https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5121

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC (OS) CASE NO. 6 OF 2021** **ALI OMAR HAMIS** **ERICK MULAMBA** **HASSAN SWALEH** **RAZIAH AMBARI** **MOHAMMED ALA** **AMANI MASHA** **GEORGE KATANA** **PETER WALE** **SAID NGUTE** **AMINA IBRAHIM HASSAN** **MBULULU NZILA** **AGNES SIKWA** **NAOMI NYAMOKI** **EUNICE CHAHALA** **KATANA NZOMBO** **CHARLES MWILI** **CHRISTINE MUTEMI** **ADELA KATANA** **BANDARI FESTUS** **DOREEN MWENDWA…………………….……..PLAINTIFFS/APPLICANTS** * **VERSUS -** **HASSAN MOHAMEDSALEH BAGHA** **EDWINS OKEYO OTIENO** **OMAR MOHIDIN MOHAMED** **ALWIYA OMAR SAGAF** **AISHA SULTAN MBARAK TIMAMY** **FATMA OMAR MOHIDIN HATIMY** **UMI OMAR MOHIDIN HATIMY** **ZULFIKIR YUSUF AHMED** **ABDULRAHIM YUSUF AHMED** **ABDULKARIM YUSUF AHMED** **KHADIJA ABUBAKAR NOORDEAN EL-HATIMY** **ABDULRAUF RAMZAN MOHAMED HATIMY** **DUNCAN JACOB MAGHANGA** **STEPHEN MUNYAO** **LANDS REGISTRAR MOMBASA…….…DEFENDANTS/RESPONDENTS** **JUDGMENT** 1. **Preliminaries** 2. The Judgement of this Honourable Court pertains to the civil suit instituted by by *Ali Omar Hamis, Erick Mulamba, Hassan Swaleh, Raziah Ambari, Mohammed Ala, Amani Masha, George Katana, Peter Wale, Said Ngute, Amina Ibrahim Hassan, Mbululu Nzila, Agnes Sikwa, Naomi Nyamoki, Eunice Chahala, Katana Nzombo, Charles Mwili, Christine Mutemi, Adela Katana, Bandari Festus* and *Doreen Mwendwa* (the Plaintiffs/Applicants herein) who instituted this suit against *Hassan Mohamed Saleh Bagha, Edwins Okeyo Otieno, Omar Mohidin Mohamed, Alwiya Omar Sagaf, Aisha Sultan Mbarak Timamy, Fatma Omar Mohidin Hatimy, Umi Omar Mohidin Hatimy, Zulfikir Yusuf Ahmed, Abdulrahim Yusuf Ahmed, Abdulkarim Yusuf Ahmed, Khadija Abubakar Noordean El-Hatimy, Abdulrauf Ramzan Mohamed Hatimy, Duncan Jacob Maghanga, Stephen Munyao* and *the Lands Registrar Mombasa* (the Defendants/Respondents herein) by way of Originating Summons dated 18th January, 2021 and amended on 2nd March, 2022 and filed on 3rd March, 2022. The Summons was premised under the provision of Sections 7, 13, 17, 37 and 38 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya, Order 1 Rules 11–14, Order 5 Rule 17, and Order 37 Rules 7 to 19 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. 3. Upon filing of the Originating Summons, the Defendants/Respondents entered appearance and filed their respective responses as follows:- 4. Replying Affidavits by the 7th and 12th Respondents sworn on 2nd June, 2021. 5. The 15th Respondent’s response dated 29th June, 2022, witness statements, and documentary evidence. 6. None of the other Respondents filed any replies. 7. The Applicants thereafter filed further affidavits and responses to the Defendants’ pleadings. The matter proceeded to full hearing with both parties calling witnesses, producing exhibits, and subsequently closing their cases, paving way for this Court to render its judgment. 8. It is instructive to note that during the pendency of this proceedings, the parties requested that there be a Site Visit (***“Locus in Quo”***) conducted by the Honourable Court. Indeed, on 13th March, 2026 the Honourable Court conducted a site visit and a report was prepared and shared by the parties for their further input. For ease of reference the said report had been re – produced verbatim as part of this Judgement hereof. 9. **Court directions before the hearing** 10. On 12th July, 2022 directions were taken pursuant to the provision of Order 37 Rules 16, 17, 18 and 19 of the Civil Procedure Rules, 2010 whereby the Originating Summon converted to a Plaint, Replying Affidavit to a Defence; Applicants to Plaintiffs; Respondents to Defendants; Annextures to Exhibits. Further, that the matter proceeds by way of adducing ***“Viva Voce”*** evidence. 11. On 22nd November, 2022, after confirming that the Plaintiffs/Applicants had duly complied with the requirements of Order 11 of the Civil Procedure Rules, 2010, the Honourable Court set the matter down for hearing on 20th March, 2023. The Plaintiffs/Applicants thereafter proceeded to call their witnesses, beginning with PW - 1 and PW - 2, and formally closed their case on the same date. 12. Subsequently, the Defendants/Respondents were granted leave to present their evidence. The 7th and 12th Respondents, through their duly appointed attorney, testified and produced documentary exhibits, while the 4th Defendant was represented by her attorney who also tendered evidence and documents. The Defendants’ case was progressively heard and closed on 20th November, 2024, upon adoption of the witness statements and documentary bundles of the 11th and 15th Defendants by consent of all parties. 13. At the close of both the Plaintiffs’ and Defendants’ cases, the Court directed that the Plaintiffs file and serve their written submissions within 21 days, followed by the Defendants within a similar period of 21 days thereafter. The matter was then fixed for mention on 8th February, 2025 to confirm compliance and pave way for judgment. 14. **The case by the Plaintiffs/Applicants’** 15. The Plaintiffs/Applicants claimed that land adverse possession against the Defendants/ Respondents on the following orders: - 16. ***An ORDER declaring that the Applicants have acquired that whole parcels of land known as 11264/II/MN, 11258/II/MN, 11256/II/MN, 11255/II/MN, 11254/II/MN, 11253/II/MN, 11252/II/MN, 11252/II/MN, 11250/II/MN, 11249/II/MN, 11247/II/MN, 11248/II/MN and 11246/II/MN and any other sub-division of plot number 310/II/MN by adverse possession.*** 17. ***An ORDER directing the bands Registrar Mombasa 15th Respondent to rectify his record/register by cancelling all sub-divisions registered under plot number 310/II/MN including plots 11264/II/MN, 11258/II/MN, 11256/II/MN, 11255/II/MN, 11254/II/MN, 11253/II/MN, 11252/II/MN, 11252/II/MN, 11250/II/MN, 11249/II/MN, 11247/II/MN, 11248/II/MN and 11246/II/MN.*** 18. ***An ORDER directing the Chief Lands Registrar Kwale 15th Respondent to rectify his record by deleting the name of the 1st Respondent and replacing it with the names of the Applicants as the registered proprietors of the whole parcel of land known as plot number 310/II/MN.*** 19. ***A PERMANENT INJUNCTION against the Respondents, their officials, administrators, assigns, executors or anybody whatsoever restraining them from evicting or interfering in any manner whatsoever with the Applicants’ peaceful possession and enjoyment of the whole of the said parcels of land known as plot number 310/IIMN.*** 20. ***Such other ORDERS as may be deemed appropriate under the circumstances of the case to meet the ends of justice.*** 21. The Original Summons was based on the following grounds on the face of it and those of the 11 Paragraphed supporting affidavit sworn by ALI OMAR HAMIS, the 1st Plaintiff/ Applicant sworn on the same day with the Originating summons where the Affiant averred that:- 22. The 1st Applicant herein, and had knowledge of the matters deposed to with the necessary authority from the other Applicants and was therefore competent to swear the affidavit. The Affiant attached a copy of the letter of authority sworn by the other Applicants in this matter marked as “AOH‑1”.. 23. The facts contained therein were, unless otherwise stated or indicated by the context, within the Affiant’s own knowledge and to the best of the Affiant’s belief, true and correct. 24. Legal submissions in the affidavit were made on the advice of Counsel on record, M/s Said Mgupu & Company Advocates, which advice the Affiant embraced. 25. The impugned plots of land (the suit properties), the subject matter of the Originating Summons Application, were initially Plot Number 310/II/MN whose last registered owner was the 1st Respondent. The Affiant attached a copy of the title deed and a copy of the letter to the Land Registry dated 11th January, 2021 marked as “AOH‑2”. 26. The Applicants had all along been residing on the suit properties since the year 2000 when they invaded the plot while it was still vacant bush land. 27. Despite of the activities concerning the title that were ongoing before the Lands Registry, that is, the sub‑division of the mother plot 310/II/MN, the Applicants had never been approached by any of the Respondents claiming ownership of the suit properties, nor had any received a notice threatening eviction. The Affiant attached copies of recent searches indicating the current registered owner of the alleged sub ‑ divisions marked as “AOH ‑ 3”. 28. The said sub‑divisions culminating into the suit properties were in fact suspect, as the Applicants had obtained a recent copy of the title from the Lands Registry which still indicated that the 1st Respondent was the proprietor of the mother plot 310/II/MN. 29. The Applicants’ claim to the suit properties had by then ripened by way of land adverse possession since they had been in the suit properties from the year 2000, exercising ownership rights by erecting and maintaining permanent residential houses therein, maintaining roads within the suit properties and public access ways, and any subsequent registration and/or sub‑division did not dispossess them of the suit properties. The Affiant attached copies of photographs of the houses built on Plot Number 310/II/MN and a certificate of photographs marked as “AOH‑3”. 30. The Applicants had been in continuous, open, and uninterrupted possession of the suit properties to date. 31. It was in the interests of the administration of justice that the order be granted. 32. Wherefore, the Affiant prayed that the Application be allowed as prayed. 33. The Plaintiffs called PW - 1 on 20th March, 2023 at 2.15 pm wherein the witness told the court that: - * 1. **Examination in Chief of PW – 1 by Mr. Mgupu Advocate.** 34. PW - 1 testified under oath and in Swahili language. He was called ALI OMAR HAMISI, 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 was born on 11th April, 1985 and that he was in court in respect of Plot No. 310/II/MN. PW - 1 stated that he relied on his supporting affidavit, which he converted into a witness statement and adopted as his evidence. He produced the documents attached to the supporting affidavit, being six exhibits marked as Plaintiff Exhibit Numbers 1, 2 (a)–(c), 3 (a)–(m), 4, and 5 (a)–(e). 35. PW - 1 told the court that he was born at Bakarani Kasauni within the County of Mombasa, where he lived until the age of fifteen. He averred that he later moved to Bombo within Kiembeni, Mombasa County, together with his family, having been relocated there by his father. 36. PW - 1 testified that the family had lived at Bakarani as tenants and used to pay rent. He stated that his father later informed them that he had identified and acquired a plot at Bombo, where he had constructed a mud ‑ walled house. PW- 1 told the court that his father explained that they had taken over Plot No. 310/II/MN together with others, each of whom had received their respective portions. 37. PW - 1 averred that, in accordance with tradition, his father apportioned him a portion measuring 50 feet by 80 feet, upon which he constructed a mud house and kept poultry. He testified that after completing his schooling between the years 2000 and 2016, he built a better house. He stated that over time, more people settled on the land, roads were constructed, and the community grew without interruption. 38. PW - 1 told the court that he progressively improved his house, initially from a makuti‑thatched structure, as he secured employment first as a teacher and later with the County Government. He stated that his father passed away in the year 2016, but he himself had remained on the land for over 20 years. 39. PW - 1 testified that in the year 2021 he encountered an elder who claimed ownership of the land. He averred that the elder, accompanied by advocates, coerced him into signing a sale agreement under threat of eviction and demolition of his house. PW - 1 stated that he signed the agreement out of fear of losing his land. 40. PW - 1 told the court that he later consulted the committee, who advised him to engage an advocate. The advocate blamed him for signing the agreement without first conducting an official search. PW - 1 testified that upon conducting the search, he discovered that Plot No. 310/II/MN had been sub - divided into several plots, but the individuals who coerced him into signing the agreement were not the registered owners and held no title deeds. 