Obare v Oduor

2. iv. What is the cumulative and/or total period or duration of such occupation to date? v. Was the entry or ingress into the said parcel of land without the permission, let and/or at the instance of the Respondent and/or the previous registered owner? vi. Has the Applicant fullled all and singular the requirements for a declaration for the extinction of the registered proprietor's interests in the said parcel of land and the registration of the same in his favour by virtue of the doctrine of adverse possession? vii. Should a declaration be made that the ownership and proprietary rights and interests of the registered owner be and is hereby extinguished as the Respondent holds the subject parcel of land Siaya/KARAPUL/666 measuring approximately 0.08HA in trust for the Applicant? viii. Should an order issue to the Land Registrar, Siaya, for the registration of the Applicant as the proprietor of the said parcel of land in place of the Respondent? ix. Who should meet the costs of this suit? The Applicant specically seeks the following orders: a. That a declaration be made that the Respondent's rights over the property being Siaya/ Karapul/666 is extinguished under the Limitation of Actions Act, Chapter 22, Laws of Kenya, and the title thereto extinguished on the grounds that the Applicant has openly, peacefully and continuously been in occupation and possession of the aforesaid parcel of land for a period exceeding 12 years. b. That there be an Order directed at the Respondent to transfer to the Applicant the property being Siaya/KARAPUL/666 measuring approximately 0.08HA, failing which the Deputy Registrar do sign the requisite forms to eect the transfer. c. That the costs of this Originating Summons be borne by the Respondent. 3. The Applicant swore a Supporting Adavit dated 14ᵗʰ March, 2024 in support of the Originating Summons. He avers that the Respondent is the registered proprietor of LR. Siaya/Karapul Ramba/666 and that he has occupied the suit parcel LR. Siaya/Karapul Ramba/666 for a period of over 30 years, having been left the same by his late father who passed on in the year 1958 and that he has to date remained in occupation thereof, cultivating the land and undertaking subsistence farming thereon. 4. The Applicant avers that at some point he received compensation from the Siaya District Treasury when a road annexed part of the suit property and exhibited a copy of a cheque in that regard marked POO-2. 5. He avers that sometime in the year 2022, the Respondent invaded the suit parcel and began to cultivate the same without any recourse to him, which prompted him to conduct an ocial search, whereupon he was surprised to discover that the Respondent had procured registration of the title in his favour on 14ᵗʰ April, 2021. 6. The Applicant avers that he has been in occupation and possession of the suit parcel for a period in excess of 30 years, peacefully and without interruption and that there is no single day during the said period that the registered owner, or the Respondent, ever came to ask why he was in occupation or that he should vacate, prior to the Respondent's alleged invasion of the suit parcel in 2022. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 2

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7. He avers that he has thereby acquired adverse rights to the suit property as against the registered proprietor, and that he has fullled all the requirements for a declaration of extinction of the registered proprietor's interest. He prayed that the application be allowed. The Respondent's Case 8. Upon service of the Originating Summons, the Respondent led a Replying Adavit sworn on 28ᵗʰ May, 2024 in opposition thereof. The Respondent deponed that it is apparent that the Applicant is not being candid with the court and that the Originating Summons is malicious, vexatious, an abuse of the court's process and judicial time and totally without merit. 9. The Respondent deponed that he is the registered owner of the suit land parcel known as LR. NO. Siaya/Karapul Ramba/666 measuring 0.08 Ha, which was gifted and or given to him by the husband to his mother's sister, one Cleopa Nelson Handa A.k.a Nelson Handa Matoke his uncle-in-law, whom he refers to in the Luo language as 'his father', and that the registration of the land parcel in his name, done on 14ᵗʰ April, 2021, was legal pursuant to Section 26 of the Land Registration Act, No. 3 of 2012. 10. The Respondent deponed that the suit land parcel initially belonged to and or was registered in the names of his said uncle-in-law, Cleopa Nelson Handa A.k.a Nelson Handa Matoke, who was registered on the land on 6ᵗʰ July, 1998. He deponed that prior to having the land registered in his own name, they duly executed transfer documents dated 24ᵗʰ March, 2014, made an application for consent of the Land Control Board dated 3ʳᵈ March, 2014, which was approved on 4ᵗʰ March, 2014, and had a letter of consent issued vide a meeting of the Board held on 4ᵗʰ March, 2014 (L.O.R No. 162/14), as required under Section 8(2) of the Land Control Act and thereafter paid stamp duty on 13ᵗʰ January, 2016 as required under Section 5 of the Stamp Duty Act. 11. He deponed that the Applicant has never stepped foot on the suit land, nor ever used it in any way and that the Applicant instead has his own land parcel known as LR. NO. Siaya/Karapul Ramba/654, neighbouring the suit land, upon which the Applicant's home is situated. He deponed that the Applicant's claim to have occupied the suit parcel for over 30 years, ever since the year 1958, is false and untrue. 12. The Respondent deponed that his uncle-in-law, Cleopa Nelson Handa A.k.a Nelson Handa Matoke, had himself acquired the suit land parcel through purchase on 16ᵗʰ August, 1975 from its then owner, one JOHANES OWIRO OBARE (now deceased), at Kshs. 2,500/-, vide a written land sale agreement dated 16ᵗʰ August, 1975 and an acknowledgement note dated 2ⁿᵈ December, 1979. 13. The Respondent deponed that the suit land bears no structure of any kind and that since his uncle-inlaw's purchase of the property, it has been used exclusively for farming rst by his uncle-in-law and now by himself, for as long as either could remember and that he had currently tilled the land and planted crops for the ongoing planting season. 14. The Respondent deponed that even from the Applicant's own documents used as evidence in the suit, namely the green card to the suit parcel dated 23ʳᵈ June, 2023, it is clear that the suit land belonged to Cleopa Nelson Handa A.k.a Nelson Handa Matoke. 15. He pleaded that the Applicant and his advocates were abusing the judicial process and invoked the equitable maxim that he who comes to equity must come with clean hands. He prayed that the Originating Summons be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 3

