https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3542

**REPUBLIC OF KENYA** **IN THE ENVIRONMENTAL AND LAND COURT OF KENYA** **KWALE** **ELC CAUSE NO. 13 OF 2024 (O.S.)** **IN THE MATTER OF: AN APPLICATION UNDER SECTION 17 & 38 OF THE LIMITATION OF ACTIONS ACT CAP 22 AND SECTION 7 (d) OF THE LAND ACT NO. 6 of 2012 LAWS** **AND** **IN THE MATTER OF: ACQUISITION OF TITLE BY ADVERSE POSSESSION** **AND** **IN THE MATTER OF: LAND PARCEL NO. KWALE/DIANI/1170** **BETWEEN** **LOISE WAITHIRA HINGA..………..…………………..…..…...APPLICANT** * **VERSUS –** **HEIKE SCHRADER ……………………..…………………….RESPONDENT** **JUDGEMENT** 1. **Preliminary** 2. The Judgement of this Honourable Court pertains to the civil suit by way of Originating Summons dated 2nd December, 2024. It was instituted by the Palintiff, *Loise Waithira Hinga*, under the provision of Sections 17 and 38 of the Limitation of Actions Act Cap. 22 and Section 7(d) of the Land Act No. 6 of 2012, seeking to be declared the absolute proprietor of all that parcel of land known as Land Reference No. KWALE/DIANI/1170 by way of Land adverse possession*.* 3. Indeed, the Plaintiff was able to properly serve the pleadings upon the Defendant through substituted means by publishing an advertisement in the local edition of ***“The Daily Nation”*** newspaper of 13th February, 2025 which had a wide nation circulation. This was demonstrated through an Affidavit of Service dated 4th March, 2025 and sworn by Mr. George Mungai Kamau, an Advocate of the High Court of Kenya and the one who has the conduct of this case on behalf of the Plaintiff herein. 4. Despite of the afore stated proper service of the Originating Summons, the Defendant failed to enter appearance or file any response. Subsequently, the matter proceeded by way of formal proof in accordance with the provision of Order 10 Rules 4, 5, 6, 9 and 10 of the Civil Procedure Rules, 2010. 5. **Court directions before the hearing** 6. On 13th March, 2025, upon confirming that the Plaintiff had complied with Order 11 of the Civil Procedure Rules, 2010, the Honourable Court provided direction in accordance of the provision of Order 37 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010. the Honourable Court directed that the matter be set down for hearing. The Court ordered that:- 7. There be conversion of:- (i). of the Originating Summons be converted into a Plaint; ii). the Applicant and Respondent redesignated as Plaintiff and Defendant respectively. 8. The annexures to the Supporting Affidavit and the Replying Affidavit treated as the Plaintiff’s and Defendant’s List of Documents. 9. Further, it directed that the matter proceed on by way of “***Viva Voce”*** evidence whereby parties were granted leave to the Plaintiff to adduce oral testimony supported by documentary exhibits. 10. On 25th June, 2025, the matter was fixed for hearing. Owing to anticipated national protests in Nairobi, the Court allowed the hearing to proceed by virtual means at 10:15 a.m; the Plaintiff testified as PW - 1. On 27th October, 2025, the matter resumed virtually and the Plaintiff called PW - 2, a neighbor. After which they marked their cases closed. 11. **The case of Plaintiff/Applicant** 12. The Plaintiff/Applicant sought the following orders:- 13. ***A declaration that the title deed of the said of HEIKE SCHRADER of all that Parcel of Land registered as KWALE/DIANI/1170 has been extinguished by the Applicant's adverse possession thereof for a period of more than 12 years.*** 14. ***That the Applicant herein be declared to be entitled by way of adverse possession of over 12 years to 0.101 Hectares of land comprised in Land Parcel No. KWALE/DIANI/1170 situate in Diani within Kwale County.*** 15. ***An order do issue directing the Land Registrar Kwale Land Registry to register the Applicant as the absolute proprietor of 0.101 Hectares comprised in Land Parcel No. KWALE/ DIANI/1170*** 16. ***THAT the costs of this application be in cause.*** 17. The Original Summons was based on the following grounds on the face of it and those of the 9 paragraphed supporting affidavit sworn by LOISE WAITHIRA HINGA, the Plaintiff sworn on the same day with the Originating summons where she averred that:- 18. She was the Plaintiff therein, well versed with the facts of the application, and that she swore the application in support of the prayers sought. (Annexed and marked as “LWH – 1” was a copy of her National Identity Card). 19. The Defendant was the legal registered owner of all that parcel of land known as LR No. KWALE/DIANI/1170, measuring 0.101 Ha situate in Diani within Kwale County. (Annexed and marked as “LWH - 2 a, b and c” were copies of the Defendant’s title deed, a certified copy of the Land register, and a Certificate of Official search dated 3rd June, 2022). 