41. PW - 1 averred that he had lived on the land continuously, openly, and without interruption. He stated that his father was buried there in accordance with Islamic rites, and his sister was married from the same land. He told the court that he had nowhere else to go and therefore prayed to be granted title to the land by way of adverse possession, noting that his neighbours had already been issued with title deeds. 42. **Cross examination of PW - 1 by M/s. Aliya Advocate.** 43. PW - 1 told the court that his father took them to Bombo in the year 2002. PW - 1 testified that he started building his house in the year 2006 and that construction was still ongoing, with the house not yet completed. 44. PW - 1 stated that he never reported to the police about being forced or compelled to sign the agreement, but instead informed his advocate. PW - 1 averred that when shown his statement and supporting affidavit dated 2nd March, 2022, it did not contain any allegation of him being forced or compelled to sign the sale agreement. 45. PW - 1 told the court that under the said agreement, he was to pay a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-) for the land. 46. **Cross Examination of PW - 1 by M/s. Kiti Advocate.** 47. PW - 1 told the Court that from the year 2000 up to the present, he and his family had lived on the land. PW - 1 testified that they never bothered to establish whether there was a legal owner of the property. 48. PW - 1 stated that they knew the land was Plot No. 310/II/MN, but they never took steps to ascertain who the registered owner was. 49. **Re - Examination of PW - 1 by Mr. Mgupu Advocate.** 50. PW - 1 stated that the sale agreement to buy the land was between the lady and himself. The lady neither had a title deed nor Power of Attorney. 51. The Plaintiffs called PW - 2 who told the court that: * 1. **Examination in Chief of PW - 2 by Mr. Mgupu Advocate.** 52. PW - 2 was sworn and testified in Swahili. She was called RAZIAH MAKHUNGU AMBARI, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing. She testified that she lived in Bombo and worked for Kenya Power and Lighting Company (KPLC). She told the court that she had been brought up elsewhere but later moved to Bombo. PW - 2 averred that after completing her secondary school education, she came to live with her brother in the year 2006 while seeking employment. She testified that she was initially employed at Mtopanga, selling clothes. 53. PW - 2 told the court that she was approached by a lady known as Mama Ngecha who informed her that land was being apportioned to people, and upon being shown a portion, one was required to build their own structures. PW - 2 stated that at the time she was twenty years old. She constructed a mud house with a makuti roof, which she later refurbished by fixing electricity and replacing the roof with iron sheets. PW - 2 testified that many families lived on the land, and she did not pay rent to anyone. She stated that nobody had ever claimed ownership of Plot No. 310/II/MN until recently. PW - 2 told the court that she was now married and lived there with her family, undertaking all her activities on the land, including ceremonies, funerals, and burials. 54. PW - 2 averred that she was in court because she and others had received information that someone was claiming ownership of Plot No. 310. She stated that they engaged an advocate, who conducted an official search and discovered that in 2011 the land had been sub - divided. PW - 2 testified that she and her family had been on the land for over twelve years, openly and without interruption, and therefore prayed to be granted ownership by way of adverse possession. She further requested the Court to conduct a site visit to ascertain their occupation and developments on the land. 55. **Cross examination of PW - 2 by M/s. Aliya Advocate.** 56. PW - 2 told the court that it was the village elders who had been apportioning the land. PW - 2 testified that the elders were of advanced age, and she believed that they were the rightful owners of the land. PW - 2 stated that they would pay the elders approximately a sum of Kenya Shillings Five Hundred (Kshs. 500/-) to Kenya Shillings One Thousand Five Hundred (Kshs. 1,500/-) in order to be shown a portion of the land. PW - 2 averred that she was aware that the allocation of land was ordinarily the role of Government, but she was not informed of the specific details of her portion, such as the deed plan or title number. 57. PW - 2 told the court that she had been on the land since the year 2006. PW - 2 testified that there was a meeting convened after an official search was conducted for Plot No. 310, during which they were informed that one person was claiming a portion of the land. 58. **Cross Examination PW - 2 by M/s. Kiti Advocate.** 59. PW - 2 confirmed that she only knew of the village elders and a few people who take care of the welfare. She was not one of them. She knew they were many but not the exact number of people. 60. **Re – Examination in Chief of PW - 2 by Mr. Mgupu Advocate.** 61. PW - 2 reiterated that she worked with Kenya Power and Lighting Company (KPLC) and was not an expert in land matters. PW - 2 testified that upon being shown a portion of land, she never got to know whether it had a specific number or deed plan. PW - 2 stated that what she knew was that her portion was derived from Plot No. 310/II/MN. PW - 2 averred that she only came to learn of the subdivision of the land from her advocate. PW - 2 told the court that she was never issued with any document in respect of her portion, nor was there any written agreement. PW - 2 testified that it was Mama Ngecha who directed them to the land and apportioned the portions. 62. On 20th March, 2023 the Plaintiffs marked their case closed through their Counsel on record Mr. Mgupu Advocate. 63. **The case by the 4th, 7th, 11th and 12th Defendants** 64. The Defendants’ responded to the Originating summons through a 15 Paragraphed Replying Affidavit sworn by RIWAYA MOHAMED RAMAZAN on 2nd June, 2021 where the Affiant averred as follows that: - 65. The Affiant was the duly appointed Power of Attorney of the 7th and 12th Respondents herein and was well‑versed with the matters in question, therefore competent to swear the affidavit in reply to the Originating Summons filed by the Plaintiffs/Applicants on the 18th January, 2021. 66. The 7th and 12th Respondents were the registered owners of the parcels of land known as C.R 47977 and C.R 47965 (the “Properties”). Annexed and marked as “UA ‑ 1” was a copy of the Certificate of Title confirming that the parcel of land known as C.R 47977 belonged to the 7th Respondent, whereas marked as “UA‑2” was a copy of the Certificate of Title confirming that the parcel of land known as C.R 47965 belonged to the 12th Respondent. 67. The 7th and 12th Respondents had purchased the Properties from Hassan Mohamed Saleh Bagha and Hussein Shariff Omar. Annexed and marked as “UA ‑ 3” was the transfer document confirming the transfer of C.R 47977 to the 7th Respondent, whereas annexed and marked as “UA‑4” was the transfer document confirming the transfer of C.R 47965 to the 12th Respondent. 68. The registration of the Properties in favour of the 7th and 12th Respondents was completed on 16th March, 2011, whereupon they took vacant possession of the Properties. 69. The 7th and 12th Respondents had been regularly visiting the Properties to ensure they were well maintained and had been paying the land rates at the required times. Annexed and marked as “UA ‑ 5” were copies of the land rates receipts in respect of the Properties. 70. The 7th and 12th Respondents vehemently denied the contents of Paragraphs 3, 4 and 5 of the Applicants’ supporting affidavit and categorically stated that the Plaintiffs/Applicants invaded and trespassed on the suit Properties on or around October, 2020. 71. They had therefore barely been there for a few months, let alone the period of 12 years as claimed. The 7th and 12th Respondents had at all relevant times been in occupation and possession of the Properties. 72. It was only recently, on or around October, 2020, when the 12th Respondent’s father, one Ramzan Mohamed, was informed by an acquaintance that some strangers had invaded the Properties and were illegally carrying out construction activities without the consent of the registered owners. 73. The 7th and 12th Respondents denied the contents of Paragraph 6 of the Applicants’ supporting affidavit and stated that upon receiving information of strangers commencing construction on their Properties around October, 2020, they immediately sent Ramzan Mohamed to notify the Applicants to vacate the Properties on the basis that they had illegally trespassed. 74. In further response to paragraph 6, and as advised by the 7th and 12th Respondents’ advocate on record, the Applicants were claiming adverse possession of the property yet had not met the requirements of establishing such a claim, including but not limited to possession being without permission and being notorious. 75. The 7th and 12th Respondents further stated that it was unconscionable that illegal squatters could invade private property and later falsely allege to have stayed thereon for more than 12 years in order to claim it by adverse possession. They termed this outright theft which the law should not condone. 76. None of the orders prayed for ought to be granted as the Plaintiffs/Applicants had barely resided on the suit property and, in fact, from October, 2020 were illegally trespassing upon and erecting structures on the Properties, thereby prejudicing and interfering with the 7th and 12th Respondents’ fundamental rights to exclusively enjoy their Properties. 77. The Affiant stated that the application was frivolous, vexatious, and an abuse of the court process. The Applicants were attempting to use the judicial process to illegally and improperly acquire land from innocent bona fide owners. 78. To allow the instant application would set a bad precedent and open floodgate to unscrupulous persons who would run to court to seek similar declarations over land parcels they were not entitled to, leaving bona fide landowners at the mercy of such persons, with far‑reaching implications on the sanctity of titles. 79. The 7th and 12th Respondents swore the affidavit in opposition to the Originating Summons filed by the Plaintiffs/Applicants and prayed that the suit be dismissed with costs. 80. On 20th March, 2023 the Defendants called their 1st witness DW - 1 who told the court that: - * 1. **Examination in Chief of DW – 1 by M/s. Aliya Advocate.** 81. DW - 1 was sworn and testified in English language. She was called RIWAYA RAMZAN MOHAMED, 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. She testified having been living at Sakuya Mosque. She stated that the 7th Respondent, Umi Omar Mohidin Hatimu, was her daughter‑in‑law, and the 12th Respondent, Mr. Abdulrauf Ramzan Mohamed Hatimu, was her son. DW - 1 told the court that she converted her replying affidavit into a witness statement and adopted it as her evidence. 82. DW - 1 testified that the 7th and 12th Respondents had purchased land from Mr. Hassan Mohamed Saleh Bagha (the 1st Respondent) and Mr. Hussein Shariff Omar, who were joint owners, at a consideration of approximately sum of Kenya Shillings Six Hundred Thousand (Kshs. 600,000/-). DW - 1 stated that the parcels acquired were Plots No. CR 47977 and CR 47965. After purchase, the plots were transferred to the Respondents and title deeds were issued in their names. DW - 1 produced and admitted annexures as Defendants’ Exhibits 1 to 7, namely: * Copy of Title No. CR 47977. * Copy of Title No. CR 47965. * Copy of Transfer for Plot 47977. * Copy of Transfer for Plot 47965. * County Government receipts. * Sale Agreement dated 14th November, 2020 between M/s. Riwaya Ramzan Mohamed and Ali Hamisi. * Copy of the Power of Attorney. 1. The Court was shown the original Power of Attorney. The two title deeds were to be produced at a later stage and were marked as Defendant “MFI 1 & 2”. 