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Hearing And Evidence 16. On 17ᵗʰ March, 2025 the court directed that the Originating Summons be converted to a Plaint and the Replying Adavit be converted to a Defence. The Court further directed that the suit proceeds by way of viva voce evidence. The case was heard on 5ᵗʰ November, 2025. The Applicant's Case 17. The Applicant, Philip Ochieng Obare, testied as PW1. He adopted his witness statement as his evidence-in-chief and relied on the documents in his list of documents dated 4ᵗʰ November, 2025, produced as PEX 1-6, comprising the Ocial Search Certicate dated 24ᵗʰ May 2023, Green Card dated 23ʳᵈ June 2023, adjudication records, a copy of a cheque in his name and minutes of a land dispute meeting held on 3ʳᵈ July, 2022. 18. He testied that he has stayed on the suit land for more than 30 years and that he came to know the Respondent when the Respondent entered the land in 2022. He testied that he asked the Respondent why he had entered the land but that the Respondent refused to speak to him. He testied that he had never met one Cleopa Handa Matoke And that he only came to know of him upon seeing his name on the Green Card. He testied that the suit land used to belong to his grandfather, who left it to his father and that upon his father's death, it passed to his mother and that he is the one who has remained on the shamba to date. He testied that he had never seen anyone lay claim to the land until 2022. 19. On cross-examination by Mr. Ochanyo, Counsel for the Respondent, PW1 stated that he lays claim to plot No. 666 and that although paragraph 1 of the grounds supporting the Originating Summons made reference to GEM/WAGAI/1902, his claim was in respect of plot No. 666, where he had lived for over 35 years, since 1954, when his mother died and left him the land. He produced his identication card in court. 20. He testied that in 1984 the parcel No. 666 was registered in the name of Cleopa Nelson Handa and that registration in the area, East Alego, Karapul Ramba, had started in 1987. Upon being referred to the adjudication record produced as PEX 3, he conrmed that plot No. 654 was recorded in his own name, Philip Ochieng Obare and that plot No. 656 was recorded in the name of his elder brother, John Owino Obare and that he holds the title to plot No. 654. He conrmed that the adjudication record showed that Cleopher Nelson Matoke was recorded in respect of the suit parcel and that he did not appeal that registration at the time. 21. PW1 further testied that he had produced a cheque as part of his evidence and that he knew the cheque to be payment for the acquisition of a portion of plots 654 for road construction and was shown the same at page 18 of the Respondent's bundle. He testied that the cheque was in respect of the road, referred to as a bypass, which passed through his land and other parcels and that the said road was constructed by the Government of Kenya, which paid persons found on the aected land. He conceded that the cheque itself did not indicate any specic plot number, but insisted that the payment related to plot No. 654. 22. When it was put to him that paragraph 4 of his Supporting Adavit indicated that the road had annexed part of the suit property, plot No. 666, he maintained that he had not lied to the court, that he was before the court in respect of plot No. 666 and that the cheque, though not indicating a plot number, was in his own understanding paid in respect of plot No. 654. 23. PW1 was referred to the minutes of the land dispute meeting of 3ʳᵈ July, 2022, produced as PEX 5 and conrmed that he was present at the said meeting, appearing as No. 8 on the attendance list but that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 4

