https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3631

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC CASE NO. 7 OF 2016** **GRACE NAKHUMICHA HUBESI…………….............. PLAINTIFF** **VERSUS** **MARIAM AMAROBE OSUNDWA................. 1ST DEFENDANT** **SAIDA OGOYA OSUNDWA…………………………2ND DEFENDANT** **JUDGMENT** **Introduction** 1. This suit was instituted by the plaintiff, Grace Nakhumicha Hubesi, by way of a plaint dated 26th January 2016, in which she stated that she was the absolute registered proprietor of **land parcel No. Butsotso/Shikoti/223** (suit property) and that the defendants had invaded the same sometime in the year 2012 and constructed buildings thereon for themselves and their children without her authority. 2. That despite several demands and notices requiring the defendants to vacate the suit property, they had remained on the property and continued trespassing thereon. She maintained that the defendants had no legal or beneficial interest in the suit property and that their continued occupation had hindered her access and development of the property. Consequently, she sought orders for eviction of the defendants from the suit property, a permanent injunction restraining them from trespassing thereon and costs of the suit and interest. 3. In response to the plaint, the defendants filed a joint statement of defence and counterclaim dated 3rd March 2016 in which they denied the plaintiff’s claim to ownership of the suit property. That the plaintiff’s registration was fraudulent and ought to be cancelled. That the suit property originally belonged to their husband and that they, together with their families, had lived and settled on the property for over fifty years. 4. In the counterclaim, the defendants pleaded that the transfer of property parcel **No. Butsotso/Shikoti/223** from the original owner, the late Ismael Osundwa, to Andrew Otinga S/o Olunga, the subsequent transfers to Hussein Hubesi Andama, and thereafter to the plaintiff, were fraudulent and illegal. They particularized fraud against the plaintiff’s husband, Hussein Hubesi Andama, accusing him of unlawfully causing the transfer of the property without the consent of the original owner and misrepresenting himself to the relevant authorities. 5. The defendants therefore sought a declaration that the transfers relating to the suit property were fraudulent and null and void, cancellation of the plaintiff’s title and reinstatement of the name of Ismael Osundwa in the register. In the alternative, they prayed that should the court find the plaintiff’s title valid, then the defendants be declared to have acquired ownership of the suit property by way of adverse possession, having occupied the property for over fifty years. 6. The plaintiff thereafter filed a reply to defence and defence to counterclaim dated 29th June 2016 in which she denied the allegations of fraud levelled against her and maintained that she was the absolute registered proprietor of the suit property. That if there had been any fraudulent dealings concerning the transfer of the suit property from the late Ismael Osundwa, then such a complaint ought to have been pursued by the administrator of the estate of the deceased against Hussein Hubesi Andama, and not against her. She maintained that she lawfully acquired the suit property from Hussein Hubesi Andama and denied any involvement in fraud or illegality. 7. With regard to the plea of adverse possession, the plaintiff contended that the defendants were in effect admitting that they were trespassers on the suit property and put them to strict proof of the ingredients necessary to establish a claim for adverse possession. She therefore prayed for the dismissal of the defence and counterclaim with costs. 8. The suit proceeded to hearing through *viva voce* evidence after compliance with provisions of Order 11 of the Civil Procedure Rules. Both the plaintiff and defendants called two witnesses each in support of their respective cases. **Plaintiff’s evidence** 1. PW1 was Grace Nakhumicha Hubesi, the plaintiff. She adopted her witness statements and testified that she is the registered proprietor of property parcel No. Butsotso/Shikoti/223, producing the title deed, a copy of the register and a certificate of official search in support of her ownership. That her husband, the late Hussein Hubesi Andama, had purchased the property and that she later became registered as proprietor. 2. On cross-examination, PW1 conceded that neither she nor her husband had ever lived on the suit property, stating that they resided in Nairobi and later in Nandi, although she alleged a mud house had been constructed on the property by her husband. She stated that she last visited the suit property in 1995 and was unaware of certain details of the alleged sale transactions. She further acknowledged that members of the defendants’ family, including children of Ismael Osundwa, were in occupation of the suit property. 