2. DW - 1 testified that upon purchasing the land and receiving title, they went to the property and chose a portion where there was a house. The purchase was made in the year 2011, and they had planned to construct a perimeter wall. DW - 1 stated that they had a caretaker on the property until year 2017. She explained that they left the land under the caretaker’s watch, but in the year 2020 they learned that a person had encroached and erected structures. DW - 1 told the court that during this period, Mzee and a tuktuk driver were attacked and hospitalized. The matter was reported to the police. 3. DW - 1 testified that the police visited the site, and Mr. Ali approached them, urging that his structures not be demolished. They offered to sell the land to him at a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-), and a sale agreement was documented before an advocate. DW - 1 stated that Mr. Ali signed the agreement freely and was given a copy, but thereafter avoided them by giving excuses of being at the mosque. 4. DW - 1 averred that their advocate advised demolition of the structures, but they declined, describing themselves as peaceful people. Instead, they were sued over the matter. DW - 1 testified that they had been paying rates for the two plots. She stated that the caretaker was manipulated, given money, and disappeared, after which their house was broken into. DW - 1 told the court that they never visited the property again after Mzee was beaten by over 40 people. She emphasized that they owned the land and held valid title deeds, having first learned of the encroachment in the year 2011. DW - 1 concluded by stating that even the police feared being beaten up when dealing with the matter. 5. **Cross Examination of DW - 1 by Mr. Mgupu Advocate.** 6. DW - 1 testified that she was using the General Power of Attorney to testify in court. She stated that it was dated 9th February, 2021 and registered on 8th March, 2021. DW - 1 told the court that she did not know when the Power of Attorney was filed, noting that the case had been filed on 19th January, 2021, before the Power of Attorney was registered. 7. DW - 1 testified that she had produced a Sale Agreement dated 14th November, 2020, which was executed before the registration of the Power of Attorney. She stated that she had another Power of Attorney which had not been produced in court. DW - 1 averred that the 7th Respondent was her daughter‑in‑law and the 12th Respondent was her son, and that they had donated the Power of Attorney to her as they were out of the country. 8. DW - 1 told the court that according to the Power of Attorney, both the 7th and 12th Respondents were citizens of the United Kingdom. She stated that she was not aware of the relevant provisions of the Constitution regarding this. DW - 1 testified that she could not remember when the two transfers were executed. DW - 1 stated that she had been paying land rates up to 2nd March, 2021, and emphasized that they used to pay rates regularly, not just after the civil case was filed in court. 9. DW - 1 told the court that from the transfer documents, the consideration was a sum of Kenya Shillings Six Hundred Thousand (Kshs. 600,000/-) for each plot. DW - 1 testified that they had intended to sell the property at a sum of Kenya Shillings Two Million (Kshs. 2,000,000/-) but offered it at a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-). She stated that she could sell the property at any price as it was their property. DW - 1 averred that according to the photographs on the transfer documents, they appeared to be of the same person. DW - 1 told the court that she had no idea how long the 7th and 12th Respondents had been away. She stated that it was she and Mzee who had been visiting the plot, including in the year 2020. 10. DW - 1 testified that she visited the land as a parent and recalled visiting it in a particular year. She stated that they had a caretaker, Mr. Omar, but had no proof of payment as his employer. DW - 1 told the court that she did not need a Power of Attorney to act. She stated that she did not have an OB number of the complaint lodged by Mzee regarding the assault. DW - 1 testified that she believed the assault had been arranged, and alleged that Mr. Ali was one of those who organized the attack. DW - 1 stated that she had no proof of any notice to vacate the premises or suit property. 11. **Cross examination of DW - 1 by M/s. Kiti Advocate.** 12. DW - 1 testified that she went to the property in the year 2011. DW - 1 told the court that at the time, the property was vacant except for a three‑bedroom house where a lady resided. DW - 1 stated that the lady was poor and lived there under difficult circumstances. 13. DW - 1 testified that she believed Omar acted as a caretaker and used to live there. DW - 1 averred that Omar was performing caretaker duties for many people. DW - 1 told the court that from the years 2011 to 2020 there was a caretaker on the property. 14. DW - 1 testified that it was only in year 2020 when they discovered that Mr. Ali had started building structures on the land. 15. **Re - Examination of DW - 1 by M/s. Aliya Advocate.** 16. The witness reiterated that there had been a caretaker on the property from the years 2011 to 2017, after which the caretaker left. DW - 1 told the court that the caretaker had been paid by many people for his services. DW - 1 stated that it was in the year 2020 when she discovered that Mr. Ali had started building on the property and continued with construction. 17. DW - 1 testified that Mr. Ali had agreed to purchase the property for a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-), reduced from the initial offer of a sum of Kenya Shillings Two Million (Kshs. 2,000,000/-), and that he had freely agreed to this arrangement. DW - 1 averred that as a parent she did not require permission to visit the property of her children, and that she could undertake any activities there. DW1 told the court that she had been paying the land rates, and the municipality had issued receipts for the payments. DW - 1 testified that her children were dual citizens. 18. **The case by the 4th, 7th, 11th & 12th Defendants** 19. On 20th November, 2024 M/s Awino for the 4th, 7th, 11th and 12th Defendants had the following opening remarks: - * 1. **Opening remarks by M/s. Awino Advocate and Mr. Noor Advocate: -** 20. M/s Awino Advocate informed the Court that the last time the matter was in Court, the Defendants had sought leave to file their documents out of time. Counsel stated that pursuant to that leave, they filed a Special Power of Attorney dated 21st February 2024, whereby the 4th Defendant donated power to Mr. Mohammed Hussein. 21. The Counsel further explained that following the registration of the Special Power of Attorney, the Defendants wished to inform the Court to take record of the amendment to the witness statement. Specifically, in place of the name Aluiya Omar Sagaf (the 4th Defendant), the witness statement was to reflect Mr. Mohammed Hussein as the duly appointed attorney and witness. 22. Mr. Noor averred that they denied the Plaintiff’s claim of Land Adverse Possession. The property belonged to their client – the 4th Defendant who was the registered owner. 23. **Examination in Chief of DW - 2 by Mr. Noor & M/s. Awino Advocate.** 24. DW - 2 was sworn and testified in Kiswahili/English language. He was called MOHAMED SHARRIF HUSSEIN, a citizen of Kenya and holder of the national identity card as shown to Court during the hearing of this case. The 4th Defendant was his mother. He stated that he was in court to represent her as she was very old and sickly. DW - 2 told the court that his mother had donated to him a Special Power of Attorney dated 21st February, 2024, which he relied upon. DW - 2 produced Defendant Exhibit No. 1, being the Power of Attorney. 25. DW - 2 testified that the property known as Sub - division No. 11255/MN/2 belonged to his mother, the 4th Defendant. He stated that there was a transfer of title deed, and the list of documents was dated 13th October, 2023. DW - 2 produced Defendants’ Exhibits 2 and 3, being the transfer and title deed, which his mother had acquired in the year 2010. DW - 2 told the court that from the time of acquisition, there had been no one on the property and no building. He stated that only recently there was a foundation and a slab. 26. DW - 2 testified that in the year 2021, they discovered these developments. He explained that he knew of this year as he used to visit the land regularly until the outbreak of COVID‑19. DW - 2 stated that when his mother acquired the property, there was no caveat registered against it. From the time of acquisition, there had been no complaint. He told the court that they only came to know about the present case from an advertisement published in the newspaper. 27. DW - 2 testified that they had never received any demand letter in respect of the property. DW - 2 averred that they had been paying land rates to the County Government of Mombasa, and produced Defendant Exhibit No. 4, being a bundle of receipts. DW - 2 told the court that the claim of adverse possession by the Plaintiffs had no merit, as from the time his mother acquired the property, it had never been occupied by anyone. DW - 2 concluded by stating that he wished the property to be returned to his mother. He added that if the Plaintiffs wished to buy it, they could do so lawfully. 28. **Cross examination of DW - 2 by M/s. Kiti Advocate.** 29. DW - 2 told the Court that his mother was the current owner of the property. DW - 2 told the court that from the time he visited the land in the year 2021, there was only a slab and a foundation on the property. DW - 2 stated that every time he visited the land, he was chased away by people engaging in mob justice. 30. **Cross examination of DW - 2 by Mr. Mgupu Advocate.** 31. DW - 2 confirmed that his mother bought it in the year 2010. From that time there was no development. She fenced it thrice, but it was destroyed. DW - 2 did not have any photographs. His mother now resided in Malindi, she had never resided on the land. In essence from the time she bought the land he had been the manager of the property. With reference to the Clearance of Rate Certificate of 2023 and the pleadings, the witness told the court that it was filed on 18th January, 2021. It was not true that he paid the rates after the case was filed. He had been paying the rates from the year 2010, i.e. before 2021. The receipts were not in court but they had been paying. DW - 2 testified that when he visited the land, he found that there was a slab and a foundation already constructed. DW - 2 told the court that he never took photographs of the developments. DW - 2 stated that he never recorded a complaint at the police station to be issued with an OB number. 32. DW - 2 testified that the slab occupied the whole parcel of land. DW - 2 told the court that he never sued the person who had built the slab for damages. DW - 2 stated that he last visited the land in the year 2021, noting that the global pandemic COVID ‑ 19 had broken out in the year 2019–2020. DW - 2 testified that he never reported the trespass to the police as he feared for his life. DW - 2 told the court that from the time his mother purchased the property, they had engaged someone called Mohamed as caretaker. DW - 2 stated that he resided in Kajiado and would move to the property two or three times. DW - 2 testified that from the time he visited the property in the year 2021, he had never returned, as he feared for his life due to threats from goons. 33. **Re - examination of DW - 2 by Mr. Noor Advocate.** 34. DW - 2 confirmed that he discovered the trespass in the year 2021, whereas the suit had been filed earlier on 18th January, 2021. DW - 2 told the court that he had visited the land two to three times. DW - 2 stated that the receipts issued by the County Government of Mombasa were in the names of the 4th Defendant. 35. DW - 2 testified that they could not afford to develop the property at the time of acquisition as they lacked the financial capacity, but they had many plans to develop it in the future. 36. **Clarification by the Court** 37. DW - 2 reiterated that he came to know about the case from an advertisement on 20th July, 2021 and the suit was filed on 18th January, 2021. 38. The 4th, 7th, 11th and 12th Defendant marked their case closed on 20th November, 2024 through their counsel Mr. Noor Advocate. 