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the Respondent, Maurice Kevin Oduor was not present the meeting having concerned a homestead dispute in which he was the complainant against one Charles Otieno Owino and having concerned plots No. 656 and No. 2467, whose owner he could not recall. He conceded that the said meeting did not concern plot No. 666. He was shown the title deed for plot No. 666 and conrmed that the Respondent had obtained the same on 14ᵗʰ April, 2021, being about four years prior to the hearing. He testied that were the court to visit plot No. 666, it would nd nothing on the land, that there was no fence and that no one had been cultivating it. He avers that he cultivated the land for two years and left. The Respondent cultivated the suit land after obtaining the title deed cut down my old trees, though he conceded that he had no report from an agricultural ocer to substantiate that the trees had been cut down by the Respondent. 24. On re-examination by Mr. Abande, Counsel for the Applicant, PW1 reiterated that the cheque related to plot No. 654 and that he had produced it because there was a meeting that had given him the land. He testied that the road passed through several plots, namely 654, 652 and 666 and that he had been on the land for over 35 years. He testied that the land had been registered in the name of his parent, one Peter Obare Owino, who had been given the land by his own father, Owino. Counsel for the Respondent objected to this as a new issue not previously raised as to the names of PW1's father and grandfather. PW1 maintained that he never used to cultivate crops on plot No. 666 and that he was, to date, laying claim to the same and that although the adjudication record showed plot No. 666 as having been recorded in the name of Cleopa Nelson Handa, the land dispute meeting he had earlier referred to had concerned all the plots and their mother title. 25. Upon the conclusion of PW1’s testimony, Mr. Abande, Counsel for the Applicant, indicated that he had one further witness, one Alfred Ogutu, whose witness statement had been shared with the Respondent's counsel. Mr. Ochanyo, Counsel for the Respondent objected to the same on the ground that the said witness statement had only been shared on the day of the hearing and that he had come prepared for one witness only and urged that the Applicant's case be closed. Mr. Abande, in light of the objection, elected to close the Applicant's case without calling the said witness, so that the matter could proceed to the Respondent's witness. 26. The court thereupon marked the Applicant's case as closed. The Respondent's Case 27. Maurice Kevin Oduor testied as DW1. He testied that he resides in Pandi Estate and is a businessman. He adopted his Replying Adavit sworn on 28ᵗʰ May, 2024, together with the annexures thereto and his witness statement dated 19ᵗʰ November, 2024, as his evidence-in-chief, both of which were adopted by the court. He testied that all the documents annexed to his Replying Adavit were listed in his list of documents dated 19ᵗʰ November, 2024 and the same were produced and admitted as DEX 1-13. 28. DW1 testied that he knows the Applicant as his neighbour, that he himself is on plot 666, while the Applicant is on plot 654 and that upon reference to the map extract produced as DEX 11, at page 18 thereof, he could see that between plots 666 and 654 lie two other plots, Nos. 656 and 2457. He testied that the Applicant had sued him on the basis that he had lived on plot 666 for over 35 years, a claim which he had never heard the Applicant make in court and which he termed a lie. He testied that, while aware that the Applicant's claim was one for adverse possession, he sought and was given an explanation by counsel that the doctrine entailed a stay on another's land for over 12 years, entitling the occupant to claim the land in court. He testied that he had lived on plot 666 from 2014 and was issued with the title thereto in 2021, some four years prior to the hearing, having before then been given https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 5

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the land by his father, one Cleopa Handa Matoke, who was married to his mother's sister, his uncle. He prayed that the suit be dismissed with costs. 29. On cross-examination by Mr. Abande, Counsel for the Applicant, DW1 testied that he rst met the Applicant in 2022 and that he rst started cultivating plot 666 in 2015, which he described, upon further inquiry as to the meaning of 'dealing' with the land, as cultivating it. He testied that he was given the land as a gift and did not pay anything for it and that he transferred the land into his own name in 2021. He testied that he did not know who owned the land before Matoke. Upon being referred to the adjudication record, he identied a name, Charles Oyuga Oyuga, which had been cancelled and stated that he did not know that person and identied the name Cleopher N. Handa, whom he referred to as his father, and who he said was married to his mother's sister, though he had no proof of that marriage, and stated that the said Handa resides in Bondo, was not his witness in the suit. 30. DW1 was referred to paragraph 7 of his Replying Adavit, in which he referred to a land sale agreement dated 16ᵗʰ August, 1975 the vendor whereof was one James Owiro Obare, selling to Nelson Handa Matoke and testied that it was Matoke who had given him the said agreement. He testied that the buyer, Nelson Handa Matoke and Cleophas Handa Matoke, were dierent persons, but that it was the vendor who had sold him the land. He conceded that he had no copy of the identity card of either Nelson Handa Matoke or Cleophas Handa Matoke and that although the agreement showed a payment of Kshs. 1,000/- leaving a balance of Kshs. 1,500/-, he could not see the identity card numbers of the parties thereto. He was further referred to a handwritten acknowledgement at page 20 of his bundle and stated that he did not know who had drafted it and that he did not know one Johanes Owino, who ought to have been a witness thereto. 31. DW1 conrmed that he held the title deed to the suit parcel at page 7 of his bundle, issued to him in 2021 and identied the earlier title at page 8 of his bundle, issued in the name of Cleopa Nelson Handa on 6ᵗʰ July, 1998, as well as the transfer at page 9 thereof. He conceded that he did not buy the land and only had the sale agreement and that the transfer document did not refer to the transaction as having been on the basis of a gift. He conrmed that the transfer was dated 24ᵗʰ March, 2014 but maintained that he had told the court he only started dealing with the land in 2015 and explained that he had taken the title only in 2021 because he had a sick wife and child and lacked the money to process the title earlier. He testied that Handa was his relative and that while he believed Nelson Handa Matoke and Cleopa Nelson Handa to be one and the same person, he had no proof of this and conceded that he could not, in truth, tell whether they were the same person. 32. He conceded that he had no evidence of his cultivation of the land from 2015 that he did not know whether Johanes Owiro Obare was related to the Applicant, and that he had rst seen the Applicant and come to know him by face, only in 2022. He testied that he did not know one Joanes Owiro and did not know anyone else associated with the Applicant. He testied that he is 43 years old and that he was 32 years old in 2015. 33. On re-examination by Mr. Ochanyo, Counsel for the Respondent, DW1 testied that by 'dealing' with the land from 2015 he meant that he had been doing something on it, and had cultivated it from that year. He testied that although the adjudication record showed other documents against plot 666, the Applicant had also produced a clean Green Card which bore no name for Charles Oyuga Oyuga, the name that had been cancelled. He testied that he was not one of the parties to the sale agreement of 16ᵗʰ August, 1975, nor to the acknowledgment at page 20 and that he had not been born in 1982. He testied that upon comparing the 1975 agreement with the Applicant's Green Card for plot 666, produced as PEX 2, the name Johanes Owiro, appearing on the agreement, did not feature on the Green Card, and maintained that, to him, Nelson Handa Matoke (Cleopa Handa Matoke) and Cleopa Nelson Handa are one and the same person. He was referred to an entry of the said Green Card and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 6