20. She took physical possession of the subject property in the year 2003 and since then, the Defendant had never been on the suit property to claim it, nor had she been evicted from the suit property by anyone. 21. She had constructed a perimeter fence around the property and developed it by constructing structures, a borehole, a pit latrine, and undertaking animal farming on the property. (Annexed and marked as “LWH - 3a, b & c” were photographs of the suit property). 22. She had further connected piped water and incurred electricity expenses on the suit property. 23. She had enjoyed continuous, open, exclusive, and undisturbed occupation of the suit property without interruption from the Defendant or any person, agent, or employee acting on the Defendant’s instructions for a period of over 20 years. 24. She had been advised by her advocates on record, which advice she verily believed to be true, that she could claim to be vested and registered as the owner of the subject property after living and having uninterrupted occupation of the land for a continuous period of 12 years. 25. She prayed that the application be allowed as sought, and that she be vested, registered, and issued with a title deed for all that parcel of land registered as LR No. KWALE/DIANI/1170 measuring 0.1 Ha. 26. The Affiant stated that whatever was deponed therein was true to the best of her knowledge, information, and belief, save for information obtained from the aforementioned sources. **Opening remarks by the Learned Counsel for the Plaintiff** 1. On 25th June, 2025, before the commencement of adducing of the oral testimony, the Learned Counsel representing the Plaintiff presented the following opening remarks. The Learned Counsel submitted that the subject matter was all that parcel of land known as LR. No. Kwale Diani/1170 registered in the name of the Defendant but it's in physical occupation by the Plaintiff for Continuous and uninterrupted occupation for 23 years. They sought the orders of Land Adverse possession and the names of the Defendants to be cancelled. 2. Thereafter, the Plaintiff called PW - 1 and who testified as follows. 3. **Examination in Chief of PW - 1 by Mr. Mungai Kamau Advocate.** 4. PW - 1 was sworn and testified in the English language. She was called LOUISE WAITHERA HINGA, a citizen of Kenya holding the national identity card bearing all the particulars as indicated from it and as shown to court during the hearing session. That she was born in the year 1967. She averred that she was the Plaintiff in the matter and had sworn an affidavit dated 2nd December 2024. From that affidavit, PW - 1 produced several documents marked as Plaintiff Exhibit Numbers 1, 2(a), 2(b), 2(c), and 3(a) in that order. PW - 1 deponed that she moved into the suit property in the year 2003, constructed permanent structures, commenced farming, applied for electricity, and dug a borehole. PW - 1 stated that the structures were permanent in nature as shown in the photographs annexed. 5. PW - 1 averred that she cultivated cassava, mangoes, and maize during the rainy season, and also reared livestock including cattle, goats, and poultry. PW - 1 further deponed that she constructed a perimeter wall around the property. PW - 1 stated that since the year 2003 she had never seen anybody, including the Defendant, came to claim the land. PW - 1 averred that the Defendant had neither by proxy nor personally filed any suit against her. PW - 1 deponed that she had never known who the owner of the property was, and neither did the neighbours know him. 6. PW - 1 stated that she served the Defendant by substituted means through publishing an advertisement in one of the local newspaper with a wide national circulation. PW - 1 prayed that she be granted title to the property so that she could live in peace once and for all. 7. The Plaintiff called PW - 2 on 27th October, 2025 who told the court that:- * 1. **Examination in Chief of PW – 2 by M/s. Washalla Advocate.** 8. PW - 2 was sworn and testified in the English language. She was BETTY NYAMBURA MURAYA, a citizen of Kenya and holder of the national identity card bearing all the particulars shown to Court during the hearing session. She told the court that she lived in Diani and was a business lady. PW - 2 deponed that on 7th July, 2025 she recorded a witness statement and wished to have it adopted as the Plaintiff’s evidence in support of the case. PW - 2 averred that she had known the Plaintiff since the year 2005, that the Plaintiff was her neighbour and a good friend. PW - 2 stated that the property was situated at Diani next to her house, and she had visited the Plaintiff on several occasions. PW - 2 deponed that there was a permanent house and a perimeter wall on the property, that electricity had been installed, and that the Plaintiff kept and reared livestock including goats and cattle and cultivated crops on the land. 9. PW - 2 stated that she had not seen anyone come to claim the land. PW - 2 deponed that she had lived in the area since the year 2002, and within the surroundings there were other neighbours such as Mama Hassan, as well as cottages including Likizo Cottages and Huriga Villas. 