39. **The 15th Respondent’s case** 40. The 15th Respondent responded to the Originating Summons through a 9 Paragraphed response dated 29th June, 2022 where the 15th Respondent averred that: 1. Save for what was expressly admitted, the Affiant denied each and every allegation contained in the Plaint as if the same were set out verbatim and traversed seriatim. 2. The 15th Respondent in response to the Originating summons application stated as follows: - * According to the records held at the Land Registry, the suit property known as Subdivision No. 310 of Section II Mainland North, CR 1173 was transferred by one Lawrence Johnson Mwachiro Harro to Hussein Shariff Omar and Hassan Mohamed Saleh Bagha (the 1st Respondent) vide a transfer dated 30th April, 2009 and registered on 7th May, 2009. * The suit property was subsequently sub - divided, transferred, and certificates of title were issued to the 2nd to 14th Respondents herein. 1. The 15th Respondent was a stranger to the contents of Paragraphs 2 and 3 of the grounds of the application and put the Applicants to strict proof thereof. 2. The 15th Respondent was a stranger to the contents of Paragraphs 5 and 6 of the application and similarly put the Applicants to strict proof thereof. 3. The 15th Respondent averred that at all material times to this suit, the office of the Land Registrar conducted the registration with due diligence and based on properly executed documents presented for registration, all done in good faith. The Applicants were put to strict proof of any allegations to the contrary. 4. The 15th Respondent emphasized the statutory duty of the Land Registrar in this case, specifically: 1. To register land in the manner and in accordance with documents lodged at the registry and the law. 2. To ensure that all land allocation and registration was conducted properly and in compliance with relevant documents and legal requirements. 1. The 15th Respondent admitted the territorial jurisdiction of this Honourable Court. 3. The Defendants’ case was progressively heard and closed on 20th November, 2024, upon adoption of the witness statements and documentary bundles of the 11th and 15th Defendants by consent of all parties. 4. **Submissions** 5. On 20th November, 2024 after the Plaintiffs and Defendants marked the close of their cases, the Honourable court directed that the parties file their submissions within stringent timeframe thereof on. 6. Pursuant to that, all parties complied. The Honourable court reserved a date to deliver its Judgement on notice. Eventually it was delivered on 31st July, 2026 accordingly. * 1. **The written submissions by the Plaintiff** 7. The Plaintiff through the Law firm of Messrs. Said Mgupu and Company Advocates filed their written submissions dated 18th May, 2026. Mr. Mgupu Advocate submitted that the Plaintiffs in the matter had sought orders declaring that they had acquired plots numbers 11264/11/MN, 11258/11/MN, 11256/11/MN, 11255/11/MN, 11254/11/MN, 11253/II/MN, 11252/11/MN, 11251/11/MN, 11250/11/MN, 11249/II/MN, 11247/II/MN, 11248/II/MN and 11246/II/MN (the suit properties) by way of adverse possession. The suit properties were located in Bombo area, Utange, and were subdivisions of a larger plot, initially plot number 310/IIMN. The 1st Defendant had been the owner of plot number 310/IIMN which he subdivided and whose subdivisions he then sold to the 2nd to the 14th Defendants. 8. It had been the Plaintiffs’ case that the 1st Defendant had been aware that the Plaintiffs were in possession of the suit property when he embarked on the subdivision process. He had proceeded with the process regardless, with the intention to sell the subdivisions just to get the land out of his hands albeit at a profit. That had been why the Plaintiffs had established at the trial that all purchasers of the suit properties had been either foreigners, non-resident Kenyans living abroad or Kenyans residing out of Mombasa’s jurisdiction. That had also explained why the 1st Defendant had not appeared for the trial, had not responded to the application filed nor given any testimony to support any of the averments made by the witnesses who had chosen to defend the suit. Indeed, not one single Defendant sued as owner of the suit properties had appeared in person to testify. The two witnesses who had testified had all been granted authority and/or had appeared as attorneys on behalf of the Defendants who had been sued and who had purchased the suit properties from the 1st Defendant. 9. The Learned Counsel submitted that it had been the 7th, 12th, 11th and 4th Defendants’ case that they had been proprietors of plots numbers 11264/11/MN (CR. NO. 47977), 11252/II/MN (CR. NO. 47965), 11251 (CR. NO. 47964) and 11255/11/MN (CR. NO. 47968) respectively. They had purchased the suit properties from the 1st Defendant and one Hussein Shariff Omar. They had duly attached evidence of purchase and of ownership of the properties above. The 7th, 11th and 12th Defendants had been British nationals who had bought the properties using their passports. The 7th and 12th Defendants had not given any testimony personally but had appeared through their attorney Riwaya Mohamed Ramzan. The 4th Defendant who had resided in Kajiado County had also given authority to her son to swear her witness statement and testify on her behalf at the hearing of her case. The 11th Defendant had not appeared during the trial to testify nor to present her case in court. Her pleadings had therefore been irrelevant. 10. The rest of the Defendants save for the Lands Registrar (the 15th Defendant), had not appeared nor had they filed any document in their defence of the suit properties. The Plaintiffs had urged the court to enter judgment against them in that regard. The main contention in the suit had been whether the court should have allowed the Plaintiffs’ application and determined that the Plaintiffs had become entitled to the suit properties by way of adverse possession or whether that right had not accrued and consequently the Plaintiffs had not been entitled to the orders sought. It had however been remembered that not one of the Defendants had filed a counterclaim seeking the Plaintiffs’ eviction from the suit property should their case have been dismissed. 11. The Learned Counsel submitted on the position of the law that on adverse possession, the law on adverse possession in Kenya had been moot. The Plaintiffs had relied on Section 38(1) and (2) of the Limitation of Actions Act, Cap 22. According to the Learned Counsel, jurisprudence abounds on what any claimant must prove in to be entitled to land by way of adverse possession. The Learned Counsel relied on the case of ***“Kasuve – Versus – Mwaani Investments Limited & 4 Others 1KLR 184”***, where the Court of Appeal restated what a Plaintiff in a claim for adverse possession had to prove in the following terms: ***“In order to be entitled to land by adverse possession, the Claimant must prove that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”.*** 1. Further the Learned Counsel relied on the Court of Appeal decision in ***“Mate Gitabi – Versus - Jane Kabubu Muga & 3 Others [2017] eKLR”***, where the Court held that: ***“For one to succeed in a claim for adverse possession one must prove and demonstrate that he had 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. See also…Kasuve vs Mwaani Investment Limited & 4 Others [2004] 1KLR where this Court stated as follows; “In order to be entitled to land by adverse possession, the claimant must prove that she has been in exclusive possession of land openly and as of right and without interruption for 12 years, either after dispossessing the owner or by discontinuation of possession by the owner on his own volition.”*** 1. On the analysis the Learned Counsel submitted that the key test was that the Plaintiff must have been dispossessed or had discontinued possession of the property as indicated above. PW - 1 and PW - 2 had both given uncontroverted evidence that together with the rest of the Plaintiffs, they had all together been in open and exclusive possession of the suit properties and as of right without interruption or disruption for a period of more than 12 years. Photographs had been produced before court to show the extent of their developments in the suit properties which had shown clearly that the Plaintiffs had been in possession for a lengthy period of time exceeding 12 years. Evidence of their possession had not been strenuously challenged by the 4th, 7th, 11th and 12th Defendants. 2. The Learned Counsel submitted that some of the Plaintiffs had obtained the suit properties by way of invading the land while others had claimed to have purchased from invaders. As long as it had been established that their invasion and stay had been exclusive, openly and without interruption for 12 years, with the knowledge of the owner, their claim would have succeeded. 3. Meanwhile, Riwaya Mohamed Ramzan had appeared as DW1. She had given testimony on behalf of the 7th and 12th Defendants as their attorney through a Power of Attorney registered on 8th March, 2021. She had confirmed that both the 7th and 12th Defendants had been British citizens who had acquired their two properties sometime in 2011. That since then, they had never seen or visited them meaning, they had never practiced actual possession of the suit properties. She had claimed that the two had given her authority to look after the plots and she had employed a caretaker to maintain the two properties while they had been away. No evidence of an agreement had been produced of such employment or even a transaction implying payment of a monthly wage. The caretaker had also not been called to give his testimony. 4. DW - 1 had also confirmed that the Power of Attorney had been executed and registered after the suit had been filed. Further, all the land rates receipts produced by DW - 1 had also shown that they had been procured after the Plaintiffs had filed the present suit. They had indicated that land rates had been paid in 2021. All this had culminated to the fact that all the evidence produced by DW - 1 had been an afterthought. From 2011 at the time of purchase of the suit properties, no land rates had been paid as alleged, the 7th and 12th Defendants had been away leaving the suit properties unattended contrary to DW - 1’s allegation. It had been the Plaintiffs’ case as explained earlier, that no physical possession had been obtained by the 7th and 12th Defendants due to the fact that the suit properties had already been in possession of the Plaintiffs. 5. Similarly, DW - 2 who had testified on behalf of his mother the 4th Defendant, had also given evidence of ownership. He had stated that his mother had been living in Kajiado even before year 2011 when she had acquired the suit property. She had never visited the suit property since then. The last time he had checked upon the property had been once sometime in the year 2017 when he had come to Mombasa for some errands. He had found a foundation of a house at their property. He had neither reported this at the police station nor had he taken any legal action to evict the purported occupier until he had seen the suit against his mother in a newspaper advert. 6. By an application dated 20th May, 2022, the Plaintiffs had sought orders that the court conduct a site visit over the suit properties to get a first-hand view and a valuable opportunity to appreciate the nature of the suit properties. The application had not been opposed by any of the Defendants. During the site visit, the Plaintiffs had been present in person. None of the Defendants had been present save for the 7th and 12th Defendants’ father. All parties present had observed that all the suit properties had been occupied and permanent buildings had been in place contrary to the 7th and 12th Defendants’ assertions. 7. In conclusion, the Learned Counsel submitted that from the evidence they produced in court and according to their testimony, the Plaintiffs had passed the test to enable the Court conclude that they had indeed acquired the suit properties by way of adverse possession and kindly urged this Honourable Court to do so. Mere evidence of change of title from one party to the other as was the case with the 1st Defendant to the 2nd to 14 Defendants had been declared by this Court as not enough to dispossess the adverse possessor nor is evidence of actual ownership. They therefore urged this Honourable Court to allow the Plaintiffs’ claim as prayed. 