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stated that against the entry of 6ᵗʰ July, 1998, there appeared, at the far end, the notation 'C/Name', which he understood to mean a change of name. 34. Mr. Abande objected to this line of testimony, on the ground that counsel was himself testifying and that it was unclear what 'C/Name' meant. Mr. Ochanyo submitted that he had asked a specic question, and that it was the witness who had proered the interpretation upon reading the exhibit. The court, having followed the exchange keenly, found that it was in fact Mr. Ochanyo who had suggested to the witness that 'C/Name' meant a change of name and sustained the objection. Mr. Ochanyo thereupon abandoned the question. 35. Re-examination continued, with DW1 testifying that the transfer at page 9 of his bundle made no reference to the money paid and that, as regards proof of his cultivation of the land since 2015, he had not known at the time that a case would be brought before court, it being the Applicant who had brought him to court. 36. With the foregoing, the Respondent's case was closed. Submissions 37. The Court directed both parties to le their nal written submissions. The Respondent led submissions dated 8th December, 2025 while the Applicant led submissions dated 20th March, 2026. The Applicant's Submissions 38. The Applicant led his written submissions on 20ᵗʰ March, 2026, well outside the 21-day period directed by the court on 5ᵗʰ November, 2025. Learned Counsel for the Applicant submitted that the submissions were led in support of the Originating Summons dated 15ᵗʰ March, 2024, brought pursuant to Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, 2010 and that the Applicant sought a declaration that, by virtue of open, peaceful, continuous and uninterrupted occupation of the suit parcel for a period exceeding twelve years, the Respondent's title had been extinguished and that the Applicant be registered as proprietor thereof. 39. Counsel submitted that at the hearing the Applicant had testied and adopted his witness statement and adavit evidence and that the Respondent, though having led documents, did not testify, so that the Applicant's oral evidence stood uncontroverted. Counsel submitted that it was not in dispute that the Respondent was the current registered proprietor of the suit parcel and framed the issues for determination as (a) whether the Applicant had met the legal threshold for acquisition of title by adverse possession, and (b) who should bear the costs of the application. 40. On the law, Counsel submitted that the doctrine of adverse possession is anchored in Sections 7, 13, 17 and 38 of the Limitation of Actions Act and reproduced the said provisions in full. Counsel relied on Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR), for the principle that adverse possession contemplates occupation inconsistent with the title of the true owner and that time begins to run when the true owner is dispossessed or discontinues possession; on Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] KECA 161 (KLR), for the proposition that a claimant must prove exclusive, open possession as of right and without interruption for twelve years; on Mtana Lewa v Kahindi Ngala Mwagandi, for the description of adverse possession as arising from the default or inaction of the owner, requiring possession that is neither by force nor stealth nor under licence and adequate in continuity, publicity and extent; and on Mbira v Gachuhi [2002] 1 EARL 137, for the requirement of non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 7