3. She further testified that her husband paid Kshs. 7,000/- to Ismael’s family as part of the purchase price, which was received by Ismael and his younger wife as the first instalment. She stated that upon her husband returning to pay the balance, he was informed that Ismael had already sold the property to Andrew Otinga, whereupon her husband proceeded to complete payment to Andrew. She further stated that the agreement for sale was between her husband and Andrew Otinga, and that after payment, the occupiers were requested to vacate and later fenced off the property. 4. PW2 was Nelson Odhiambo, the Land Registrar Kakamega County. He produced a certified copy of the green card/register for the suit property and alleged that the original register was missing from the registry records. That the suit property was first registered in the name of Ismael Osundwa in 1969, transferred to Andrea Otinga in 1971, then to Hussein Hubesi Kudama in 1978, and finally to the plaintiff in 2012, when a title deed was issued to her. That marked the close of the plaintiff’s case. **Defence evidence** 1. DW1, Mustapha Aura Ismael, testified as a son of the late Ismael Osundwa and representative of the estate of the 2nd defendant who had passed on. He testified that the plaintiff and her husband had never lived on the suit property and denied existence of any mud house on the property. That his father had four wives, all of whom live on the suit property with their children. He produced correspondence addressed to the Lands Office seeking transfer documents. On cross-examination, DW1 acknowledged that the plaintiff held a title deed over the suit property. 2. DW2, Mariam Amakobe Osundwa, also adopted her witness statement filed on 4th March 2016 and testified that she had lived on the suit property since the 1950s together with her children and grandchildren. She denied knowledge of any sale of the property by her husband or involvement of the plaintiff in its ownership. She further stated that their family has occupied the property continuously without permission from the plaintiff. That marked the close of the defence case. 3. The court directed that parties file submissions. On record are submissions dated 29th July 2025, filed by the plaintiff, and submissions dated 11th November 2025, filed by the defendants; both of which have been duly considered by this court. **Plaintiff’s submissions.** 1. The plaintiff submitted that she was the lawful and absolute registered proprietor of land parcel **No. Butsotso/Shikoti/223** and that her title had been duly supported by the documentary evidence produced before the court. It was submitted that the green card showed that the property was first registered in the name of Ismael Osundwa, thereafter transferred to Andrea Otinga Olunga, then to Hussein Hubesi Andama, and finally to the plaintiff, Grace Nakhumicha Hubesi. The plaintiff argued that by virtue of **Section 24 and 26 of the Property Registration Act**, her certificate of title was *prima* *facie* evidence of ownership and could only be impeached upon proof of fraud, misrepresentation or illegality to the required standard. 2. On the defendants’ allegation of fraud, the plaintiff submitted that the burden lay strictly upon the defendants to plead and prove the alleged fraud. It was argued that although the defendants alleged that the transfers from Ismael Osundwa to Andrea Otinga, and thereafter to Hussein Hubesi Andama and the plaintiff, were fraudulent, they had not adduced cogent evidence to prove the particulars pleaded. The plaintiff contended that the defendants had not shown that Ismael Osundwa was alive when the property was allegedly transferred, that the transfer documents were forged, or that the plaintiff personally participated in any fraudulent transaction. Counsel therefore urged the court to find that the allegations of fraud had not been proved. 3. The plaintiff further submitted that the defendants’ claim for adverse possession was untenable, since the defendants had pleaded adverse possession through a counterclaim and not by way of Originating Summons as contemplated under **Order 37 Rule 7 of the Civil Procedure Rules**. In any event, the plaintiff submitted that the defendants had not established the essential ingredients of adverse possession since their occupation was founded on their relationship with the original owner, Ismael Osundwa, and not on possession hostile to the registered proprietor. Reliance was placed on ***Gachira v Gachira*** and ***Kamau v Mungai & Another*** in support of the proposition that a party claiming adverse possession must strictly prove open, exclusive, continuous and adverse occupation for the statutory period. 