8. **The Written Submissions by the 4th, 7th, 11th and 12th Defendants** 9. The 4th, 7th, 11th and 12th Defendants through the Law firm of Messrs. Sachdeva, Nabhan & Saleh Advocates LLP filed their written submissions dated 22nd May, 2026. Mr. Noor Advocate commced his submissions by stating that Originating summons dated 18th January, 2024 (later converted to Plaint) that the Applicants had sought orders from the Honourable Court to be declared as having acquired ownership of Plot Nos. 11264/II/MN, 11256/II/MN, 11255/II/MN, 11254/II/MN, 11253/II/MN, 11252/II/MN, 11251/II/MN, 11250/II/MN, 11249/II/MN, 11248/II/MN, 11247/II/MN, and 11246/II/MN by adverse possession. They had also sought orders that the 15th Respondent/Registrar rectify the register by cancelling all subdivisions of Plot No. 310/II/MN as well as a permanent injunction against the Respondents restraining them from evicting or interfering in any manner whatsoever with the Applicants’ peaceful possession of Plot No. 310/II/MN. It had been the Applicants’ claim that they had been in occupation of the Plot since 2000 so as to warrant their claim through adverse possession. 10. The 7th and 12th Respondents through their duly constituted/ Appointed Attorney Riwaya Mohamed Ramzan testified in Court that: 11. They were the registered owners of the parcels of land i.e. the * 7th Respondent bought the property 11264/II/MN which was transferred to her and a title issued on 16th March, 2021. * 12th Respondent bought the property 11252/II/MN which was transferred to him and title issued on 16th March, 2011. * The copies of the transfers and title in respect are annexed to the 7th and 12th Respondents' Replying Affidavit to the originating summons dated 2nd June, 2021. 1. According to the Learned Counsel, they also noted that the Applicant sought orders of cancellation of the register in respect of Plot No. 310/II/MN (the mother title) registered in the name of the 1st Respondent. The 7th and 12th Respondent through their Attorney testified that they had been regularly visiting their properties to ensure that they were well maintained and have been paying Land Rates. They annexed to their Replying Affidavit dated 2nd June, 2021 the statement from the County Government showing the regular payment of Land rates. The 7th and 12th Respondent also denied the averment of the Applicant/Plaintiff alleging having invaded the property in 2000 and infact averred that the 1st Plaintiff attempted to invade and or trespass on their properties around October, 2020. 2. When the 7th and 12th Respondents got information of the attempted trespass around October, 2020, they immediately sent a representative to the 1st Applicant to stop any illegal construction on the suit properties which belonged to the 7th and 12th Respondents. According to the Learned Counsel, the 7th Respondent also contended that when her representative Riwaya Mohamed confronted the 1st Applicant over the alleged trespass, the 1st Applicant acknowledged that he had trespassed on the property plot No. 112641/II/MN and the 1st Applicant one Ali Omar Khamis agreed to buy the land from the 7th Respondent. The written acknowledgement of trespass by the 1st Applicant was annexed to the Notice of Motion Application dated 18th March, 2024 marked as annexture No. “UA-8”. The Applicants cannot thus claim that their occupation if at all was uninterrupted. 3. The Learned Counsel submitted that they noted that the Applicants did not provided any collaborative evidence from the Area Chief or any competent authority that they informed had been living on the suit properties since 2000. The Applicant did not provide any documents i.e Sale Agreement, building approvals for the structures to support the assertion that they were built since 2000. The Applicants did not show any survey may or goggle map that could corroborate that the structures on the suit properties existed since 2000. 4. They submitted therefore that this was a case of the Applicant simply claiming to have lived on the suit property since 2000 without evidence and expecting the court to behave their word against the Respondents. They further submitted that the transfer in the name of the 7th and 12th Respondents and title was registered on 16th March, 2011. By simple arithmetic the 12 year period would thus lapse on 16th March, 2023. The suit against the 7th and 12th Respondents which was filed on 19th January, 2011 was thus premature and thus a claim for Adverse possession could not be sustained. 5. On the 4th Respondent’s case, the Learned Counsel submitted that the 4th Defendant/ Respondent testified through her duly appointed attorney Mohamed Shariff Hussein. He adopted the 4th Defendant's witness statement dated 25th July, 2023. It was his testimony that plot number 11255 (Orig. No.310/11) of Section II Mainland North CR. NO. 47968 was sold to her by the 1st Respondent and transferred to her on 21st April, 2011. He produced the copy of title and transfer as well as the copy of the power of attorney an rates receipts. Her list of documents was dated 13th October, 2023. 6. He testified that that he bought the property with vacant possession and that he was regularly visiting the property to see if everything was in order. That sometime in 2007 when he went to look over the property he found someone had started building a foundation on the same. The implication here is that the attempted invasion was only recent and that the Applicants were not occupation even then. The Applicants claim that they were in occupation of the land for more than 12 years is therefore baseless. That he bought the property with vacant possession which transferred to me on 21st April, 2011 as evidenced in the title. The claim against him was filed in 19th January, 2011, at which point the statutory period of 12 years had not lapsed. The 12 year period lapsed on 21st April, 2023 two years after the suit had been filed which makes the whole suit fatally defective. 7. The Learned Counsel on the case of the 11th Respondent submitted that while the 11th Defendant did not testify in court, her witness statement dated 22nd November, 2022 was by consent of parties adopted as her testimony in this matter. In this regard, the Applicants ad this court cannot disregard her evidence. She also filed a list of documents dated 22nd November, 2022 which documents were produced by consent of parties and therefore are evidence in this matter. In her statement she testified she is the Registered proprietor of the Parcel known as TITLE NO. C.R 47964 being subdivision number 11251 (Original Number 310/7) of Section II Mainland North. 8. Further the Learned Counsel submitted that she purchased the Property with vacant possession from one HASSAN MOHAMED SALEH BAGHA and HUSSEIN SHARIFF OMAR for a consideration of Kenya Shillings Six Hundred Thousand (Kshs.600,000/=), of which she paid the full amount. the property was subsequently transferred to her vide a transfer instrument registered on 16th March 2011. She further stated that regularly visited her property after the successful transfer and have been promptly paying all the land rates due to the County Government of Mombasa and has been in current occupation of the said property. The 11th Defendant/ Respondent’s documents in her list of documents dated 22nd November, 2022 were produced by consent as Defence exhibit 1 to 5. That she bought the property with vacant possession which transferred to me on 16th March, 2011 as evidenced in the title.The claim against me was filed in 19th January, 2011, at which point the statutory period of 12 years had not lapsed. The 12 year period lapsed on 16th March, 2023 two years after the suit had been filed which makes the whole suit fatally defective. 9. On the analysis of the law, the Learned Counsel submitted that the **Blacks’ Law Dictionary 8th Edition** defines Adverse Possession as:- 10. The use or enjoyment of real property with a claim of right when that use or enjoyment is continuous, exclusive, hostile, open and notorious. 11. The doctrine by which title to real property is acquired as a result of such use or enjoyment over a specified period of time. 12. In Kenya the Limitation of Actions Act Cap. 22 provides for the period of time after which the true owner is barred from instituting a land recovery claim against the adverse possessor. A 12 year limitation period is provided. By dint of Section 7, upon expiring of 12 years from the date upon which a right in land is alleged to have arisen, a claimant cannot bring an action to enforce the same. 13. On the first issue for determination of whether the statutory period of 12 years had lapsed at the time the suit was filed for a claim of Adverse possession to be sustained, they reminded the Court that the transfer was in the name of the 7th and 12th Respondents and title was registered on 16th March, 2011. By simple arithmetic the 12 year period would thus lapse on 16th March, 2023. The suit against the 7th and 12th Respondents which was filed on 19th January, 2011 was thus premature and thus a claim for Adverse possession cannot be sustained. The 4th Respondent bought the property with vacant possession which transferred to me on 21st April, 2011 as evidenced in the title. The claim against 4th Respondent was filed in 19th January, 2011, at which point the statutory period of 12 years had not lapsed. The 12 year period lapsed on 21st April, 2023 two years after the suit had been filed which makes the whole suit fatally defective. 14. According to the Learned Counsel, the 11th Respondent bought the property with vacant possession which transferred to me on 16th March, 2011 as evidenced in the title. The claim against the 11th Respondent was filed in 19th January, 2011, at which point the statutory period of 12 years had not lapsed. The 12 year period lapsed on 16th March, 2023 two years after the suit had been filed which makes the whole suit fatally defective. They further noted a claim of adverse possession as against the 1st Respondent who was the registered owner of the mother title number 301/II/MN cannot also be sustained. 15. According to the Learned Counsel, the transfer of the mother title i.e Plot No. 310/II/MN was registered on 7th May, 2009 which is evidenced from the Applicants' own documents. This means the 12 years period lapsed on 7th May, 2021 for a cause of action of adverse possession to be sustained against the 1st Respondent. However, the Applicants filed their suit on 19th January, 2021 at which time the cause of action had not arisen. 16. It was their humble submission therefore that the suit against the 1st Respondent, the 7th and 12th Respondents were premature having been filed before the expiry of the 12 years statutory period and thus the suit is fatally defective. They submitted that Adverse possession in order to be put up as a plea on which title to land may be claimed or as defence to an ejectment suit, each of the following requirements must be established on a balance of probability by the person who says that by adverse possession a cause of action has arisen or that a suit against him is barred. These requirements were state in the case of ***“Gabriel Mbui – Versus - Mukundia Maranya (1993) KEHC 161 (KLR)”***, they are:- 17. 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 the statutory period. 18. 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. 19. The occupation of the land by the intruder who pleads adverse possession must be non-permissive use, ie without permission from the true owner of the land occupied. 20. The non-permissive actual possession hostile to the current owner must be unequivocally 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. 21. Acts of user by the person invoking the statute of limitation to found his title are not enough to take the soil out of the owner or his predecessors in title and to vest it in the encroacher or squatter, unless the acts be done which are inconsistent with the owner’s enjoyment of the soil for the purposes for which he intended to use it. It is incumbent on the person alleging a right by adverse possession to show, not only that his possession has lasted twelve or more years, but also that it has all the time been in open conflict with the title on which the owner relies. 