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41. Counsel submitted that the above authorities crystallized three elements which the Applicant had satised namely, possession for a continuous period of twelve years, the intention to occupy the land as one's own to the exclusion of the registered owner, and possession without force, without secrecy and without permission. 42. Applying the law to the facts, Counsel submitted that the Applicant's uncontroverted evidence of tilling the suit land for over 30 years showed that he had surpassed the 12 year threshold decades ago, and that his evidence of having been compensated by the Siaya District Treasury in 1976, when a road annexed part of the suit property, showed that he was already adversely possessing the land as early as 1976, decades before the Respondent obtained title in 2021, a period in respect of which the Respondent had no evidence of ever occupying the property. Counsel submitted that the Respondent had been unable to conclusively explain how he acquired the suit property. The documents led by the Respondent did not indicate, particularly on the transfer document, that the transfer was by way of a gift, that there was no sale agreement to indicate a sale and that the Respondent had not called as a witness the person who allegedly transferred the property to him. 43. Counsel further submitted that the Applicant had been clear that he had been living on the suit parcel, which belonged to his late father, as ancestral land a position said to be supported by the Respondent's own document, the agreement dated 16ᵗʰ August, 1975, which Counsel submitted showed the Applicant's father selling the property to one Hesbon Handa Matoke, while objecting to the allegation, made without proof, that Hesbon Handa Matoke was the same person as Cleopa Nelson Handa. Counsel submitted that the Applicant had demonstrated, through clear and uncontroverted evidence, actual, open and continuous possession exceeding twelve years, to the exclusion of the registered owner and without force, secrecy or permission, satisfying the principles of nec vi, nec clam and nec precario and that the Applicant's oral evidence was fully aligned with his sworn adavit and witness statement. Counsel submitted although the Respondent alleged that the Applicant never occupied the land, he failed to testify and did not subject his claims to cross-examination, leaving the Applicant's evidence uncontroverted. 44. Counsel submitted that the Respondent's own documents showed that his predecessor, Cleopa Nelson Handa, was registered in 1998 and the Respondent himself in 2021 and relied on Githu v Ndeete [1984] KLR 776, for the principle that time which has begun to run against a registered proprietor is not interrupted by a mere change of ownership of the land. 45. Counsel submitted that if the Applicant was in occupation from 1958, time ran against the predecessor in title, such that by 2010 at the latest, twelve years had lapsed since the predecessor's 1998 registration and that the Respondent's 2021 registration could not revive already extinguished rights. 46. It was submitted that by operation of Sections 7 and 17 of the Limitation of Actions Act, the registered owner's title becomes extinguished upon expiry of the limitation period and that the Respondent's entry onto the land in 2022 could not defeat rights that had already accrued to the Applicant. 47. On costs, Counsel submitted that costs follow the event and urged the court pursuant to Section 27 of the Civil Procedure Act, to award the costs of the suit to the Applicant. In conclusion, Counsel submitted that the Applicant had demonstrably satised the legal threshold for acquisition of title by adverse possession and urged the court to nd that the Applicant's rights over the suit property had crystallised, to order his registration as proprietor and to award him the costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 8

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The Respondent's Submissions 48. Learned Counsel for the Respondent in submissions led on 8ᵗʰ December 2025, framed three issues for determination namely: (a) whether the Respondent is the bona de owner of the suit land parcel; (b) whether the Applicant has proved ownership by adverse possession; and (c) whether the Applicant's written submissions, led after the expiry of the 21 days issued by the court, are admissible. 49. On the rst issue, Counsel submitted that the applicable law at the time the Respondent acquired his title was Section 26(1) of the Land Registration Act, No. 3 of 2012 and reproduced Section 26 of the Act in full. Counsel relied on Joseph Kipchirchir Koech v Philip Cheruiyot Sang [2018] eKLR, for the proposition, drawn from Sections 24, 25(1) and 26 of the Land Registration Act, that registration vests absolute ownership and that a registered proprietor's rights are protected from defeat save as provided in the Act and on Charles Karethe Kiarie & 2 Others v Administrators of the Estate of John Wallace Muthare (deceased) & 5 Others (2013) eKLR, for the proposition that under the Torrens system of registration the title of a bona de purchaser for value without notice of fraud cannot be impeached, the register being intended to mirror all currently active registrable interests, its accuracy guaranteed by the State. 50. On the second issue, Counsel submitted that the Applicant's sole intention was to take over the Respondent's property despite the Applicant having his own land, LR. NO. Siaya/Karapul Ramba/654 and relied on Wambugu v Njuguna [1983] KLR 172, both for the principle that a registered owner's title can only be defeated by dispossession or discontinuance of possession and for the proposition that the proper inquiry is whether the title holder has been dispossessed or has discontinued possession for the statutory period, rather than merely whether the claimant has proved the requisite years of possession. Counsel further relied on Section 38 of the Limitation of Actions Act, on Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR and on Mbira v Gachuhi (2002) 1 EALR 137 for the elements of adverse possession, namely non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption, arising from the default or inaction of the registered owner. 51. Counsel submitted that the suit land had no structure of any kind and that the Respondent's unclein-law and thereafter the Respondent, had used it exclusively for farming, having tilled and planted crops for the then current planting season, as shown by photographs led by the Respondent. Counsel submitted that the Applicant had never stepped foot on the suit parcel or used it in any way, having his own land parcel, No. 654, neighbouring the suit land and that the Applicant's allegation of occupation since 1958 was false, a position said to be supported by a section of a map led by the Respondent showing the position of both parcels and by the Applicant's own admissions on cross-examination that he owned parcel 654 while his brother owned parcel 656. 52. Counsel relied on Article 40(1) of the Constitution, for the right of every person to acquire and own property, and submitted that as the registered proprietor, the Respondent's rights were protected under Section 26 of the Land Registration Act. Counsel relied on Republic v Land Registrar Taita Taveta District & another [2015] eKLR, for the proposition that the court must uphold the rule of law with regard to a registered proprietor's rights until fraud is established to the required standard, and that any claim of fraud, misrepresentation or illegality in the acquisition of property must be properly proved. Counsel further relied on Park View Shopping Arcade v Kangethe & 2 Ors (KLR) (E&L) 592, for the proposition that the Constitution safeguards the sanctity of private property, and that it is not proper to forcibly occupy a registered owner's land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 9