10. On 27th October, 2025 the Plaintiff through her legal counsel M/s Washalla marked her case closed. 11. **Submissions** 12. On 27th October, 2025, immediately after the closure of the Plaintiff’s case the Honorable Court directed the Originating summons dated 2nd December, 2024 be canvassed through written submissions. Thereafter on 9th December, 2025, the Honorable Court reserved a date for delivery of Judgement on notice. Eventually, due to unavoidable circumstances, it was delivered on 7th May, 2026 accordingly. 13. **The Written Submissions by the Plaintiff** 14. The Applicant through the Law firm of Messrs. Mungai Kamau & Co. Advocates filed her written submissions dated 8th December, 2025. Mr. Mungai Kamau Advocate commenced his submissions by informing the Court that the suit was initiated by way of Originating Summons dated 2nd December 2024 by the Plaintiff seeking orders that this Honourable Court declares that the title deed in the name of the Defendant for all that parcel of land registered as LR. No. KWALE/DIANI/1170 had been extinguished by the Plaintiff’s land adverse possession thereof for a period of more than 12 years. They further sought orders that the Plaintiff be declared owner of the said parcel of land and an order do issue directing the Land Registrar, Kwale Land Registry, to register the Plaintiff as the absolute proprietor of the said parcel of land and that the costs of this application be in the cause. 15. The Learned Counsel submitted that the Defendant was duly served via substituted service by advertisement in “***the Daily Nation”*** Newspaper, but failed to enter an appearance or file a response opposing the suit. They submitted that the Defendant’s failure to enter an appearance and file a response or bring in evidence to oppose the application renders the Plaintiff’s suit as unopposed and the Plaintiff’s Orders should be allowed as prayed. The Plaintiff’s evidence was corroborated with the evidence of the neighbour, M/s. Betty Muraya. In the case of: ***“Gateway Insurance Company Limited – Versus - Jamila Suleiman & Another [2018] e KLR”*** the Court held:- ***“it is therefore my finding that based on the only evidence on record, which evidence was not challenged even in cross-examination, it cannot be successfully contended that the Respondents failed to prove the said factual averments…”*** 1. On the analysis of the law and applicable principles, the Learned Counsel submitted that the main issue for determination by this Court was whether the Plaintiff had acquired title by way of adverse possession. The Learned Counsel relied on the provision of Section 38 (1) of the Limitations of Actions Act, Cap. 22 and Order 37 Rule 7(1) of the Civil Procedure Rules provides that: **“an application under Section 38 of the Limitation of Actions Act shall be by way of originating summons.”** 1. The doctrine of adverse possession had, in the long run, been settled by setting out the requirements that an Applicant has to meet for the orders that the land be transferred in its name. They must demonstrate to the Court that they have been in possession of the said parcel of land openly for a period of not less than 12 years consecutively without any interruption by the registered owner of the land. 2. The Learned Counsel submitted that the Plaintiff herein had proved that she had been in continuous, open, exclusive, and uninterrupted occupation and possession of the suit property for over 12 years. As a result of the said occupation, she has acquired proprietary rights over the said portion of land by way of adverse possession. The Plaintiff proved that she had lived on the suit property, developed it by putting a perimeter wall, structures for living, and had put in animals and did farming to the exclusion of the registered owner, who had never made any claim on the land. 3. It was the Learned Counsel’s submission that she had satisfied the ingredients of adverse possession. ***“Maweu – Versus - Liu Ranching & Farming Cooperative Society 1985 KLR 430”*** the rationale for the principle of adverse possession was set out by the courts as follows: - ***“Thus, to prove title by adverse possession, it was not sufficient to show that some acts of adverse possession had been committed. It was also to prove the possession claimed was adequate, in continuity, in publicity, and in extent, and that it was adverse to the registered owner. In law, possession is a matter of fact depending on all circumstances.”