22. The possession by the person seeking to prove title by adverse possession must be visible, open and notorious, giving reasonable notice to the owner and the community, of the exercise of dominion over the land. 23. The possession must be continuous, uninterrupted, unbroken, for the necessary statutory period. 24. the rightful owner or paper title holder against whom adverse possession is raised, must have an effective right to make entry and to recover possession of the land throughout the whole of, and during, the statutory period. 25. 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. Just as the adverse possessor cannot succeed if he did not know he was in actual possession of another's land, the owner who had not intended to part with possession or is unconsciously dispossessed, cannot be said to have been evicted or to have quite the land. 26. It was their humble submission that the Applicants have failed to discharge their burden of proof in this matter. They humbly submitted that the Applicants had not advanced any evidence whatsoever to support this claim for adverse possession. 27. According to the Learned Counsel, the Applicants had not provided any evidence that they actually invaded the land in 2000. There was corroborative evidence of any Chief or independent person. There was no evidence that they actually own the structures on the photos adduced in court. The structures can actually belong to any other person. They had made general prayers in the Originating summons. The Applicants had not pleaded which plot was occupied by which Applicant, it is impossible for all Applicants to have occupied each of the plots at the same time. 28. The 7th and 12th Respondents testified through their Attorney that they had a caretaker over their Plots numbers 11264/II/MN and 11252/II/MN. The 7th and 12th Respondents adduced Rates statements in their Replying Affidavit to demonstrate that they were actually paying land rates for the years after purchase of the properties. The Applicant claimed in his submissions that the 1st Defendant was aware that the Plaintiff/Applicants were in possession of the suit property when he embarked on the subdivision process. This is an unsupported allegation. There is no evidence whatsoever that the Plaintiff were in occupation at the time of subdivision or any evidence of any notice to the 1st Defendant. 29. The Applicants also claimed that the 7th and 12th Defendant were British citizens and were not in Kenya throughout this time. They submitted that this is not one of the requirements for adverse possession to be established. The requirement is for the Applicant to show he has been uninterrupted occupation of the property for at least 12 years. They reiterated that at the time of filing the suit, the 12 year statutory period had not lapsed, the suit was thus a not-starter. It is fatally defective and should be dismissed with costs. 30. They reminded the court that this Honourable Court is entrusted to protect the sanctity of the title under the provision of Sections 24(a) 25 and 26 of the Land Registration Act, 2012. 31. They urged this Court to protect the sanctity of the titles of the 4th, 11th, 7th and 12th Respondents. The Applicants entire case is based on mere allegations unsupported by tangible evidence. It was basically a case of the Applicant’s word against the Respondent. They humbly submitted the Respondent have established their ownership of the suit properties and their title is protected. The Applicants have failed to discharge their burden of proof. 32. It was their humble submissions that the Applicants/ Plaintiffs case should be dismissed as against the 4th, 11th, 7th and 12th Respondents with costs. 33. **Analysis and Determination** 34. I have keenly assessed the filed pleadings by all the Plaintiff and Defendants herein, the written submissions and the cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and the statutes. 35. In order to reach an informed, reasonable and just decision in the subject matter, the Honourable Court has crafted the following five (5) issues for its determination. These are: - 36. ***Whether the Plaintiffs have established the legal requirements for adverse possession over the suit properties, and in particular Plot No. 310/II/MN and Subdivision No. 11255/MN/2?*** 37. ***Whether the Defendants are the lawful registered proprietors of the suit properties and whether their titles are valid, regular, and enforceable under the law.*** 38. ***Whether the Plaintiffs’ occupation and developments on the suit properties amount to trespass or confer any equitable or legal rights capable of protection by this Court.*** 39. ***What reliefs, orders or remedies should issue in the circumstances, including whether the Plaintiffs are entitled to be registered as proprietors by way of adverse possession, or whether the Defendants are entitled to protection of their proprietary rights.*** 40. ***Who bears the costs of the amended originating summons?*** ***ISSUE No. a). Whether the Plaintiffs have established the legal requirements for adverse possession over the suit properties, and in particular Plot No. 310/II/MN and Sub - division No. 11255/MN/2*.** 1. **The Site Visit Report** 2. As already indicated, the Honourable Court conducted a Site Visit on 13th March, 2026. Below is the detailed report re – produced herein verbatim for ease of reference. **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **ELC (OS) NO. 6 OF 2021** **AT MOMBASA** **ALI OMAR HAMIS & OTHERS ……………………….…………………….PLAINTIFF** * **VERSUS -** **HASSAN MOHAMED BAGHA& OTHERS …………………………..DEFENDANTS** **THE SITE VISIT REPORT OF THE VISIT HELD AT KIEMBENI AREA ON 13TH MARCH, 2026.** 1. **Introduction** 2. The site visit (***“Locus in Quo”***) took place at Kiembeni area within the main town of Mombasa of the County of Mombasa. The team assembled at the site at 4.00pm. After short word of prayer the Judge provided the direction on how the site visit was to be undertaken by the team thereof. 3. **Present** 4. **The Court** 5. Hon. Justice L.L. Naikuni, Presiding Judge, ELC No. 3. 6. M/s. Firdaus Mbula – the Court Assistant. 7. Mr. George Omondi – The Judge’s Usher. 8. Mr. - John Mwaniki Ngari - The Judge’s Driver. 9. **The Plaintiffs** 10. Mr. Mgupu – The Advocate for the Plaintiffs. 11. Said Mguru. 12. Ali Hamisi Omar. 13. Razia Ambari. 14. Maru Nafula. 15. Mululi Nzundu. 16. Janet Mayeku. 17. Joyce Kadzo. 18. Festus Bandari. 19. Fransica Mwakazi. 20. Eugene Shironi Racheal Malombo. 21. Mejuma Nyambura. 22. Ziro Wanje. 23. Racheal Jami. 24. Kache Kazungu. 25. **The Defendants** 26. Mr. Iska Advocate for the Defendants. 27. Alwiya Omar Sagga – 4th Defendant. 28. Riwaya Ramzan – 7th Defendant. 29. Ramzan Issa Moh’d – 12th Defendant. (Hereinafter referred to as **“The Team”**) **C. Security Operatives** 1. Police – Kiembeni. 2. PC Salama Alfan. 3. PC David Mumo. 4. **The purpose for the Site Visit** 5. The Court informed the team the purpose of the site visit (***“Locus in Quo”***). It indicated that this was pursuant to a Court order in accordance with the provision of Section 173 of the Evidence Act, Cap. 80; Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010. The provisions of Order 18 Rule 11 of Civil Procedure Rules, *to wit: -* **Power to court to inspect;** **“The court may at any stage of a suit inspect any property or thing concerning which any question may arise”** While Order 40 Rule 10 (1) (a) provided *to wit: -* **“The Court may, on the application if any party to a suit, and on such terms as it thinks fit: -** 1. **Make an order for ….………Inspection of any property which is the subject matter to which any question may arise therein.** 2. By consensus of the parties, it was agreed that Site Visit be led by the Advocates and/or representatives of the parties present namely Ali Omar – for Plaintiff and Ramzan Issa Moh’d – 12th Defendant. The Judge elucidated that the site visit was not with a view of gathering further evidence on the case but to make observation on the factual realities on the ground to enable the Court in making a fair, just and equitable decision. Ideally, the Honorable Court informed the team that the visit was purely to look, feel and observe on the issues brought in Court while inspecting the place. 3. Hence, Court explained to the parties that the purpose was not to adduce fresh evidence nor venture onto the veracity of the evidence already adduced this cross examination, fill in gaps the parties evidence but purely to check and confirm the evidence lest the court runs into the risk of turning itself a witness in the case. A visit is an exception rather than the rule. 4. Parties were advised to sustain high dignity, decorum and decency during the visit. It would be a team work driven process. While recording of the proceedings using electronic devices or manual writing would be allowed, photography or video shooting was strongly condemned due to the likely hood of being abused particularly through social media. The report has endeavored to make some salient findings and perhaps make recommendations in order to expedite the hearing and final determination of the case. **IV. The Procedure** 1. The procedure upon which the site visit was to be conducted was explained to the team present. As indicated, it was mutually agreed that the team be guided by all Advocates for the Plaintiff and the Defendants who were knowledgeable of the place by moving around within and without the suit land. 2. **The Observations.** 3. Upon conducting an elaborate inspection through walking into each of the plots and development situated within the suit property, the team made the following observations. 4. ***The suit property:-*** The suit land is found on a rectangular long stretch of the place known as Kiembeni within the Mombasa town. There was a huge development for both residential and a few commercial purposes at the place. 5. The Plot Number 310 was sub-divided into 3 sub-divisions of size 40 by 80 Bombo, Maziwani area – Kiembeeni LR 310; Section 2 MN. 6. There was further Sub-division into 13 plots. Generally, the Plot measured is 2½ acres. 7. ***The dense population:-*** The site area was highly congested and with a dense population of close to 200 people. 8. ***Poor planning with no facilities:-*** There were both permanent and semi permanent concrete residential houses. These were both mansonettes and bungalows. They were extremely congested with no passage ways in between. There were no access road for motor vehicles. There were approximately 50 in total in number. The team noted that the place was poorly planned with no definite facilities such as sewage system nor waste disposal. It There would a major catastrophe in case of any menace or calamity such as fire breakdown or floods. 9. The team noticed the existence of other houses which were still under going intense construction. 10. ***Plantations:-***There were several plantations – cassava, banana trees etc. They were all for subsistence consumption. 11. ***Wet Swamp:-*** In the middle of the human habitation existed a huge and wet swamp. It was marred with mosquitoes and other insects. 12. ***The KPLC electricity lines:-*** There were several electric posts within the vicinity mounted by KPLC. They did not appear to be well set out. 13. ***Livestock:-*** There were Livestock – Goats and Poultry loitering within the congested estate feeding on food wastes. 14. **Directions** 15. Towards the end of the visit, the Honourable Court made the following directions:- 16. **That the Honourable Court to endeavor finalise the Site Visit report to be shared with parties for their approval and finalization.** 17. **That parties were granted leave to file and serve their written submissions.** 18. **That the Honourable Court to render its Judgment on 7th July, 2026.** There being no further business, the Site Visit came to an end at 6,30 p.m with a word of prayer. **SITE VISIT REPORT PREPARED AND SHARED AT MOMBASA ON THIS …….23RD ……….DAY OF …….MAY………….2026.** **…………………………………** **HON. MR. JUSTICE LL. NAIKUNI** **ENVIRONMENT AND LAND COURT AT** **MOMBASA** 1. Now turning to the issues under this sub‑heading, the Honourable Court has deciphered that the main issue is whether the Plaintiffs have satisfied the statutory and judicially established requirements for adverse possession. 