4. The plaintiff also submitted that the defendants had admitted being in occupation of the suit property without her permission and that such occupation amounted to trespass. She urged the court to dismiss the defence and counterclaim with costs and to grant the eviction and permanent injunction orders sought in the plaint. **Defendants’ submissions.** 1. The defendants submitted that the plaintiff’s title to land parcel **No. Butsotso/Shikoti/223** was null and void, having been procured through fraudulent and irregular dealings originating from the estate of Ismael Osundwa. That although the plaintiff claimed ownership through a chain of transfers from Ismael Osundwa to Andrea Otinga, then to Hussein Hubesi Andama and finally to herself, no sale agreement was produced to show that Ismael Osundwa lawfully sold the property to Andrea Otinga. They further submitted that the plaintiff had not produced sufficient evidence of the alleged purchase by Hussein Hubesi Andama and that the absence of the original register and original transfer documents cast doubt on the propriety of the transactions. 2. The defendants contended that the circumstances surrounding the alleged transfer were suspicious because the family of Ismael Osundwa had remained in occupation of the suit property throughout. It was argued that Ismael Osundwa could not have secretly sold and transferred the property without informing his polygamous family, who were residing on it. Further, that the Land Registrar was unable to produce the original green card and that the certified copy relied upon by the plaintiff was insufficient to dispel the allegations of fraud and irregularity. Reliance was placed on ***Macfoy v United Africa Co.*** ***Ltd*** for the proposition that a void transaction cannot confer a valid title. 3. In the alternative, the defendants submitted that should the court find the plaintiff’s title to be valid, then they had nevertheless acquired title to the suit property by way of adverse possession. They argued that they and their families had occupied the property openly, peacefully, continuously and without interruption from the 1960s. It was further submitted that their occupation had been without the plaintiff’s permission, and that the plaintiff herself admitted that neither she nor her husband had ever lived on the suit property and that she last visited the property in 1995. 4. The defendants maintained that their possession was actual, open and notorious, as they had established homes on the property and lived there with their children and other family members for over fifty years. They submitted that the plaintiff had taken no effective steps to recover the property within the statutory period and that her title had consequently been extinguished by operation of law. Reliance was placed on ***Mtana Lewa v Kahindi Ngala Mwagandi****,* ***Gichomo & Another v Kiiru,*** *and* ***Munyaka Kuna Company Limited v Bernardo Vicozo De Masi*** on the elements of adverse possession. They prayed for the court to dismiss the plaintiff’s suit and allow the counterclaim with costs. **Analysis and determination** 1. The court has carefully considered the pleadings, evidence and rival submissions presented in this case. The issues that arise for determination are; 2. **Whether the plaintiff acquired the suit property by fraud;** 3. **Whether the defendants have acquired the suit property by way of adverse possession** 4. **Whether the plaintiff’s claim should be allowed** 5. **Whether the defence counterclaim whould be allowed.** 6. It is not disputed that the plaintiff is the registered proprietor of the suit property, having obtained registration on 18th July 2012 being a transfer from her husband Hussein Hubessi Andama by way of gift. 7. Before the plaintiff’s registration, the suit property had been registered on 22nd January 1969 as a first registration in the name of Ismael Osundwa the defendants’ husband. On 15th July 1971, the same was transferred to one Andrea Otinga S/O Olunga at a consideration of Kshs. 600/=. Thereafter the property was transferred to Hussein Hubesi Andama on 21st April 1978 at a consideration of Kshs. 1, 700/=. 8. In alleging that the plaintiff’s acquisition was predicated on fraud, the defendants stated that Hubesi Andama fraudulently and by misrepresentation caused the transfer of the suit property to one Andrew Otinga then to himself, and later to the plaintiff, without the owner’s consent. The defendants referred to Hubesi Andama as the mastermind of the fraud. 9. On the issue of fraud, the Land Registrar attended court and testified that the parcel file had transfer instrument and application for consent duly executed by Ismael Osundwa transferring the suit property to Andrea Otinga. He also confirmed that the parcel file had a consent from the Land Control Board in regard to the said transaction. There was no evidence that Husein Hubesi was involved in the transaction between Ismael and Andrew and therefore the defendants’ assertions of fraud in that regard have not been proved. 