*** 1. In the case of ***“Tabitha Waitherero Kimani – Versus - Joshua Ng’ang’a [2017] eKLR”***, the Court enumerated the grounds to be satisfied in a claim for adverse possession as: - ***“(A) OPEN AND NOTORIOUS USE OF THE PROPERTY*** ***For this condition to be met, the adverse party’s use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert a claim. The occupation and use of the property by the adverse party must be of such character as would give notice to a reasonable person that someone would claim. If a legal owner knows, this element is met. This condition is further met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.*** ***(B) CONTINUOUS USE OF THE PROPERTY –*** ***The adverse party must, for Statute of Limitations purposes, hold that property continuously for the entire limitations period, and use it as a true owner would for that time. This element focuses on the adverse possessor's time on the land, not how long the true owner has been dispossessed of it. Occasional activity on the land with long gaps in activity fails the test of continuous possession. If the true owner ejects the adverse party from the land, verbally or through legal action, and after some time the adverse party returns and dispossesses him again, then the statute of limitations starts over from the time of the adverse party's return. He cannot count the time between his ejection by the true property owner and the date on which he returned.*** ***(C) EXCLUSIVE USE OF THE PROPERTY –*** ***The adverse party holds the land to the exclusion of the true owner. If, for example, the adverse party builds a barn on the owner's property, and the owner then uses the barn, the adverse party cannot claim exclusive use. There may be more than one adverse possessor, taking as tenants (i.e., owners) in common, so long as the other elements are met.*** ***(D) ACTUAL POSSESSION OF THE PROPERTY – The adverse party must physically use the land as a property owner would, in accordance with the type of property, location, and uses. Merely walking or hunting on land does not establish actual possession.*** 1. According to the Learned Counsel, the Plaintiff, vide her Supporting Affidavit, avers that she has been living, occupying, farming, and has built permanent dwelling structures on the suit property. She avers that she had been in occupation continuously and uninterrupted for over 20 years with her family. The Plaintiff also averred that since she took physical possession and occupation of the subject property, the Defendant had never shown up on the suit property to lay claim. They drew the Court’s attention to the matter of:- ***“Rose Cherop Boit – Versus - Peter Wangila Wambulwa (2014) eKLR”*** where the Learned Judge in Paragraph 8 of the Judgement stated: - ***“The Plaintiff's statement that she lives with her family on this land is not challenged. Neither is her evidence that she has utilized the land and has sugar cane on it contradicted. In the absence of contrary evidence, I am satisfied that the Plaintiff is in possession of the suit land. Her possession has dispossessed the Defendant of user and occupation of the land for the purpose for which he may have intended to use it.”*** 1. Further, the Court gave orders that:- ***“The Defendant’s title to L.R. E. Bukusu/E. Sangalo/1068 be and is hereby declared extinguished by operation of the law. ii). The Defendant is directed to execute all necessary documents transferring the land parcel E. Bukusu/E. Sangalo/1068 to the Plaintiff forthwith and in default, the Deputy Registrar of the court to execute the necessary documents on behalf of the defendant to vest/transfer the suit land E. Bukusu/E. Sangalo/1068 to the Plaintiff. iii). No costs of the suit are awarded since the suit is undefended. These are the orders of the court.”*** 1. To support the above averments, the Plaintiff annexed copies of photos of the suit property marked as “LWH - 3a, b & c” showing the structures she developed and that she had been residing in since the year 2003, and has since done some animal farming and connected to piped water, and incurred electricity on the suit property. The exhibits produced show that the Plaintiff was in actual possession of the suit property and that she resided and did farming without any interruption and did so adequately, in continuity and in publicity at the property. In the case of ***“Mburu – Versus - Musembi (Environment & land case E005 of 2023 KEELC 22145 (eKLR)”***, the Learned Judge had the following to say when it came to actual possession of a property:- ***“The Plaintiff has produced photographs to show that he has built a permanent house on the suit land, and he is also farming thereon. This is to the exclusion of the Defendant. The Plaintiff has thus proved that he is in possession of the suit land and that possession has dispossessed and discontinued the Defendant’s use of the land as was held in the case of Wambugu – Versus - Njuguna (supra). For the above reasons, the Court finds that the Plaintiff has been able to prove that he is entitled to a claim of 0.80 acres through adverse possession out of land parcel No.Kakuzi/Kirimiri/Block 9/1011, which has now been subdivided into land parcels No. Kakuzi/Kirimiti 9/4956-4959. He should be registered as the proprietor of the said parcels of land by virtue of adverse possession.”