2. 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. The doctrine is anchored on 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.”** 1. 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.** 1. 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.** 1. And Order 37 Civil Procedure Rules 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.”** 1. 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. 2. The essential elements to be proved are: 1. Actual, open, and continuous possession of the land for at least 12 years; 2. Possession that is exclusive, uninterrupted, and without the consent of the registered owner; 3. Possession that is notorious and adverse, inconsistent with the rights of the true owner. 3. In the present case, the Plaintiffs contended that they had occupied portions of the suit property since 2006, having been shown land by local elders and paying token amounts. They admitted that they were not issued with title documents, deed plans, or agreements, and acknowledged that allocation of land was ordinarily the role of Government. 4. The Defendants, however, produced title deeds, transfers, and receipts showing acquisition and registration of the suit properties in 2010 and 2011, and testified that they had been paying land rates and maintaining caretakers until 2017. They asserted that the Plaintiffs only invaded the land around October 2020, and therefore had not satisfied the statutory period of 12 years. 5. In the case:- ***“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].”*** 1. Similarly, 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 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.”*** 1. 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 v 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 V 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.’*** 1. Further, in the case ***“Mbira – Versus - Gachuhi [2002] 1 EALR 137”*** the court stated 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…”*** 1. Similarly 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; 2. ***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.*** 3. ***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.*** 4. ***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.*** 5. ***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.*** 6. ***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,*** 7. ***The possession must be continuous uninterrupted, unbroken, for the necessary statutory period.*** 8. ***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.*** 9. The Court must therefore determine whether the Plaintiffs’ alleged occupation from the year 2006 was continuous, exclusive, and adverse to the interests of the registered proprietors, or whether it was interrupted, permissive, or too recent to meet the statutory threshold. 10. Therefore, to determine whether the Plaintiffs/Applicants’ rights accrued the Court will seek to answer the following:- 11. How did the Applicant take possession of the suit property? 12. When did he take possession and occupation of the suit property? 13. What was the nature of his possession and occupation? 14. How long has the Applicant been in possession? 15. 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. 16. In the case of:- ***“Wilson Kazungu Katana & 101 others – Versus - Salim Abdalla (2015) eKLR”***, the Court of Appeal stated: ***“In order to acquire by statute of limitations a 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 and that what constitutes dispossession of a proprietor are acts done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use. A person who occupies another’s persons land with that person’s consent cannot be said to be in adverse possession as in reality he has not dispossessed the owner of the land and the possession is not illegal. …In other words his entry must be adverse to the title of the owner of the land. …Besides adversal entry into the land, the applicant must also demonstrate exclusive physical possession of the land and manifest unequivocally the intention to dispossess the owner. The occupation must be open, uninterrupted, adverse to the title of the owner, adequate, continuous and exclusive as already stated. The burden of proving all these is on the person asserting adverse possession…………..*** ***The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession. This was so stated by this court in the case of Githu – Versus - Ndele (1984) KLR 776. The appellants did not discharge the burden of proving and specifically identifying or even describing the portions, sizes and locations of those in their respective possession from the larger suit premises that they sought to have decreed to them.”*** 1. For possession to be adverse it must be actual, open, notorious, regular continuously uninterrupted, hostile, and exclusively occupied without any form of permission from the rightful owner for a statutory period of twelve years. 2. In the case of ***“Joseph Macharia Mwangi – Versus - Jonah Kabiru [2008] eKLR”***, the applicant filed suit alleging to have acquired 3 acres out of 5.1 acres of the title. The court [Kasango J] was not persuaded that he had put forth sufficient evidence of what he was in occupation of. It was held as follows: ***“It was essential in the Plaintiff’s claim for him to state in the evidence the exact or definite and distinct land he was claiming out of the five acres of the suit property. Such identification is an integral part of proving a claim for adverse possession. Although in his originating summons Plaintiff said he occupied 2 acres, in oral evidence he said that he did not know the exact acres he cultivated but he knew it was bigger than Defendant’s. The Plaintiff’s claim for that reason does fail.”*** 1. Recently, the Court of Appeal in the case of ***“Titus Mutuku Kasuve – Versus - Mwaani Investments & 4 Others, Court of Appeal at Nairobi, Civil Appeal No. 25 of 2002 [2004] eKLR”***, the Appellant had filed an originating summons claiming two portions of land measuring 40 acres and 20 acres respectively by way of adverse possession. His suit was dismissed. The Court of Appeal upheld the dismissal, the claim for 20 acres being premature, and the claim for 40 acres being unmaintainable, inter alia for reason that the Appellant had not proved exclusive possession of ***“any definite and distinct land ascertained to be 40 acres”***. ***ISSUE No. b). Whether the Defendants are the lawful registered proprietors of the suit properties and whether their titles are valid, regular, and enforceable under the law*.** 1. Under this sub‑heading, the Honourable Court has deciphered that the main issue is whether the Defendants have demonstrated lawful ownership of the suit properties by way of valid registration, and whether their titles meet the threshold of regularity and enforceability under the law. We examine the ownership of the suit property. The law provides under the provision of Section 26 of the Land Registration Act thus:- **“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”** 1. The law on ownership of land in Kenya is principally governed by the provision of Article 40 of the Constitution of Kenya, 2010, which guarantees the right to property, and by the Land Registration Act, No. 3 of 2012, which provides for registration of interests in land. Section 26(1) of the Act stipulates that a certificate of title issued by the Registrar upon registration shall be taken by the Court as prima facie evidence that the person named therein is the absolute and indefeasible owner, subject only to challenge on grounds of fraud, misrepresentation, illegality, or procedural irregularity. To that extent and scope of the Defendants rights it is imperative to take cognizance of the provisions of Sections 24 (b), 25 and 26 of the Land Registration Act, 2012. For convenience, the provisions of Section 24(a) of the Act are reproduced as hereunder; **24. Interest conferred by registration Subject to this Act—** **(a) 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; and** 1. The provision of Section 25 of the Act provides for the rights of such a proprietor and states 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-** 1. The provision of Section 152A of the Land Act No. 6 of 2012 prohibits unlawful occupation of land and states that **“A person shall not unlawfully occupy private, community or public land.”** 2. This Honourable Court have previously stated in the case of:- ***“Mwenye & 5 others – Versus - Tsama & 3 others [2025] KEELC 152 (KLR)”*** where the Court opined that: - ***“65. The above rights, interests and privileges accorded to a registered proprietor of land apply to the 1st and 2nd Defendants in this case having established that they are the proprietors of the suit properties. For the reasons tendered herein above, the Counter - Claim by the 1st and 2nd Defendants succeeds.”*** 1. The Defendants herein filed and during the hearing produced empirical evidence to support their case on land ownership. These included title deeds, transfers, and receipts showing acquisition and registration of the suit properties in the years 2010 and 2011. The Land Registrar (15th Respondent) confirmed that the transfers were duly registered, and that the parcels were subdivided and transferred to the Defendants in accordance with the law. 2. The Plaintiffs did not produce any documentary evidence of ownership, allocation, or registration. Their claim was premised on alleged occupation and token payments to local elders, which do not confer legal title under the Constitution or the Land Registration Act. 3. Therefore, the Honourable Court finds that the Defendants have established prima facie ownership of the suit properties through valid registration. On the contrary, the Plaintiffs have not demonstrated fraud, illegality, or procedural irregularity sufficient to impeach the Defendants’ titles. Consequently, the Defendants’ titles are valid, regular, and enforceable under the law, subject only to the determination of whether the Plaintiffs have acquired rights by way of adverse possession. ***ISSUE No. c). Whether the Plaintiffs’ occupation and developments on the suit properties amount to trespass or confer any equitable or legal rights capable of protection by this Court*.** 1. Under this sub‑heading, the Honourable Court has deciphered that the main issue is whether the Plaintiffs’ entry, occupation, and developments on the suit properties were lawful, or whether they amounted to trespass, and if so, whether such occupation conferred any equitable or legal rights enforceable by this Court. The law on trespass to land is well settled. Trespass occurs when a person enters upon land in the possession of another without lawful justification or consent. Under the provision of Section 3(1) of the Trespass Act, Cap 294 Laws of Kenya, such entry is actionable at the instance of the registered proprietor. 2. The Plaintiffs contended that they had occupied the suit properties since the year 2006, constructed structures, and carried out developments openly and continuously. They argued that their occupation was sufficient to confer rights by way of adverse possession. 3. However, the Defendants, produced title deeds and transfers showing lawful acquisition and registration of the properties in years 2010 and 2011. They testified that they had caretakers on the land until the year 2017, paid land rates, and only discovered encroachment around year 2020. They alleged that the Plaintiffs’ entry was recent, unlawful, and amounted to trespass. 4. The Court notes that mere occupation or development on land without the consent of the registered owner does not confer proprietary rights. Unless such occupation meets the threshold for land adverse possession, it remains trespass. The Plaintiffs did not produce any allocation documents, agreements, or evidence of consent from the Defendants. 5. Accordingly, the Court strongly finds that the Plaintiffs’ occupation and developments on the suit properties amounted to trespass, and did not confer any equitable or legal rights capable of protection by this Court, save for consideration under the doctrine of adverse possession already addressed under Issue No. 1. ***ISSUE No. d). What reliefs, orders or remedies should issue in the circumstances, including whether the Plaintiffs are entitled to be registered as proprietors by way of adverse possession, or whether the Defendants are entitled to protection of their proprietary rights.