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53. On the third issue, Counsel submitted that the directions of the court on 5ᵗʰ November, 2025 required the Applicant to le his submissions within 21 days, being on or before 26ᵗʰ November, 2025 and that as at 8ᵗʰ December, 2025, no such submissions had been led or served in violation of the court's directions. Counsel urged that any submissions led outside the issued period ought to be struck out relying on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR, and on Nick Salat v Independent Electoral and Boundaries Commission & 7 others, for the proposition that time is a crucial component in the dispensation of justice, such that justice delayed is justice denied and that litigants have a legitimate expectation that their disputes will be determined timeously. Counsel further relied on Hadkinson v Hadkinson (1952) 2 All ER 567, for the principle that court orders and timelines are sacrosanct and must be obeyed. 54. Counsel prayed that the court nd no merit in the Originating Summons and dismiss it with costs to the Respondent, for being malicious and an abuse of the court's process and relied on John Njue Nyaga v Nicholas Njiru Nyaga & Another (2013) eKLR, for the principle that one who comes to equity must come with clean hands submitting that the Applicant had not done so and was undeserving of the orders sought. ANALYSIS AND DETERMINATION 55. I have considered the pleadings, the evidence on record and the submissions led by counsel for the parties. Arising therefrom, I am of the view that the following issues stand for determination: i. Whether the Applicant’s written submissions should be struck out for having been led out of time. ii. Whether the Applicant has proved that he has acquired LR No. Siaya/Karapul Ramba/666 by adverse possession. iii. Whether the Respondent’s title to the suit property has been extinguished. iv. Who shall bear the costs of this suit? Whether the Applicant’s written submissions should be struck out for having been led out of time. 56. Counsel for the Respondent, relying on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR and Hadkinson v Hadkinson (1952) 2 All ER 567, urged this court to strike out the Applicant's written submissions for having been led some four months out of the 21 days directed on 5ᵗʰ November, 2025 and without leave. 57. It is not in dispute that the Applicant did not le his submissions within the 21 days given on 5th November, 2025. However, on 9th December, 2025 this court granted the Applicant a further 14 days and the Respondent’s Counsel did not oppose that request. The Applicant’s submissions dated 20th March, 2026 were therefore led well outside even the extended time. 58. Timelines set by the court are meant to be obeyed and I do not condone the delay. That said, submissions are not evidence. They are counsel’s summary of the case and the law, and they cannot add to or take away from the evidence on record. The court decides the case on the pleadings and the evidence tendered at the hearing. The Respondent has not shown what prejudice he has suered from the late ling, since he had already led his own submissions and the Applicant’s submissions raise no new evidence. Guided by Article 159(2)(d) of the Constitution, which requires the court to do justice without undue regard to procedural technicalities, I decline to strike out the Applicant’s submissions. I have considered them. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 10

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Whether the Applicant has proved that he has acquired LR No. Siaya/Karapul Ramba/666 by adverse possession. 59. Adverse possession was dened by the Court of Appeal in Mtana Lewa vs Kahindi Ngala Mwagandi (2015) eKLR as follows: “ 6. 60. … Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is averse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act…” The doctrine of adverse possession is codied in the Limitation of Actions Act, which at Section 7 of provides that: “ “ 7. Actions to recover land 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 rst accrued to some person through whom he claims, to that person.” 61. Section 13(1) of the same Act makes it clear that time only runs where there is adverse possession. It provides that: “ A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession) …” 62. The burden of proving adverse possession lies on the person who claims it. Section 107(1) of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 109 of the Evidence Act adds that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. It is therefore the Applicant and not the Respondent who must prove his possession of the suit property by adverse possession on a balance of probabilities. 63. The elements the Applicant must prove are well settled in Titus Kasuve v Mwaani Investments Limited & 4 others [2004] eKLR, the Court of Appeal held that: “ In order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of land openly and as of right and without interruption for a period of twelve years either after dispossessing the owner or by discontinuation of possession by the owner …” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 11

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64. In Kisumu Civil Appeal No. 27 of 2013; Samuel Kihamba vs Mary Mbaisi [2015] eKLR, the court stated as follows: “ Strictly, 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 force, without secrecy, 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 phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land” 65. It has since been established that a party seeking to succeed in a claim founded on adverse possession must establish on a balance of probabilities, the following essential elements: 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 has continued and e. that the possession was open and undisturbed for the requisite 12 years. 66. I will now examine the evidence against each of the above elements and the elements. 67. Regarding the date of entry, the Applicant did not give one clear account of when and how he came onto the suit property. In his Supporting Adavit, he stated that the land was left to him by his late father, who died in 1958. In cross-examination, he stated that he has been on the land since 1954, when his mother died and left it to him. In his evidence in chief, he avers that the land passed from his grandfather to his father and then to his mother. In re-examination, he stated that the land was in the name of his father, Peter Obare Owino, who was given by his own father. In the OS he claimed 30 years of occupation, while in court he spoke of 35 years. These are not small dierences. A claimant must tell the court with some certainty when his possession began, because that is the date from which time is computed. 68. Consequently, the Applicant’s own case is that the suit property is family land which he inherited from his late father. His Counsel expressly submitted that the land is ancestral land belonging to the Applicant’s late father. By claiming the land through inheritance, the Applicant is asserting a right to the property. He is therefore not claiming that he took possession of land belonging to another person and occupied it without that person’s consent. The two claims are inconsistent and cannot stand together. In this regard, I am guided by Haro Yonda Juaje vs Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR, where the court stated thus: “ One cannot claim to have acquired land by adverse possession if he claims that the land, he is occupying is his ancestral land having been born and brought up on the land and the registered owner has never been in possession of that land….one cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. It does not lie in the mouth of a claimant to aver that the title held by the registered proprietor was fraudulently acquired and then claim the same parcel of land under the doctrine of adverse possession.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 12