*** 1. As they concluded this part of their submissions, they drew the Court's attention to the decision in the case of:- ***“Mtana Lewa – Versus - Kahindi Ngala Mwagandi (2015) eKLR”***, Justice Asike- Makhandia held that: - ***“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it, and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, 12 years. The process springs into action essentially by default or inaction of the owner.”*** 1. The Learned Counsel submitted on *aminus posidendi*, that this was defined as the intention to possess land to the exclusion of all other persons, including the owner. The intention must be straight and sufficiently clear to the owner. Therefore, the mere fact that one was enjoying a piece of land did not guarantee one's claim of adverse possession. The possession of the adverse possessor should not be concurrent with that of the owner. 2. In the case of:- ***“Sisto Wambugu – Versus - Kamau Njuguna (1983) KLR 172”***, the Court of Appeal held that:- ***“in order to acquire adverse possession, the owner of the land must have lost his right to the land by either being dispossessed of it or by discontinuing his possession of it.”*** 1. From the evidence of the Plaintiff, she had demonstrated that she had been in physical possession and occupation of the land to date. The Plaintiff had resided there peacefully without any interventions from the Defendant. 2. On the issue of open, notorious and hostile use of the property. The Learned Counsel averred that in this case, for a party to claim adverse possession over a piece of land, the practice required that the person must have been in an open and notorious possession. This is meant to ensure that in case an adverse possessor comes into a registered land, the paper owner was notified of the same. Thus, possession should not be concealed. Therefore, time for action could not start running against a paper owner unless he was able to observe or witness his land being possessed by that other person claiming adverse possession. The Courts tend to apply the test of reasonability while looking at the requirement. It was only fair that the occupancy must be of a character that would notify a reasonable man. Notorious possession included fencing, erecting sign signpost, planting crops, and parking of cars, amongst others. This action would definitely bring to the attention of a reasonable man. 3. Hostile use of property meant that the adverse possessor must have entered into the land without the permission of the owner. From the above, they submitted that the Plaintiff had resided peacefully in the suit property without the instructions or permissions of the Defendant. The Plaintiff further produced evidence of PW - 2, which was the testimony of the neighbour who has resided close to the suit property since the year 2002 and had known the Plaintiff since the year 2005. The evidence of PW - 2 showed that the Plaintiff had met the conditions for the acquisition of property through land adverse possession. 4. In conclusion and based on the foregoing, they submitted that the Plaintiff had proved all the ingredients required for a claim of the land by adverse possession to the exclusion of the Defendant and they submitted that the prayers pleaded in the suit herein be allowed as prayed. 5. **Analysis and Determination** 6. I have carefully read and analyzed all the pleadings herein, both the oral and all the documentary evidence adduced in court, the written submission, the cited authorities made by the Plaintiff and the relevant provisions of the law. 7. In this regard, in order to reach an informed, reasonable, fair and Equitable decision, there are three (3) key issues for determination is: 8. ***Whether the Plaintiff has made out her claim?*** 9. ***Whether the Plaintiff is entitled to the prayers sought?*** 10. ***Who meets costs of the suit.*** ***ISSUE No. a)*. *Whether the Plaintiff has made out her claim*** 1. Under this sub–heading, the Honourable Court has deciphered that the main issue is whether the Plaintiff, Loise Waithira Hinga, is entitled to ownership of all that parcel of land known as LR. No. KWALE/DIANI/1170, registered in the name of the Defendant, by virtue of adverse possession. Although the suit was undefended, the Plaintiff had a duty to formally prove her case on a Preponderance of Probabilities and the balance of convenience as required by law. In the case of ***“Kirugi and Another – Versus - Kabiya & 3 Others (1987) KLR 347”***, the Court of Appeal held that:- ***“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof. Likewise, failure by the Defendant to contest the case does not absolve a Plaintiff of the duty to prove the case to the required standard.”