*** 1. Under this sub‑heading, the Honourable Court has deciphered that the main issue is whether the Plaintiffs have proved entitlement to registration as proprietors by way of adverse possession, or whether the Defendants, as registered owners, are entitled to protection of their proprietary rights under the law. 2. The Plaintiffs sought relief by way of adverse possession, urging the Court to order registration of the suit properties in their names. However, as analyzed under Issue No. 1, they failed to demonstrate continuous, exclusive, and adverse occupation for the statutory period of twelve (12) years. Their entry was recent, interrupted, and without proof of open and notorious possession sufficient to extinguish the Defendants’ titles. 3. The Defendants, on the other hand, produced title deeds, transfers, and receipts confirming lawful acquisition and registration of the suit properties. Under the provision of Section 26 (1) of the Land Registration Act, their titles are prima facie evidence of ownership, and no fraud, illegality, or procedural irregularity was proved by the Plaintiffs to impeach them. 4. The Court therefore finds that the Plaintiffs are not entitled to be registered as proprietors by way of adverse possession, and their occupation amounts to trespass. The Defendants are entitled to protection of their proprietary rights under Article 40 of the Constitution of Kenya, 2010. 5. The Court reiterates that under Section 26 (1) of the Land Registration Act, No. 3 of 2012, a certificate of title issued by the Registrar upon registration is prima facie evidence that the person named therein is the absolute and indefeasible owner. Such title can only be challenged on grounds of fraud, misrepresentation, illegality, or procedural irregularity. In the present case, the Defendants produced title deeds, transfers, and receipts confirming acquisition and registration of the suit properties in years 2010 and 2011. The Land Registrar (15th Respondent) corroborated that the transfers were duly registered, and that the parcels were subdivided and transferred in accordance with the law. 6. The Plaintiffs did not produce any documentary evidence of ownership, allocation, or registration. Their claim was premised solely on alleged occupation and token payments to local elders, which do not confer legal title under the Constitution or the Land Registration Act. The Court therefore finds that the Defendants’ titles are valid, regular, and enforceable, and that they are the lawful registered proprietors of the suit properties. This declaration affirms their proprietary rights under Article 40 of the Constitution of Kenya, 2010, which guarantees the right to property and protects registered owners from arbitrary deprivation. Consequently, the Plaintiffs’ occupation amounts to trespass, and the Defendants are entitled to the full protection of the law, including eviction orders, injunctive relief, and costs. 7. On the claim for the adverse possession failing carefully analyzed the pleadings, evidence, and submissions, the Honourable Court finds that the Plaintiffs have not satisfied the statutory threshold of twelve (12) years of continuous, exclusive, and adverse possession required under the Limitation of Actions Act, Cap 22 Laws of Kenya. Their occupation was recent, interrupted, and without proof of open and notorious possession sufficient to extinguish the Defendants’ titles. 8. Consequently, the Plaintiffs’ claim for adverse possession fails in its entirety. Their entry and developments on the suit properties amount to trespass, incapable of conferring any legal or equitable rights enforceable by this Court. On the other hand, the Defendants produced valid title deeds, transfers, and receipts confirming lawful acquisition and registration of the suit properties in 2010 and 2011. The Land Registrar corroborated the regularity of the transfers. No evidence of fraud, illegality, or procedural irregularity was adduced to impeach the Defendants’ titles. 9. The Court therefore declares the Defendants to be the lawful registered proprietors of the suit properties, entitled to full protection of their proprietary rights under Article 40 of the Constitution of Kenya, 2010 and Section 26(1) of the Land Registration Act, No. 3 of 2012. Their ownership is absolute and indefeasible, subject only to lawful limitation under the Constitution and statutes. 10. This declaration means that the Defendants’ rights to quiet possession, use, and enjoyment of the suit properties must be respected. The Plaintiffs, having failed to prove adverse possession, cannot lawfully interfere with or lay claim to the Defendants’ land. 11. Further, the Court notes that having found that the Plaintiffs’ claim for adverse possession fails, and that their occupation amounts to trespass, the Honourable Court holds that the Defendants, as lawful registered proprietors, are entitled to quiet possession and enjoyment of their property. 12. The Plaintiffs’ continued presence on the suit properties is unlawful and infringes upon the Defendants’ proprietary rights guaranteed under Article 40 of the Constitution of Kenya, 2010. The Court is therefore duty‑bound to protect the sanctity of title and ensure that registered owners are not arbitrarily deprived of their land. 13. Accordingly, the Court issues an order of eviction against the Plaintiffs from the suit properties, namely Plot No. 310/II/MN and Subdivision No. 11255/MN/2. The Plaintiffs are directed to vacate the land within a reasonable period to be specified in the final orders of the Court, failing which lawful enforcement measures shall be undertaken. This order of eviction is necessary to restore the Defendants’ proprietary rights, prevent further trespass, and uphold the principle of indefeasibility of title under the provision of Section 26(1) of the Land Registration Act, No. 3 of 2012. 14. On the permanent injunction restraining the Plaintiffs, having found that the Plaintiffs’ claim for adverse possession fails, and that their continued occupation amounts to trespass, the Honourable Court holds that the Defendants, as lawful registered proprietors, are entitled to protection of their proprietary rights. The law on injunctions is settled. In the case of:- ***“Giella – Versus - Cassman Brown & Co. Limited [1973] EA 358”***, the Court laid down the principles for granting injunctive relief: 15. The applicant must establish a prima facie case with a probability of success. 16. The applicant must demonstrate that they will suffer irreparable harm which cannot be adequately compensated by damages. 17. If in doubt, the Court should decide the matter on a balance of convenience. 18. In the present case, the Defendants have established a prima facie case by producing valid title deeds and transfers confirming lawful ownership. Their proprietary rights are guaranteed under Article 40 of the Constitution of Kenya, 2010 and Section 26(1) of the Land Registration Act, No. 3 of 2012. Continued trespass by the Plaintiffs undermines these rights and constitutes irreparable harm, as damages cannot adequately restore the sanctity of title. 19. The Court is further guided by ***“Mrao Ltd – Versus - First American Bank of Kenya Ltd & 2 Others [2003] KLR 125”***, where the Court of Appeal defined a prima facie case as one which discloses a right apparently infringed by the opposite party, calling for protection by the Court. The Defendants’ case clearly meets this threshold. 20. Accordingly, the Court issues a permanent injunction restraining the Plaintiffs, their agents, servants, or any other persons acting under their authority, from further trespass, occupation, or interference with the Defendants’ proprietary rights over Plot No. 310/II/MN and Subdivision No. 11255/MN/2. 21. In the circumstances, the appropriate reliefs and orders are: 22. **A declaration that the Defendants are the lawful registered proprietors of the suit properties.** 23. **A finding that the Plaintiffs’ claim for adverse possession fails.** 24. **An order of eviction against the Plaintiffs from the suit properties.** 25. **A permanent injunction restraining the Plaintiffs from further trespass, occupation, or interference with the Defendants’ proprietary rights.** ***ISSUE No. e). Who bears the costs of the Amended Originating Summons*** 1. Under this sub‑heading, the Honourable Court has deciphered that the main issue is who bears the costs of the Amended Originating Summons. It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 2. In***“Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus - Mutula Kilonzo & 2 others [2013] eKLR”***quoted the case of ***“Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227”***the Court held; ***“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp – Versus - Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”*** 1. In the present case, the Plaintiffs’ claim for land adverse possession has failed. The Defendants have successfully defended their proprietary rights, produced valid title documents, and established lawful ownership. The Plaintiffs’ occupation has been declared trespass, and eviction orders have been issued against them. 2. It follows, the Court finds no special circumstances to depart from the general principle. Hence, the Plaintiffs being the unsuccessful parties, shall bear the costs of the Amended Originating Summons, payable to the Defendants. 3. **Conclusion and Disposition** 4. Ultimately, having caused such an in‑depth analysis to the framed issues herein, the Honourable Court on the preponderance of probabilities and the balance of convenience finds that the Plaintiffs have not established their case against the Defendants. Thus, the Court proceeds to make the following specific orders: 5. **THAT Judgment be and is hereby entered in favour of the 4th, 7th, 11th and 12th Respondents in respect to the Replying Affidavit sworn on 2nd June, 2021 and the Response by the 15th Respondent dated 29th June, 2022.** 6. **THAT the Plaintiffs’ claim in respect to the Amended Originating Summons dated 2nd March, 2022 and filed on 3rd March, 2022 be and is hereby found to have no merit and thus it be dismissed with costs.** 7. **THAT a declaration do and is hereby issued that the Respondents are the legal and absolute registered proprietors of all that property known as Plot No. 310/II/MN and Subdivision No. 11255/MN/2, with all the indefeasible titles, right and interest vested in them by law and being valid, regular, and enforceable under the law.** 8. **THAT an order do and is hereby issued evicting the Applicants, whether by themselves, servants, agents, employees and/or anyone claiming therefrom, from the suit properties WITHIN THE NEXT NINETY (90) DAYS from the date of entry of Judgment herein, pursuant to the provision of Section 152E of the Land Act, No. 6 of 2012 failure upon which the OCS and OCPD Bamburi and or Kiembeni shall intervene and use reasonable force to assist in enforcement of the eviction order against the Applicants.** 9. **THAT an order do and is hereby issued for a Permanent Injunction restraining the Applicants, whether by themselves, their servants, agents, employees and/or anyone claiming under them, from entering upon, re‑entering, trespassing onto, laying a claim to, building on, interfering with and/or in any manner whatsoever dealing in the Respondents’ properties known as Plot No. 310/II/MN and Sub - division No. 11255/MN/2.** 10. **THAT the Respondents shall have the costs of the suit to be borne by the Applicants jointly and severally.** **IT IS SO ORDERED ACCORDINGLY** **JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS ……31ST …..…DAY OF ………JULY..………….2026.** **……………..….……………………..** **HON. MR. JUSTICE L.L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT MOMBASA** **Judgement delivered in the presence of: -** 1. M/s. Firdaus Mbula – the Court Assistant. 2. Mr. Mgupu Advocate for the Plaintiffs. 3. Mr. Noor Advocate for the 4th, 7th, 11th & 12th Defendants/Respondents. 4. No appearance for the 1st, 2nd, 3rd, 5th, 6th, 8th, 9th, 10th, 13th, 14th & 15th Defendants/Respondents.