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69. On the nature of the Applicant’s possession, the evidence before the Court is limited. The Applicant stated that he cultivated the suit property but he did not explain what crops he grew or when he cultivated them. He did not produce photographs, evidence of any house or other structure on the land or call any neighbour, village elder, chief or other person who could testify that he occupied or used the land. Similarly, the Applicant’s claim that the Respondent cut down his old trees was not supported by any evidence. 70. The Applicant had also stated in the Originating Summons that he had constructed a permanent structure on the suit property. However, this claim was not supported by his evidence at the hearing. On the contrary, the Applicant himself told the Court that, if it visited the suit property it would nd nothing on the land, no fence and no one cultivating it. This evidence is inconsistent with his earlier claim that he had put up a permanent structure on the property. 71. The documents produced by the Applicant also do not support his claim that he occupied or used the suit property, Plot No. 666. The cheque (PEX 4) does not indicate any plot number. The Applicant himself stated more than once that the cheque related to payment for Plot No. 654, which is his own parcel of land. This is inconsistent with paragraph 4 of his Supporting Adavit, where he stated that the compensation was for part of the suit property. 72. The minutes dated 3rd July 2022 (PEX 5) concern a dispute over Plots Nos. 656 and 2467 involving one Charles Otieno Owino. The Applicant conrmed that the meeting did not concern Plot No. 666. The adjudication record (PEX 3) shows that Plot No. 666 was recorded in the name of Cleopher N. Handa, while Plot No. 654 was recorded in the Applicant’s name. The green card (PEX 2) and the ocial search (PEX 1) only conrm the registered ownership of the suit property. None of these documents shows that the Applicant ever occupied, cultivated or used Plot No. 666. They therefore do not support his claim of adverse possession over the suit property. 73. It is not disputed that the Applicant is the registered owner of the neighbouring Plot No. 654. The map extract (DEX 11) shows that there are two other parcels of land between Plot No. 654 and the suit property, Plot No. 666. The Applicant’s home is also situated on Plot No. 654, which is his own land. 74. The fact that the Applicant lives on his own neighbouring land does not, by itself, mean that he also occupies or uses Plot No. 666. It is possible for a person to possess land next to his own property, but where, as in this case, the Applicant claims to have occupied the suit property for many years, he must provide clear evidence to prove that occupation. The Applicant has not done so. His evidence does not clearly show that he occupied or used Plot No. 666 for the period claimed. 75. Possession for purposes of adverse possession must be actual, open, exclusive and continuous. In Mbira v Gachuhi (2002) 1 EALR 137, the court held as follows: “ ... 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...” 76. The Court of Appeal in Wambugu vs Njuguna [1983] KLR 172 also explained where the focus should be, as follows: “ In order to acquire by the statute of limitations title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 13

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which are inconsistent with his enjoyment of the soil for the purpose of which he intended to use it.” 77. There is no evidence before me that Cleopher Handa Matoke, Cleopa Nelson Handa or the Respondent was ever dispossessed of the suit property by the Applicant or that any of them discontinued possession of it. The Applicant told the court that he has never met Cleopa Handa Matoke. On his own evidence, the Respondent entered the land in 2022 and cultivated it, which is the conduct of an owner in possession and not of an owner who has been dispossessed. 78. I have noted that the Respondent’s own evidence of his cultivation since 2015 was not supported by documents and that his photographs appear to have been taken in March, 2024. However, it is not for the Respondent to prove that he was in possession. As I have stated, the burden lies squarely on the Applicant. Any weakness in the Respondent’s evidence does not ll the gaps in the Applicant’s case. 79. I will now address whether the registered owners knew of the Applicant’s alleged occupation of the suit property. For adverse possession to arise, the Applicant must show that the registered owner knew or ought reasonably to have known that he was occupying the land without permission and failed to take action. The green card shows that Cleopher Handa Matoke was the rst registered owner of the suit property from 14th May, 1987. The Applicant testied that he never met Cleopher Handa Matoke during the period when he was the registered owner. He therefore did not show that Cleopher Handa Matoke knew that he was allegedly occupying or using the suit property. The Applicant further testied that he rst met the Respondent in 2022 when, according to him, the Respondent entered the suit property and refused to speak to him. This was the rst time, according to the Applicant’s own evidence, that he came into contact with the Respondent. 80. The evidence therefore does not show that either Cleopher Handa Matoke, as the registered owner from 1987 or the Respondent who became the registered owner thereafter, knew of the Applicant’s alleged occupation for the period claimed. In the absence of such evidence, the Applicant has not established that his alleged possession was known to the registered owner and continued without action being taken against him. 81. Finally, I turn to the issue of duration and continuity of possession. The Applicant also did not show that his alleged possession continued uninterrupted for twelve years. He testied that the Respondent entered the land in 2022 and cultivated it. He led this suit in March 2024. He therefore needed to show that he had already completed twelve years of adverse possession before the Respondent’s entry in 2022. He did not do so. Apart from general statements that he has been on the land for 30 or 35 years which are themselves inconsistent, there is no evidence of what he was doing on the land year after year. The Applicant brought this claim without proving that twelve years of adverse possession had been completed before then. 82. Counsel for the Applicant submitted that time which has begun to run against a registered owner is not stopped by a change of ownership, relying on Gitu v Ndeete [1984] KLR 776. Additionally, the Court of Appeal has held in Benson Mukuwa Wachira vs The Assumption Sisters of Nairobi Registered Trustees (2016) eKLR, that a sale, transfer or charge of the land does not stop time from running for purposes of adverse possession.However, this principle only applies where the claimant has rst shown that time had already started running in his favour. Time begins to run only when a person has established adverse possession of the land. In this case, the Applicant has not proved that he was ever in adverse possession of the suit property. It follows that time never started running in his favour in the rst place. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 14