*** 1. Similarly, in the case of:- ***“Gichinga Kibutha – Versus - Caroline Nduku (2018) eKLR”***, the Court held that:- ***“It is not automatic that (in) instances where the evidence is not controverted the Claimant shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”*** 1. Further, in the case of:- ***“Samson S. Maitai & Another – Versus - African Safari Club Ltd & Another [2010] eKLR”***, Emukule J observed: ***“……. I have not seen a judicial definition of the phrase ‘Formal Proof’. ‘Formal’ in its ordinary Dictionary meanings - refers to being ‘methodical’ according to rules (of evidence). On the other hand, according to Halsbury’s Laws of England, Vol. 15, para, 260, ‘proof’ is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption.”*** 1. In the case of”- ***“Rosaline Mary Kahumbu – Versus - National Bank of Kenya Limited [2014] eKLR”***, the Court held: - ***“In contrast, at a formal proof hearing, if the party with the onus of adducing evidence fails to satisfy the truth threshold, the matter would stand to be dismissed on the basis that it was unmeritorious and did not raise sufficient proof of any issues of fact or law. It would be heard and determined on its merits.”*** 1. In this regard, in a formal proof hearing, a party with the onus of adducing evidence must produce such sufficient evidence which must satisfy the court as to its truth. It is trite law that in any suit of this nature, the party who seeks to rely on the existence of a fact or a set of facts must provide evidence that those facts exist. From the pleadings filed, evidence adduced and submissions made by and on behalf of the Plaintiff the issue that arises for this court’s determination is whether or not the Plaintiff has acquired title to the suit land by operation of the doctrine of land adverse possession. 2. Where a Defendant fails to adduce evidence in support of the Defence and fails to attend court to prosecute the case, the Plaintiff’s evidence escapes the possibility of being controverted by defence evidence. It escapes the scrutiny of cross-examination by the Defendant. It therefore stands unchallenged and uncontroverted. However, the Plaintiff does not escape the burden and standard of proof which he has to satisfy and discharge in accordance with the law in order for his claim to succeed. 3. This is what in law is termed as the **“Burden of Proof”** and is encapsulated for by the provision of Section 107 of the Evidence Act Cap. 80 laws of Kenya which provides as follows:- ***“107. Burden of Proof (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”*** 1. The concept of “**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 in the provision of Sections 7, 13 and 38 of the Limitation of Actions Act, Cap. 22. Section 7 provides that:- **“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”** 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 Plaintiff testified that she entered the suit property in the year 2003, constructed permanent structures, fenced the land, installed electricity and water, and engaged in farming and livestock keeping. PW2 corroborated this testimony, confirming visible occupation and developments since 2005. The evidence demonstrates open, continuous, exclusive, and uninterrupted possession for over 20 years. 3. In the case of:- ***“Kimani Ruchure – Versus - Swift Rutherfords & Co. Ltd (1980)KLR 10”*** Kneller J held that: ***“the Plaintiffs have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion).”*** 1. 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 – Versus - Donovan [1948] 2 All ER 11, which we consider as still good law in this country, and the previous decisions of this Court, there is a statutory bar in section 7 of the Act for recovery of land including the recovery of possession of land after expiration of 12 years. It follows, therefore, that, to hold that execution proceedings to recover land are excluded from the definition of “action” in section 4 (4) of the Act would be inconsistent with the law of adverse possession…*** ***..as regard recovery of judgment debts, the construction of Section 4 (4) of the Act by local courts barring recovery after 12 years, is as shown in Lowsley – Versus - Forbes [1999] 1 AC 329 , consistent with construction given by English Courts to Section 2 (4) of the Limitations Act 1939 and its predecessors for over 100 years that a judgment debt becomes statute barred after 12 years.’*** 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. Therefore, to determine whether the Applicants’ rights accrued the Court will seek to answer the following 10. ***How did the Applicant take possession of the suit property?*** 11. ***When did he take possession and occupation of the suit property?