 of 112 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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