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83. Counsel for the Applicant further submitted that the Respondent did not testify, and that the Applicant’s evidence was therefore uncontroverted. This is not supported by the record. The Respondent testied as DW1 on 5th November, 2025 adopted his Replying Adavit and witness statement, produced his documents and was cross-examined at length by counsel for the Applicant. The Applicant’s evidence was therefore contested and it must be considered together with the evidence presented by the Respondent. 84. Having considered all the elements of adverse possession against the evidence on record, I nd that the Applicant has not proved on a balance of probabilities, that he has been in open, exclusive, continuous and uninterrupted possession of LR No. Siaya/Karapul Ramba/666 adverse to the title of the registered owner for a period of twelve years. His claim for adverse possession therefore fails. Whether the Respondent’s title to the suit property has been extinguished 85. Section 17 of the Limitation of Actions Act provides that at the end of the period prescribed by the Act for a person to bring an action to recover land, the title of that person to the land is extinguished. A registered owner’s title is only extinguished where another person has been in adverse possession of the land for the full period of twelve years. In Gabriel Mbui vs Mukindia Maranya (1993) eKLR, the court explained the eect of adverse possession on a registered title as follows: “ 31. It is self-evident from the enactments, that adverse possession extinguishes the title of the dispossessed unregistered owner, while by virtue of adverse possession a registered owner becomes a bare trustee for the stranger in occupation. Consequently, in either case, if the stranger has possession does not transfer title to the stranger. It does not give the intruder any title, but prevents the owner from asserting his title, and forms a basis for applying to have the title registered in his name. That means that by itself twelve years occupation does not make an intruder the owner of the land; the owner can no longer sue the occupier and the owner’s title to land is extinguished (if unregistered) or is held by him as the legal owner but for the occupier as the cestui que trust whose legal ownership ripens only upon registration after a court order in that regard after determination of the claim and any other question on application by any person interested …” 86. Since the Applicant has not proved twelve years of adverse possession, there is no period of limitation that has run against the Respondent. The Respondent’s title has therefore not been extinguished and the Respondent does not hold the suit property in trust for the Applicant. Equally, there is no right acquired or in the process of being acquired by the Applicant under the law of limitation that could amount to an overriding interest under Section 28(h) of the Land Registration Act. 87. The Respondent is the registered proprietor of the suit property, having been registered on 14th April, 2021. Section 24(a) of the Land Registration Act provides as follows: “ 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 privileges belonging or appurtenant thereto.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 15

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88. Further, Section 26(1) of the same Act provides that: “ The certicate 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 certicate, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which the person is proved to be a party; or where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 89. This court nds that no ground under Section 26(1) was pleaded or proved against the Respondent’s title and the claim of adverse possession, which is the only claim before the court has failed. The Respondent’s title to LR No. Siaya/Karapul Ramba/666 therefore remains valid and has not been defeated. Who shall bear the costs of this suit? 90. On costs, Section 27(1) of the Civil Procedure Act provides as follows: “ “ (1) 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.” 91. The import of the foregoing provision is that, although the award of costs remains a matter within the discretion of the court, such discretion is guided by the established principle that a successful party in any suit or litigation should ordinarily be awarded for the costs incurred thereunder. Consequently, a departure from the general rule that costs follow the event must be justied by good and sucient reasons, which ought to be discernible from the record. 92. I see no good reason to depart from that rule in this case. The Respondent, having successfully defended the suit, is entitled to his costs which shall be borne by the Applicant. 93. Consequently, the following orders issue in determination of the Originating Summons dated 15th March, 2024: i. The Applicant has failed to prove that he has acquired LR No. Siaya/Karapul Ramba/666 by adverse possession and the Originating Summons dated 15th March, 2024 is hereby dismissed in its entirety. ii. The prayers for a declaration that the Respondent’s title to LR No. Siaya/Karapul Ramba/666 has been extinguished and for the transfer of the said parcel to the Applicant are declined. iii. The Applicant shall bear the Respondent’s costs of this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 16

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DELIVERED AND DATED THIS 8TH DAY OF OCTOBER 2026 HON. LADY JUSTICE A.E. DENA JUDGE 08/10/2026 Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of: Mr. Abande for the Applicant Mr. Ochanyo for the Respondent Court Assistant: Victor Bwire. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6292/eng@2026-10-08 17

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