*** 12. ***What was the nature of his possession and occupation?*** 13. ***How long has the Applicant been in possession?*** 14. Fundamentally, adverse possession is 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 pre - requisites 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. 15. Therefore, the question was the possession uninterrupted for more than twelve years? The answer is of course to the affirmative because the Defendant never interrupted their stay on the suit property. They had had uninterrupted occupancy of the suit property for more than 12 years. In the case of:- ***“Githu – Versus - Ndeete [1994] KLR”*** quoted by the Court of Appeal in the case of:- ***“Kenya Commercial Bank (suing as Administrator of the Estate of Paul Njoroge Muchene) – Versus - Sarah Njeri Muchene”*** the court held that: - ***“ time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his rights or when his right is admitted by adverse possession. Assertion occurs when the owner takes legal proceedings or makes an entry into land. Giving notice to quit cannot be effective assertion of right for the purpose of stopping the running of time under the Limitation of actions Act.*** ***A title by adverse possession ca be acquired under the Limitation of actions Act to a part of the parcel of land to which the owner holds title.”*** 1. Additionally, in the case of:- ***“James Obande Wasui – Versus - Jeremiah Ochwada Musumba [2002] eKLR”*** the court held that as an occupier’s right, adverse possession runs with the land irrespective of change in proprietorship. Under the provision of:- Section 28 of the Land Registration Act, No. 3 of 2012 as at the time of transfer of the suit land, the land was subject to an overriding interest in the form of rights of adverse possession in favour of the Plaintiff. Section 28 provides: **‘Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted in the register-** **a. ….** **b. …..** **c. ….** **d. ….** **e. ….** **f. ….** **g. ….** **h. Rights acquired or in the process of being acquired by virtue of any written law relating to the Limitation of actions or by prescription.** 1. In the current case it cannot be said that the owner asserted his rights when there was a court order preserving the status quo. In the foregoing, it is my finding from the above that the Plaintiff did satisfy the requirements to be declared in adverse possession as she had demonstrated to have been in actual possession of the land for 12 years. Therefore, the Court finds that the Plaintiff has successfully made out her claim for ownership of the suit property by way of adverse possession. ***ISSUE No. b). Whether the Plaintiff is entitled to the prayers sought*** 1. Under this sub–heading, the Honourable Court considers whether the Plaintiff, having proved her claim of adverse possession, is entitled to the reliefs sought in the Originating Summons. The Plaintiff prayed for a declaration that the Defendant’s title to Land Parcel No. KWALE/DIANI/1170 has been extinguished, that she be registered as the absolute proprietor, and that the Land Registrar Kwale do issue her with a title deed. 2. As already demonstrated above, the law is clear. The provision of Section 17 of the Limitation of Actions Act, Cap. 22 provides that upon expiry of the limitation period, the registered owner’s title is extinguished. Section 38 of the same Act empowers the Court to order that the adverse possessor be registered as proprietor in place of the registered owner. The procedure is anchored in the provision of Order 37 of the Civil Procedure Rules, 2010, which requires such claims to be brought by way of Originating Summons supported by affidavit evidence and certified extracts of title. 3. The Plaintiff has demonstrated, through her testimony and corroboration by PW- 2, that she has been in open, continuous, exclusive, and uninterrupted possession of the suit property for over 20 years. The Defendant has neither asserted ownership nor taken steps to recover possession. This was corroborated in the case of:- ***“Wilson Njoroge Kamau – Versus - Nganga Muceru Kamau (Supra)”***, the Court held that fencing, building, and cultivation are strong indicators of adverse possession. Similarly, in ***“Lewa – Versus - Mwagandi (Supra)”***, the Court emphasized that permanent developments and visible occupation establish adverse possession. 4. Further, in the case of:- ***“Songoi – Versus - Songoi [2020] KECA 942”***, the Court clarified that adverse possession runs with the land irrespective of change in proprietorship. Thus, the Respondent’s continued registration as owner does not defeat the Plaintiff’s accrued rights. 5. On the facts and authorities, the Court finds that the Plaintiff has satisfied the requirements for adverse possession. She is therefore entitled to the prayers sought, namely: 1. **A declaration that the Respondent’s title has been extinguished.