10. On whether adverse possession was proved, the Limitation of Actions Act is the law upon which adverse possession claim is predicated. Section 7 of the Limitation of Actions Act bars a person from bringing a suit for claim of land after twelve years, and provides as follows; **“An action may not be brought by any person to recover land after the end of 12 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.”** Section 13 provides as follows; 1. “**A right of action to recover land does not accrue unless the property is in possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, whereunder Section 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 ceases 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 purposes 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 property.”** Section 17 states as follows; **“Subject to Section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.”** Section 38 (1) and (2) provides as follows; **“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37 of the Act, or property 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.”** 1. Therefore, where a trespasser dispossesses a land owner of their land openly, without secrecy, force, and without the owner’s permission, and the owner fails to assert their rights for 12 years, the owner’s rights in the land becomes extinguished under the doctrine of adverse possession. In such circumstances therefore, an adverse possessor may apply to this court to have the land they have uninterruptedly occupied, registered in their name. 2. The rationale for the doctrine of adverse possession was stated in the case of **Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR** where the Court of Appeal cited with approval the case of **Adnam v Earl of Sandwich (1877) 2 QB 485** where it was held as follows; **“The legitimate object of all statutes of limitation is in no doubt to quiet long continued possession, but they all rest upon the broad and intelligible principles that persons, who have at some anterior time been rightfully entitled to land or other property or money, have, by default and neglect on their part to assert their rights, slept upon them for a long time as to render it inequitable that they should be entitled to disturb a lengthened enjoyment or immunity to which they have in some sense been tacit parties.”** 1. In **Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR,**the court described adverse possession in the following terms; **“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 Possession 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 adverse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms;** **“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.”** 1. In the instant suit, the suit property was registered in the name of Ismael Osundwa in 1969, then to Andrea Otinga in 1971 and then to the plaintiff’s husband Hussein Hubesi Kadama in 1978. All this time, the family of Osundwa was in continuous and uninterrupted occupation. There was no attempt by the new registered owners to assert their right of ownership. From 1978 the 12-year period lapsed in the year 2000. That is the year the right of Husein Hubesi’s right as proprietor was extinguished. When he was transferring the property to the plaintiff as a gift in 2012, he had no rights over the suit property. 2. The plaintiff confirmed that herself and her husband have never used the suit property and that the family of Osundwa have never stopped residing on the suit property. It is therefore my finding that the transfer of the suit property by Husein Hubesi to the plaintiff did not confer any rights to her as the transferor’s rights had been extinguished by effluxion of time. The defendants who were trespassers had acquired the suit property by way of adverse possession. 3. In the premises, I find and hold that the defendants have proved having acquired the suit property through adverse possession, the registration of the suit property in the plaintiff’s name did not confer any rights on her and the plaintiff’s claim is therefore dismissed. 4. I therefore enter judgment for the defendants as against the plaintiff as follows; 5. **The defendants have acquired parcel No. Butsotso/Shikoti/223 (suit property) by adverse possession. The plaintiff shall execute transfer documents in favour of the defendants and cause the transfer of parcel No. Butsotso/Shikoti/223 to the defendants, and in default, the Deputy Registrar of this court to do so.** 6. **The costs of the suit are awarded to the defendants.** 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 3RD DAY OF JUNE, 2026.** 1. **NYUKURI** **JUDGE** **In the presence of** Mr. Wandallah holding brief for Mr. Mukabwa for the plaintiff Ms Rautto for the defendant Court Assistant: Delphine