** 2. **An order directing the Land Registrar, Kwale, to register the Plaintiff as the absolute proprietor of Land Parcel No. KWALE/DIANI/1170 and issue her with a title deed.** 6. Thus, the Court holds that the Plaintiff is entitled to the reliefs sought in her Originating Summons and now converted to a Plaint hereof. ***ISSUE No. c).* *Who bears the costs of the suit*** 1. Under this sub–heading, the Honourable Court considers the question of costs. Costs is at the discretion of Court. The Black Law Dictionary defines cost to means:- **“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”** 1. The general principle is that costs follow the event, unless the Court for good reason orders otherwise. This principle is codified under the provision of Section 27(1) of the Civil Procedure Act, Cap. 21, Laws of Kenya, which provides: **“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”** 1. Additionally, the provision provides for ‘costs of and incidental to all suit or application’ which expression includes not only costs of suit but also costs of application in suit as described by Mulla (supra) at 536. Furthermore, Rtd. Justice Richard Kuloba in his book ***Judicial Hints on Civil Procedure, 2nd Edition, 2005*** at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. Accordingly, the event means the result of the entire litigation. The order as to costs as provided for under Section 27 remains at the discretion of the court. 2. The award of costs is therefore not cast in stone but courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the suit but also the circumstances of each case. In ***“Morgan Air Cargo Limited – Versus - Evrest Enterprises Limited [2014] eKLR”*** the court noted that; ***“The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that ‘’Cost follow the event’’ was driven by the fact that there could be no ‘’one-size-fit-all’’ situation on the matter. That is why section 27(1) of the Civil Procedure Act is couched the way it appears in the statute; and even all literally works and judicial decisions on costs have recognized this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances differ from case to case.”*** 1. In the present case, the Plaintiff has succeeded in proving her claim of adverse possession. The Defendant, though served, failed to contest the suit, and the Plaintiff’s evidence stood uncontroverted. The Plaintiff has therefore succeeded in her claim, and in line with the principle that costs follow the event, she is entitled to the costs of the suit. 2. Accordingly, the Court finds that the Respondent shall bear the costs of the Originating Summons dated 2nd December, 2024 (converted to Plaint) and filed in this Court. 3. **Conclusion and Disposition** 4. In the end, having conducted an in‑depth analysis of the framed issues herein, the Honourable Court, on the Preponderance of Probabilities, finds that the Plaintiff has established her case against the Defendant. By all means, the Plaintiff has demonstrated uninterrupted, exclusive, and adverse possession of the suit property for a period exceeding the statutory twelve (12) years, thereby extinguishing the Defendant’s title under the provision of Section 17 of the Limitation of Actions Act, Cap. 22. Accordingly, the Court proceeds to make the following specific orders:- 5. **THAT Judgement entered whereby the suit by the Plaintiff/Applicant as per the Originating Summons dated 2nd December 2024 succeeds in its entirety and is hereby allowed with costs.** 6. **THAT an order do and is hereby issued declaring that the Defendant’s title to Land Parcel No. KWALE/DIANI/1170 measuring 0.101 hectares has been extinguished by operation of law, and that the Plaintiff, Loise Waithira Hinga, be registered as the absolute proprietor thereof.** 7. **THAT the Land Registrar, Kwale Land Registry, do and is hereby directed to register the Plaintiff as the proprietor of Land Parcel No. KWALE/DIANI/1170 and issue her with a title deed accordingly.** 8. **THAT the Defendant, his agents, servants, and/or any other persons acting under his authority be restrained by permanent injunction from entering upon, interfering with, or in any manner disturbing the Plaintiff’s peaceful occupation and possession of the suit property.** 9. **THAT the Plaintiff shall have the costs of the Originating Summons (Converted to a Plaint) dated 2nd December 2024.** **IT IS SO ORDERED ACCORDINGLY.** **JUDGMENT DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED AND DATED AT KWALE THIS……7TH ….………DAY OF ………MAY..……..2026.** **…………………………….** **HON. MR. JUSTICE L. L. NAIKUNI,** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Judgement delivered in the presence of:** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Mungai Kamau Advocate for the Plaintiff/Applicant. 3. No appearance for the Defendant/Respondent.